2020 PLP 457 (YLR)

FAHEEM AHMED SIDDIQUI, J.

By filing the instant criminal miscellaneous application, the applicant has called in question the order dated 23.08.2013 passed by learned Additional Sessions Judge-I, Khairpur in Criminal Misc. Application No. 19/2013, whereby dismissing a complaint filed by the applicant under sections 3 and 4 of the Illegal Dispossession Act, 2005.

2. Briefly, the facts of the case as described in the memo of instant application are that the applicant entered into an agreement with the respondents/accused Ali Mardan, Karam Hussain and Wali Muhammad in respect of some landed property being Survey No. 428 measuring 4-20 acres. It is allegedly settled between the parties that the applicant would develop the land and convert the same into commercial and residential plot, which were sold out to prospective buyers. The applicant invested more than Rs. 2,00,00,000/- in developing the land and then started publicity campaign for the sale of plots. Due to such campaign, the prospective buyers attracted and booked many plots with the applicant. The applicant, as per terms of agreement, deposited Rs. 4,30,00,000/- with the respondents as sale consideration. Allegedly, on 07.04.2013, the respondents (proposed accused) forcibly and illegally dispossessed the applicant from lawful possession of the aforesaid piece of land in presence of witnesses and removed publicity boards and other valuable material laying in the office of the applicant. It is alleged that at that time the SHO of Police Station Ranipur namely Lal Bux Dahar and five unknown persons were also accompanying the respondents/ accused. The applicant approached the police station but as the said SHO himself involved in the incident; therefore, applicant have no option but to file a criminal complaint under Sections 3 and 4 of the Illegal Dispossession Act, 2005. The said criminal complaint was entrusted to the court of learned Additional Sessions Judge-I, Khairpur, the learned Judge directed for a spot enquiry through SHO and Mukhtiarkar concerned while the respondents/accused made their appearance through an advocate. After receiving the reports from SHO and Mukhtiarkar and hearing the arguments, the learned Additional Sessions Judge dismissed the complaint filed by the applicant through the impugned order.

3. During pendency of the instant criminal miscellaneous application, the applicant expired and an application was filed on behalf of the legal heirs of the applicant/complainant with a prayer that they may be allowed to proceed with the instant criminal miscellaneous application. The said application was strongly opposed by the learned counsel for the respondents/accused and it is proposed that not only the said application but the entire criminal miscellaneous application be heard and decided simultaneously, and the learned counsel for the legal representatives of applicant be allowed to address in support of their application as well as merit of the case. The counsel for the respondents/accused and learned APG concede to this proposal.

4. While pressing the instant matter in the present scenario, the learned counsel for the applicant's legal representatives submits that late applicant Muhib Shah entered into an agreement of sale with the respondents/accused and the possession of the disputed piece of land was handed over to the late applicant. He submits that the proceedings under Illegal Dispossession Act is a semi criminal and semi civil proceeding and since valuable rights of the applicant are involved; therefore, they may be allowed to proceed in 'the instant case by filing an amended title. He submits that the trial Court has dismissed the criminal complaint at the very initial stage i.e. without taking cognizance, as such there will be no harm to alter or change the applicant/ complainant due to the death of the original applicant/complainant. In this respect, he takes the reliance from AIR 1967 Supreme Court

983. He submits that the Illegal Dispossession Act is a special law; therefore, it has an overriding effect. He submits that in criminal complaint under Illegal Dispossession Act, rights survive to the legal heirs of the deceased. According to him, there is a report of SDPO, according to which the respondents (proposed-accused) have taken part in illegal dispossession of the late applicant/complainant. He submits that as per report of SDPO, the occurrence of the offence is very much clear but the trial Court did not consider the report of SDPO without assigning any reason. He submits that it is not necessary that the owner of the property should initiate a proceeding under Section 3 of the Illegal Dispossession Act and even an occupier can file such proceedings. He draws attention towards the agreement executed between the late applicant and respondents (proposed-accused) and submits that the respondents have sold out their land, hence it is clear from the agreement that the possession of the land was handed over to the late applicant. According to him, the learned trial Court has dismissed the complaint on technical grounds as such the case is required to be remanded back. He also takes reliance from 2016 SCMR 1931, PLD 2016 Supreme Court 769, PLD 2012 Balochistan 189, 2017 YLR 1456, PLD 2010 Supreme Court 725, PLD 2007 Karachi 99, PLD 2012 Sindh 399, PLD 2007 Quetta 72, 2011 YLR 979 and 2009 PCr.LJ 127.

5. In contrast to above, the learned counsel for the respondents/proposed-accused submits that applicant was the owner of Masha Allah State Agency and the agreement to sell between applicant and respondents (proposed accused) was executed to enable applicant to bring the customers for sale of plots situated within the piece of land owned by the respondents (proposed accused). According to him, the agreement is an admitted document but the same was not executed to transfer the property to the applicant (now expired). He submits that the contention of respondents (proposed accused) is fortified with the fact that the sale deed was executed in favour of customers by one of the proposed accused. No doubt, the customers were brought by the applicant but it would not create a right in favour of the applicant regarding the property of respondents (proposed accused). He submits that a huge amount of Rs. 2,00,00,000/-was payable by the deceased applicant and he had issued cheque which was bounced. He submits that his clients have produced a copy of FIR with their objection to establish that the deceased applicant was a defaulter. He points out that till issuance of cheque, half of the property was sold out by the applicant without paying the consideration received from the buyers to the respondents (proposed accused). He submits that now the third-party interest has been created as the remaining property has been sold out to another party. According to him, the applicant was a land grabber and after defrauding different people, he himself escaped from the scene and concealed himself somewhere; therefore, the respondents (proposed accused) lodged FIR against him and subsequently they sold out the remaining property to another party. He draws attention towards the report of SHO, which indicates that there was a dispute on monetary issue. The applicant was not satisfied with the report of SHO; therefore, he sought another investigation and when similar report was received, he again requested for another investigation, as such third investigation was carried out. According to him, the third investigation was done behind the back of respondents (proposal accused) and the same based on the solitary statements of a close relative of the applicant namely Mazhar Hussein. According to him, the said Mazhar Hussein is the brother-in-law of deceased applicant. Regarding the merits of the case, his contention is that since the deceased applicant is required to pay a huge amount to the respondents (proposed accused); therefore, he filed the private complaint under Illegal Dispossession Act and subsequently the instant application with intention to save himself from payment of the amount to the respondents. According to him, the applicant's legal heirs cannot continue the criminal miscellaneous application after the death of the applicant, as the same is to be dismissed. He further submits that the legal heirs are not ready to take liabilities of their father. In the end, he submits that the legal heirs cannot inherit a disputed title and for the same they have to file a suit for specific performance. In this respect, he relied upon PLD 2010 Supreme Court 612.

6. The learned APG while arguing for state submits that since the matter was ended before the trial court without taking cognizance; therefore, it would not be appropriate for the legal heirs of the deceased applicant to enter into the instant proceedings. He submits that after the death of the applicant, the instant criminal miscellaneous application may be disposed of by giving a venue to the legal heirs to approach the trial court with a new complaint. According to him, if the complaint was brought on regular file then the criminal miscellaneous application might survive in favour of legal heirs, even after the death of the applicant.

7. I have heard the arguments advanced and have gone through the relevant record. Although both the parties have touched the merits of the case but at this juncture I would avoid to discuss about the same and only the maintainability of the request of legal heirs will be considered. The father of the legal heirs has filed a complaint under Illegal Dispossession Act which was dismissed without taking cognizance. Meaning thereby that the stage of associating the respondents (proposed accused) in the proceeding has yet not arrived when the complaint was dismissed. The applicant filed the instant criminal miscellaneous application against respondents and during its pendency he expired. If the acquittal of the respondents (proposed accused) was done by the trial Court after bringing the same on record; then the right certainly survives in favour of the legal heirs of the deceased complainant, and they may be heard before deciding the miscellaneous application on merits. In this respect, I fortify my view from a case of this Court reported as Fazaullah Khan v. Begum Fatima Imtiaz and 3 others (PLD 2007 Karachi 99). However, another aspect of the case is important. The proposed accused persons were not associated in the criminal complaint when it was dismissed. I am of the view that filing of fresh criminal complaint is possible in the present case, which was earlier dismissed at the pretrial stage. In this respect, I would like to take reliance from the cases reported as Mst. Shamim. Akhtar v. Abdul Rauf Dogar (1999 PCr.LJ 1870). However, in the second or subsequent complaint fresh facts and circumstances are to be disclosed. Similar view is also taken by the august Apex Court in the case reported as Zahoor and others v. Said-ul-Ibrar (2003 SCMR 59), according to which if a decision has been rendered on a criminal complaint after full consideration of the matter, entertaining the second complaint, cannot be in the interest of justice.

8. In view of the above discussion, the instant criminal miscellaneous application is disposed of with observation that the legal heirs of the deceased may file a fresh complaint under Illegal Dispossession Act, 2005 if advised so. However, if they file the fresh complaint, it is necessary for them to disclose the entire facts including the fact of filing of previous complaint by their deceased father. With these observations, the instant criminal miscellaneous application is disposed of. SA/M-69/Sindh Order accordingly.