2017 PLP 201 (YLRN)

FAHIM AHMED SIDDIQUI, J.

This criminal appeal has been directed against the judgment dated 17.11.2009, passed by learned Additional Sessions Judge-Vth, Karachi South, whereby, the appellant was convicted and sentenced under Section 3 of Illegal Dispossession Act, 2005 for 03 years R.I. and fine of Rs.10,000/-, in case of default in payment of fine, the accused shall further undergo R.I. for one year. It was also directed that the said amount, if recovers, should be paid to the complainant as compensation. The trial court, further directed the appellant to restore the possession of flat in question to respondent No. 1 (complainant).

2. The facts, in brief are that respondent No. 1 filed a criminal complaint under Section 3 of Illegal Dispossession Act, 2005 in which she alleged that she purchased Flat No. 507, City View Apartments, D-III, Depot Lines, Saddar, Karachi from one Aziz-ur-Rehman through sale agreement dated 13-01-2005 for an amount of rupees 700,000/-. According to her, the said flat was purchased by the previous owner (Aziz-ur-Rehman) from builder M/S Qamran Construction (Pvt.) Ltd. and he was in possession of the original receipts of payment, allotment and possession letters. She further stated in the complaint that the said Aziz-ur-Rehman handed over all the documents except sublease (executed by the builder) to her and also executed a registered General Power of Attorney in favour of her husband. It is the case of complainant/ respondent No. 1 that she renovated the flat in question and rented it out to Sobedar Mohammed Shamim of Pakistan Coast Guard for four months but she kept one room for her own use. It is set out in complaint that appellant/convict had criminally trespassed into the flat in question after it was vacated by her tenant by breaking locks and illegally occupied the flat in question on 28-04-2005.

3. The learned Additional Sessions Judge-Vth, Karachi South invoked jurisdiction under Illegal Dispossession Act on the ground of allegations levelled in the complaint and issued notices to appellant and also referred the matter to concerned SHO for enquiry/investigation. On the other hand, during enquiry/investigation, the statement of appellant/convict was also recorded by police in which he took plea that he had purchased the flat in question from one Intizar Ali for an amount of Rs. 600,000/-and the said owner has executed special power of attorney and he handed over payment receipts and some other documents to him. According to him, he rented out the said flat to his partner Aziz-ur-Rehman, who was after sometime sent to jail in some criminal case. After his release, he asked him to vacate the flat and it was vacated by him after some settlement on 28-04-2005 and since then he was residing in the said flat. He also disclosed that meanwhile husband of appellant namely Inayat Ali also started claiming ownership of flat, as such he filed a Civil Suit No. 442/2005. However, during enquiry/investigation, he did not produce sublease or original receipts to police for inspection.

4. On the basis of enquiry/investigation, the trial court took cognizance in the instant matter and the appellant (being accused in the case) was asked to execute a PR bond and then formal charge was framed against him to which he pleaded not guilty and claimed trial. During trial, the complainant and her witnesses were examined and complainant also produced some documents like payment receipts to builder, allotment and possession letters, sale agreement in the name of complainant/ respondent No. 1 and General Power of Attorney executed by Aziz-ur-Rehman in favour of the husband of respondent No.

1. After examination of the witnesses of complainant/respondent No. 1, the side of complainant was closed and statement of appellant/convict was recorded under section 342 of Cr.P.C., in which he reiterated that he is the purchaser of the flat in question and in the capacity of owner he is residing therein. He also produced certain documents like power of his counsel, photocopies of receipts, summons of suit filed by him, tenancy agreement, application moved to SHO, special power of attorney executive by Intizar Ali and photocopy of application for granting certified copies of civil Suit No. 442/2005. He also produced photocopies of electricity and gas bills and receipts of maintenance charges for the Association of Project. The appellant also examined one Ameer Ubaidullah Khan in his defence and then the side of appellant/convict was closed.

5. The learned counsel for the appellant argued the matter at length. The main contention of the learned counsel for the appellant is that the instant case does not fall under Illegal Dispossession Act but in fact, it is a case of specific performance of the contract. According to him, respondent No. 1 is not in possession of title documents therefore she cannot be considered as the owner nor she fully and properly established before the trial court that she was the occupier of the flat in question. He took reliance from PLD 2007 Supreme Court 423 and PLD 2007 Lahore 231.

6. On the other hand, the learned counsel for the respondent No. 1 supported the impugned judgment by saying that the respondent No. 1 has discharged her onus before the trial court and case against the appellant is fully established. According to him, the document produced before the trial court by the attorney of respondent No. 1 is a registered document as such its genuineness is out of question. He submitted that the sale agreement executed in favour of respondent No. 1 duly supported by registered General Power of Attorney in favour of the husband of respondent No. 1 executed by the previous owner is sufficient to establish entitlement of the respondent No. 1 on the flat in question. According to him. the case of complainant/respondent No. 1 is fortified with the fact that all the original receipts duly issued by the builder are in possession of respondent No.

1. The learned APG adopted the arguments of private respondent No.1.

7. In the light of submissions made, I have scanned the record and proceedings and scrutinized the judgment of the trial court. From the perusal of records, it appears that the appellant is convicted on the ground that the property was owned by the respondent No. 1 and she was also occupier of the same when the appellant allegedly took possession of the property. It is worth noting that in Para No. 6 of the complaint, the complainant stated that on 28-4-2005, her tenant namely Shamim vacated the flat and he reported that appellant had threatened him for dire consequences and demanded possession but he (tenant) did not handover the same to him. In Para 7 of complaint, it is said that the complainant got white washed the flat as he intended to shift therein and then it was locked. In Pam 8, she stated that when on 28-4-2005 her husband went to the flat with Hawaldar Muhammad Qasim of Coast Guard, he found that the locks were broken and flat was illegally occupied by appellant. If flat was vacated on 28-5-2005 and it was whitewashed after vacation, then how on the same date complainant was dispossessed. I think these contradictory sentences demonstrate the intention of the complainant to invoke the provisions of section 3 of Illegal Dispossession Act, which reads as:

3. Prevention of illegal possession of property, etc.

(1) No one shall enter into or upon any property to dispossess, grab, control or occupy it without having any lawful authority to do so with the intention to dispossess, grab, control or occupy the property from owners or occupier of such property. (2) Whoever contravenes the provisions of the subsection (1) shall, without prejudice to any punishment to which he may be liable under any other law for the time being in force, be punishable with imprisonment which may extend to ten years and with fine and the victim of the offence shall also be compensated in accordance with the provision of section 544-A of the Code." From the perusal of subsection (1) of Section 3 of Illegal Dispossession Act 2005, it is clear that to attract the provision of the said statute, the legislature has put two conditions (i) Act of dispossess, grab, control, occupy without lawful authority (ii) Intention to dispossess, grab, control, occupy property from the actual owner. Now it is very much clear that for invoking the provisions of the Illegal Dispossession Act, the act of snatching the possession from the owner/occupier must be coupled with the intention of the accused to do so. No doubt, the intention of a person is traced from his acts and deeds and if it is established that the criminal intention is present then trial and conviction of accused is justified. At the same time, it is also necessary that the complainant must come to the court with clean hands having a clean title or lawful authority over the property in question and he has to establish that the property was really in his possession from which he was illegally dispossessed. It is held by this Court in the case of Mst. Nasreen alias Nagina through Attorney v. The State and 6 others (2014 PCr.LJ 1141) as under:-- "The applicant has failed to produce any evidence or documentary proof to establish her ownership over the subject flat and mere agitating her ownership on the strength of simple sale agreement deserves no merit for consideration, as neither she produced any registered lease deed in her favour pertaining to said flat nor she has produced any other documentary proof including amenities bills on her name or on the name of Builder duly paid by her regarding said flat that she ever remained in possession of the same. It is also worthwhile to mention that the mandatory requirement for invoking provisions of Illegal Dispossession Act 2005, is also missing in present case as the applicant has failed to mention the specific date and time of her alleged dispossession from the said flat." Similar view is taken by this Court in the case of Jamia Darul Uloom Islamia through President/Chairman v. Ilyas and others (2016 PCr.LJ 1777), where it is held as: "Complainant had to allege and show before the court that he was the actual owner or occupier i.e. in lawful possession of immovable property and accused had entered into the said property without any lawful authority."

8. In the instant case, the trial court in its verdict declared the appellant as the author of the offence of illegal dispossession. Meaning thereby that the trial court opined that the complainant is the owner/occupier of property and she was dispossessed from the same by the appellant illegally and unlawfully. In this respect, the trial court has framed two important points for determination, which are as under: "

1. Whether the complainant was owner or occupier of the flat in question on the day and time given in the complaint?

2. Whether the accused Manzoor Ali Bhatti had illegally entered upon the property in question viz: Flat No. 507, City View Apartments, D-III, Depot Lines, Saddar, Karachi, intentionally to grab and occupy the same for which he had no title documents?

9. The learned trial Judge while deciphering the above points, came to conclusion that the complainant/respondent No. 1 is the owner and occupier of the flat in question on the relevant date. In this respect, the learned judge relied heavily on the evidence of the alleged previous owner namely Aziz-ur-Rehman as well as a witness namely Muhammad Qasim, who is the marginal witness of alleged rental agreement executed between her alleged tenant and the husband/attorney of complainant/ respondent No.

1. It is worth noting that said Aziz-ur-Rehman in his deposition has acknowledged that he had not executed a proper conveyance deed in favour of the complainant/respondent No. 1 on account that sublease was not executed in his favour. It is a significant piece of evidence which indicates that the alleged seller of the flat in question himself not enjoying a good and transferable title over the property in question.

10. It is the case of complainant/ respondent No. 1 that after purchasing the property, she inducted a tenant namely Sobedar Mohammed Shamim as such she was claiming the constructive possession and occupation of flat in question. In such a situation Sobedar Mohammed Shamim is a vital and important witness but he could not be produced before the trial court. He is the person through whom constructive possession of the flat in question was claimed by the complainant/respondent No.

1. The marginal witness in his statement has stated that he is the witness of handing over and taking over of the flat in question, while the very document indicates that the flat was given to the tenant on verbal tenancy agreement. In these circumstances, the document of handing over or tenancy whatsoever it may be, itself not a believable proof of constructive possession of the flat in question by the complainant/respondent No.

1. The learned trial Judge has given undue weightage to the registered GPA. In fact, worth of registered General Power of Attorney marginalized when there is neither a sub-lease nor a sale-deed or any other document to establish ownership of the principle.

11. In the present case, appellant and respondent No. 1 both are claiming the ownership of the property in question. Both of them having certain documents claiming to be issued to their predecessor in interest from the builder of the project. Neither the complainant nor the appellant could produce the said builder and/or their agent before the trial court to verify the documents (i.e. receipts, allotment and possession letters). In these circumstances, it can be said that both the parties are in possession of document to support their claim of ownership and it may be that the documents in possession of complainant are comparatively better but it does not mean that the title of property is crystal-clear in her favour. It is my considered view that unless the clouds over the title of property of complainant/respondent No. 1 are cleared or her actual/constructive possession is established, the proceedings under the Illegal Disposition Act are not competent.

12. The upshot of the above discussion is that the instant appeal is allowed and the appellant is acquitted from the charge. The appellant is present on bail, his bail-bond is cancelled and surety is discharged. WA/M-62/Sindh Appeal allowed.