IN THE HIGH
COURT OF SINDH BENCH AT SUKKUR
Criminal Revision Appl. No.
S-17 of 2022
|
DATE
OF HEARING |
ORDER WITH
SIGNATURE OF JUDGE. |
1.
For orders on office objection at flag ‘A’
2. For
hearing of main case
08.12.2023
Mr. Achar Khan
Gabol, advocate for applicant
Syed Sardar
Ali Shah, Addl. P.G.
***************
Repeatedly notices were issued to the Respondents and
subsequent thereto BWs were issued. On 24.11.2023, the Respondents No. 1,2 and
8, were in attendance and submits that they have engaged their counsel Mr.
Muhammad Hassan Baladi, Advocate and seeks time and the matter was adjourned for
07.12.2023, on the same date they and their counsel were called absent and
again matter was adjourned for today. Learned counsel submits that trial Court
has not considered reports of the Mukhtiarkar and SHO of PS Padidan. The report
of the Mukhtiarkar is available at page No.39, which is reproduced here as
under:-
“I have the honour to submit
that enquiry conducted through Tapedar deh Bhanbhri Tapa Khariro, who reported
that as per entry No. 310, dated 09.10.2008, of VF-VII-B of deh Bhanbhri an
area 01-06 ¼ acres out of S. No. 542/3 entered in the name of complainant
Akhtar Hussain same purchased by him from Muhammad Ilyas and others through
registered sale deed (copy appended annexure-A) and same area is under the
possession of opponents Amanullah and his brothers who given katcha Lohro and constructed
one Pakka room in the area of complainant since about 02 years (copy of report of
Tapedar attached for kind perusal).
The learned Additional Prosecutor General has relied upon
the above report of Mukhtiarkar and submits that same has not been considered
properly by the trial court and he accorded his no objection for allowing of
instant Crl. Revision Application.
It is observed that the trial court in
its impugned order relied on the civil cases either decided or pending in
between the parties and by holding that the dispute in between the parties if
civil nature and dismissed the competent. The said approach of the trial Court
is totally against the principle of settled by the Supreme Court in the case of
Shaikh Muhammad Naseem vs. Shaikh Farida
Gul (2016 SCMR 1931), wherein it was held by the Supreme Court that any act
which entails civil liability under civil – as well as criminal penalty under
criminal law, such as the Illegal Dispossession Act, 2005 then a person can be
tried under both kinds of proceedings, which are independent to each other.
Once the offence reported in the complaint stands proved against the accused
within the confines of the provisions of the Illegal Dispossession Act, 2005 then
he cannot escape punishment on the ground that some civil litigation on the
same issues is pending adjudication between the parties. No one can be allowed
to take law in his own hands and unlawfully dispossesses on owners or lawful
occupier of an immovable property and then seeks to thwart the criminal
proceeding initiated against him under the Illegal Dispossession Act, 2005 on
the pretext the civil litigation on the issue is pending adjudication between
the parties in a Court of law. Therefore, irrespective of any civil litigation that
may be pending in the Court, where an offence, as described in the Illegal
Dispossession Act, 2005 has been committed, the proceedings under the said Act
can be initiated as the same would be maintainable.
Keeping in view the above position and
taking guideline from case law cited (supra), the instant Crl. Revision
Application stands allowed, the matter in hand is remanded back to the trial
Court for passing afresh order, after hearing the parties and considering the report
of Mukhtiarkar.
J U D G E
M.Ali/steno