ORDER SHEET
Cr. Revision No.141 of 2007
__________________________________________________________________
Order with signature of Judge
__________________________________________________________________
1. For orders on M.A No.5403/2007.
2. For Katcha Peshi.
--------------
17.01.2007.
Mr. Safdar Hussain Shah Bukhari, Advocate for the Applicant.
Mr. Abdul Jabbar Lakho, AAG for the State.
-----------
DR. RANA MUHAMMAD SHAMIM-J. By this Cr. Revision Application, the Applicant assailed the order of learned IIIrd Additional District & Sessions Judge, Karachi East dated 11.10.2007 passed in Criminal Complaint No.Nil of 2007 whereby Applicant’s application under Section 3, 4, 5 & 8 of the Illegal Dispossession Act, 2005 was dismissed by observing that the Criminal Complaint under the Illegal Dispossession Act, 2005 is not maintainable, as it is purely a matter of civil nature and the remedy available for the parties to sue before the Court of Civil jurisdiction. Hence this Cr. Revision Application.
Brief facts of the case are that the Applicant was the tenant of Respondent No.1, who obtained Rs.3,00,000/- from the Applicant’s husband for construction, when the Applicant’s husband demanded his money back, the Respondent No.1 involved Applicant and her husband in a criminal case which was lodged at Police Station PIB Colony, Karachi whereafter the Respondents by taking the advantage of absence of Applicant, occupied the flat. The Applicant approached the concerned Police Station for registration of the case but they did not listen her complaint. Therefore, the Applicant filed a Criminal Complaint before IIIrd Addl. District & Sessions Judge, Karachi East, who after recording the statement of the Applicant sent it to the VIIIth Civil Judge/Judicial Magistrate, Karachi East for holding preliminary enquiry. After recording the statement and the holding an enquiry, the same has been returned back to the IIIrd Addl. District & Sessions Judge, Karachi East.
Learned counsel for the Applicant submits that the learned IIIrd Addl. District & Sessions Judge, Karachi East did not consider the facts on record and passed the impugned order, that the impugned order passed by the learned IIIrd Addl. District & Sessions Judge, Karachi East, is contrary to law and facts inspite of sufficient evidence available on record, and that the Applicant and her family was dispossessed from the flat in question without due process of law. Learned counsel for the Applicant further submits that the learned IIIrd Addl. District & Sessions Judge, Karachi East passed the impugned order unilaterally as no summon has even been issued to the Respondents in this regard. He further submits that she being a lawful occupant has been dispossessed by the Respondents and the learned IIIrd Addl. District & Sessions Judge, Karachi East has erred in law while deciding the matter as per preamble of the Act, protection is provided to the lawful owners and the occupiers of the immovable property from their illegal and forcible dispossession therefrom. According to learned counsel for the Applicant as per Section 2 (c) the occupier is defined as person, who is in lawful possession of the property and according to the Applicant as evident that the Applicant was in lawful possession and as such she was occupier and come within the purview of definition of occupiers in Section 2 (c). He further submits that the definition of occupier is given in Black Law Dictionary as well as held in PLD 1973 Lahore 827 ( Al-Hilal Cotton Traders Vs. the Province of West Pakistan). Learned counsel further submits that the case of the Applicant has been decided in haste manner without considering the Applicant as occupier.
Mr. Muhammad Tariq, Advocate files his Vakalatnama on behalf of Respondents No.2 & 3, which is taken on record.
Mr. Abdul Jabbar Lakho learned AAG appearing on behalf of the State submits that admittedly the Respondent No.1 is the lawful occupier of the flat in question. He further submits that enquiry be held afresh as per Section 202 Cr.P.C and suggests for the remand of case.
I have heard the learned counsel for the parties at length, perused the record and gone through the case law. In my humble view, every case is to be decided on its own merits and the occupier also comes within the definition of Section 2 (c) and he can seek remedy under the provisions of the Illegal Dispossession Act, 2005. I agree with the arguments of the learned counsel for the State, set aside the impugned order and remand the case to the District & Sessions Judge Karachi East for denovo considerations.
JUDGE