2008 PLP 1702 (MLD)

ARSHAD NOOR KHAN, J.

Granted subject to all just exceptions.

2. This Revision under sections 435/439, Cr.P.C. has been directed against the order, dated 23-6-2007, passed by the learned IVth Additional Sessions Judge, Karachi-East, in direct Complaint No.24 of 2007 (Mumtaz Hussain v. Dr. Nasir Karim and another), whereby the direct complaint, filed by the applicant under section 4 of Illegal Dispossession Act, hereinafter referred to as the "Act, 2005" has been dismissed. The facts leading rise to the present Revision Application in brief are that the applicant and his wife are the owners of Plots, bearing Nos. B-29 and B-30, admeasuring 135 square yards of Survey No.83, situated in Kehkashan Housing Project, Deh Ding. Tapo Malir, Taluka and District Karachi, which is legally owned by them. It is further stated in the complaint that the respondents dispossessed the applicant and his wife from their properties, as such they have committed the offence punishable under section 4 of the Act, 2005. The learned lower Court held inquiry through the S.H.O. in terms of section 5 of the Act, 2005 hence the present Revision. I have heard Mr. Attaullah Khan, learned counsel for the applicants, and Miss Afsheen Aman, learned counsel for the State. Mr. Attaullah Khan, learned counsel for the applicant states that the applicant and his wife have been illegally dispossessed by the respondents Nos. 1 and 2 and the learned lower Court did not consider the evidence which was available on record and committed illegality while dismissing the complaint filed by the applicant, as such the order passed by the learned lower Court may be set aside and the matter may be remanded for fresh adjudication on merits. Miss Afsheen Aman, learned counsel of the State, vehemently refuted the arguments advanced by the learned counsel for the applicant and contended that the civil suits in-between the parties are pending adjudication before the competent Court, as such the title of the applicant itself is under clouds and unless the title of the applicant is cleared, no proceedings under Act, 2005 may be taken, as such the learned lower Court rightly dismissed the direct complaint. I have considered the arguments advanced on behalf of the parties and have gone through the evidence available on record. Admittedly, Suit No.826 of 2006, filed by the applicant against the respondents for injunction is pending adjudication before the Civil Court, wherein the applicants have prayed for perpetual injunction regarding their dispossession from the property in dispute, whereas respondents Nos. 1 and 2 have filed Suit No.1211 of 2006 against the applicant for declaration, injunction, cancellation and perpetual injunction against the applicant with regard to the same property. It is, therefore, clear that the disputes in-between both the parties with regard to same property involved in the present complaint are pending adjudication before the competent Courts wherein both the parties are required to establish their claims by leading evidence pro and contra to their respective claims and unless the titles of the parties are cleared by the Civil Court, the criminal proceedings under the Act, 2005 could not be initiated. The learned lower Court rightly passed the order by holding that the matter is sub judice before .the learned civil Court, as such the proceedings under Act, 2005 need not to take any cognizance and I do not find any illegality and irregularity to interfere in the findings recorded by the learned lower Court. The Revision Application has, therefore, no substance and is hereby dismissed summarily. H.B.T./M-122/K Application dismissed.