2021 P Cr (PLP)

ABDUL MAALIK GADDI, J.

Through this criminal appeal, the appellant has assailed the legality and propriety of the order dated 01.12.2018, passed by the learned Additional District and Sessions Judge III, Karachi East, in Criminal Complaint No. 128 of 2017, filed by the appellant against the private respondents under sections 3 and 4 of the Illegal Dispossession Act, 2005, whereby the learned trial Court alter hearing the parties has dismissed the said complaint through impugned order, hence this appeal.

2. It appears from the record that the appellant filed complaint under sections 3 and 4 of the Illegal Dispossession Act, 2005, against the private respondents claiming himself to be duly constituted attorney of owner of plot No. A-157, situated at Block-10, Scheme 36, Gulistan-e-Johar, Karachi, namely Sajid Mehmud Bhandari son of Mushtaq Hussain Bhandari, who at present is residing in London/U.K. The appellant has contended in the appeal that since the real owner of the said property is residing at London, and he has appointed him as his Attorney and he (the complainant) has been visiting the subject property from time to time. It is also contended in the appeal/complaint that earlier in the year 2010, some land mafia people illegally occupied the subject property, while the real owner Sajid Mehmud Bhandari was residing in Pakistan at that time, he filed the complaint under the Illegal Dispossession Act, 2005, bearing No. 63 of 2010, which was put into his favour and he was to be in possession of the subject property. It is further contended in the criminal appeal/complaint that the complainant was suffering from Chicken Gonia, therefore, he was unable to visit the subject property and in the month of 2017, when he visited the said property, the private respondents were found in possession of the property. The complainant/ appellant introduced himself and requested them to vacate the subject property, whereupon the proposed accused came in wrath and extended life threats to the complainant, thereafter the complainant moved application to the concerned SHO but he did not take any action, hence he moved application to S.P. Gulshan Town and to D.S.P., but instead to take any action, both of them directed the complainant/appellant to approach competent Court of law. The complainant/appellant further contended that thereafter he filed criminal petition under section 22-A, Cr.P.C., which was allowed and SHO was directed to record complainant/appellant's statement under section 154, Cr.P.C. but neither the SHO recorded the complainant's statement nor private respondents restored the possession of the subject property to him.

3. Learned Counsel for the parties have been heard at length and perused the record. Learned Counsel for the appellant has submitted that the order passed by the learned trial Court is against law and facts and further submitted that the learned trial Court while passing the impugned order did not consider the facts and documents on record in its letter and spirit but hurriedly dismissed the complaint without assigning any valid or good reason. During the course of arguments he has also reiterated the same facts and grounds which he has stated in the memo of appeal.

4. As against this, learned APG and learned Counsel for private respondents have supported the impugned order by arguing that the complaint was filed by the Attorney on behalf of the alleged owner who is not competent to file the same being an Attorney in criminal complaint. They have also submitted that the impugned order has been passed on 01.12.2018 and this appeal has been filed on 16.02.2019, much after expiry of allotted period for filing the appeal, therefore, the same may be dismissed along with listed applications.

5. Heard parties advocate and record perused.

6. It appears from the record that the complaint was filed by the complainant Sajid Mehmud Bhandari, through his attorney Usman Saleem. During the course of arguments, I have specifically asked the question from the learned Counsel for the appellant that how the criminal complaint was maintainable under the law through an Attorney. The learned Counsel for the complainant has failed to satisfy this Court as to whether an Attorney can file criminal complaint/appeal. However, in this regard. I have gone through the case law reported in 2016 MLD 1238 (Re: Muhammad Qasim v. Station House Officer Police Station Khudabad, District Dadu and 7 others). In the cited case law the point involved in this case has been discussed. For the sake of convenience, it would be proper to reproduce operative parts of the said judgment which are reproduced as under: "

13. With regard to plea that in criminal jurisdiction one cannot file direct complaint being attorney, it is worth to add here that in criminal administration of justice every person can bring the law into motion by lodging an FIR. Needless to add that a complaint under this Act is equated with that of an FIR lodged under section 154, Cr.P.C. Reference, if any, can well be made to the case of `Inayatan Khatoon v. Mohammad Ramzan".

14. Now let's examine whether an attorney can act as a complainant or a witness in criminal matters or otherwise?. The term 'attorney', legally, in most general sense draws a picture of one who is not speaking for himself but for his 'principal'. As per Black's Law Dictionary (fourth edition) the term 'attorney' is defined as:

'In the most general sense this term denotes an agent or substitute or one who is appointed and authorized to act in the place of or stead another'. Per Marriam-Webster, it is defined as: `one who is legally appointed to transact business on another 's behalf'. Since the 'Criminal administration of justice' recognizes only those as a witness or complainant who either have seen; heard or least perceived any fact towards the offence hence an 'attorney', being not speaking of his own knowledge, would not fall within meaning of 'witness/complainant'. Thus, an attorney cannot legally, under such status of attorney, file the FIR or a criminal complaint."

7. From the perusal of above paragraphs it reveals that an 'attorney' in criminal lis or complaint could not be agitated or defended through the `attorney'.

8. It also appears from the record that impugned order has been passed on 01.12.2018, but this appeal was filed on 16.02.2019. much after expiry of period of limitation and in this connection the appellant has filed an application under section 5 of Limitation Act for condoning the period of limitation. Under section "8A" of the Illegal Dispossession Act, 2005 provides thirty days period to file appeal against any order passed by the trial Court in the said cases but as observed above, the appeal was filed much after expiry of period of limitation. During the course of arguments, I have also specifically asked the question from learned Counsel for the appellant to explain the delay in filing this appeal, he has no satisfactory answer with him. I have further gone through the case-law reported in 1998 SCMR 786 (Re: Sirajun-Munira v. Pakistan through Assistant Deputy Director General (Adorn.) Islamabad, wherein it has been held that delay of each day in filing of appeal must be reasonably explained. But during hearing of this case, no explanation whatsoever has been made by the appellant, hence from perusal of record it appears that appeal filed by the appellant is also time barred.

9. Perusal of record shows that complainants Attorney has claimed that the complainant is the owner of the subject property but he has not brought on record a single stance to show as to whether he or the real owner was occupying the subject property or any one of them was dispossessed from there. Lease in the name of complainant is not sufficient enough to fulfill the requirement of the law in which relief has been claimed by the complainant. Even otherwise, the controversy between the parties is a dispute of civil nature for which parties should approach Civil Court, therefore, in my considered opinion, trial Court has rightly dismissed the complaint after appraisal of the whole material available on record. In view of the above, I find no merit in this criminal appeal which is dismissed along with listed applications. SA/U-9/Sindh Appeal dismissed.