IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA
Cr. Misc. Application No. 164 of 2023
Gul Zaman : through Mr. Rafique Ahmed
(Applicant) K. Abro Advocate.
State : through Mr. Ali Anwar
Kandhro, Addl. P.G. Sindh.
Arif Shaikh and Naeem Shah : through Mr. Abdul Qadir Abro
(Proposed Accused No.1 & 2) Advocate.
Dates of hearing : 17.11.2023
Date of Judgment : 30.11.2023
J U D G M E N T
MUHAMMAD SALEEM JESSAR, J.- By means of instant Criminal Misc. Application under Section 561-A Cr.P.C. applicant Gul Zaman Kakar has assailed the order dated 16.5.2023 passed by III-Additional Sessions Judge / Ex-officio Justice of Peace, Shikarpur in Cr. Misc. Application No 513/2023 re-Gul Zaman v. SSP. Shikarpur & others, whereby Application under Section 22-A(6)(i), Cr.P.C. moved by applicant was dismissed.
2. Brief facts giving rise to filing of instant Cr. Misc. Application, as disclosed in the application filed by present applicant under Section 22-A(6)(i), Cr.P.C., are that he was running a Hotel in the name of “Paras Gul Zaman Hotel” which was allotted to him by the Municipal Committee Shikarpur and he used to pay monthly installments/rent towards the same. He further asserted that for the last sometime Municipal Committee Shikarpur has been sending notices for enhancing the rent of the hotel and in this regard the applicant as well as 05/06 other shopkeepers, who were also tenants of Municipal Committee, had filed F.C Suit before the Court of learned 2ndSenior Civil Judge, Shikarpur against the Municipal Committee Shikarpur. However, during pendency of said suit, proposed accused Arif Shaikh, Administrator of Municipal Committee and one Naeem Shaikh got sealed the hotel of applicant, whereupon he filed appeal which was transferred to the Court of learned 3rd Additional District Judge, Shikarpur, and main case No.283/2022 is pending. The grievance of the applicant is that on 05.5.2023 at 03.30 p.m. he along with his sons namely: Habib Rehman and Saeed Khan was present near his hotel when they found that four tractors reached there on which 12 persons were boarded who alighted from tractors. The applicant identified them to be Mohammad Arif Shaikh, Naeem Shaikh and ten unknown persons who robbed articles from the hotel and loaded the same in the tractors. It was further stated that applicant party requested them not to do so as civil case is pending for adjudication but proposed accused extended threats of dire consequences to them, abused and caused kicks and fists blows to them and went away. In this regard the applicant approached concerned SHO for lodging FIR but the same was not registered by the police; hence he filed application under section 22-A(6) and 22-B Cr.P.C. before Ex-Officio Justice of Peace for issuance of direction to SHO PS Lakhi Gate, to register FIR against the proposed accused. However, vide impugned order said application was dismissed. Hence, this Cr. Misc. Application.
3. I have heard the arguments advanced by learned counsel for the parties and have perused the material available on the record.
4. Mr. Rafique Ahmed K. Abro, learned counsel for the applicant, submitted that the applicant was allotted property in dispute/shop by the proposed accused on rental basis on 11.12.2017; however, suddenly the proposed accused had enhanced the rent amount at the rate of 150% therefore, applicant filed Rent Case No.19/2022 before 1stSenior Civil Judge/Rent Controller, Shikarpur, which was dismissed as withdrawn on 16.1.2023 with permission to the applicant to continue depositing rent with the Nazir of the Court. He further submitted that the applicant subsequently filed Rent Application No.05/2023 and he has been depositing the rent amount with the Nazir and did not make any default in the payment of rent. He next submitted that the proposed accused had threatened the applicant to get vacated the rented premises, therefore, he feeling apprehension filed FC Suit No. 283/2022 before the Court of 2nd Senior Civil Judge, Shikarpur. The respondents/ proposed accused submitted an application under Order VII, Rule 11 CPC, which was allowed vide order dated 17.3.2023 and the plaint filed by the applicant was rejected. The applicant filed Civil Appeal No.08/2023 before the District Judge, Shikarpur which was assigned to III-Additional District Judge/ MCAC, Shikarpur (Appellate Court). The appellate Court after hearing the parties allowed the appeal filed by the applicant vide judgment dated 08.5.2023 and case was remanded to the trial Court with direction to decide the fate of suit after recording evidence of the parties. According to learned counsel, during pendency of civil appeal the proposed accused/landlords had got evicted/dispossessed the applicant from the rented shop on 05.5.2023 and thereafter demolished the same, besides taking away the belongings of the applicant, which, according to him, constitutes a criminal offence, therefore, he filed miscellaneous application before the Ex-officio Justice of Peace who did not consider the averments and dismissed his application vide impugned order. Mr. Abro submitted that such act on the part of proposed accused was unjustified and since they have committed the offence, therefore, they are liable to be prosecuted; hence, dismissal of application under Section 22-A(6)(i) Cr.P.C. by Ex-officio Justice of Peace is unwarranted by law. Mr. Abro pointed out that rent being deposited by the applicant is being withdrawn by the proposed accused / landlords. He lastly prayed that impugned order may be set aside and directions may be issued to the SHO concerned to record statement of the applicant in terms of Section 154, Cr. P.C.
5. Learned Addl. P.G., appearing for the State, opposed the application and submitted that the applicant was tenant and since the applicant had himself filed two rent applications, which he withdrew but could not fulfill the requirements of rent laws; hence was rightly evicted by the proposed accused. As far as alleged damage of articles lying in the hotel / shop, as claimed by the applicant, is concerned, learned Addl. P.G submitted that the best course for the applicant is to exhaust the remedy under Section 9 of the Specific Relief Act, 1908 instead of maintaining this application; hence, instant application merits no consideration and is liable to be dismissed.
6. Mr. Abdul Qadir Abro, learned Counsel appearing on behalf of proposed accused, submitted that basically the applicant was tenant and by virtue of Rubkari dated 11.12.2017 specific conditions are mentioned, which reveals that in case of enhancement of rent the tenant / applicant would be responsible to pay the enhanced rent and the proposed accused/ landlords reserve right to vacate the shop in question at any time as and when needed for their personal bonafide need with advance notice of 30 days and in case of subsequent eviction the tenant / applicant has no legal right to sue against them. He referred to Rent Applications No. 05/2022 and 19/2023 at pages 67 and 103 of the Court file, which were subsequently withdrawn by the applicant. According to him, neither proposed accused have committed any offence nor are liable to be prosecuted, as they being landlords had legal right to evict the applicant from the premises, more particularly when the applicant had failed to pay the enhanced rent which was demanded due to escalation of Pak Rupee. He lastly submitted that the best course for the applicant was to maintain rent application before the Rent Controller and as far alleged damages are concerned, he had a remedy under Section 9 of the Specific Relief Act, 1908, therefore, application in hand merits no consideration. As far as his civil suit as well as pendency of civil appeal is concerned, the plaint of the suit filed by the applicant was rejected. However, the appeal filed by the applicant was allowed on 08.5.2023, but in said appeal no restraining order was passed against them which may warrant prohibition against the proposed accused to vacate the shop in question being it's custodian/ landlords, therefore, the plea taken by the applicant carries no weight. He, therefore, prayed for dismissal of instant Cr. Misc. Application.
7. From perusal of the record it appears that the applicant / complainant was a tenant of Municipal Committee Shikarpur in respect of property in question where he was running a hotel in the name of “Paras Gul Zaman Hotel”. According to applicant, Municipal Committee Shikarpur had demanded enhanced rent from the applicant. However, the applicant and some other shopkeepers of the Municipal Committee being aggrieved with such enhancement, had filed civil suit but during pendency of said suit, proposed accused got sealed hotel of the applicant and thereafter the same was demolished and the proposed accused with the connivance of ten other persons got removed belongings / articles of the applicant lying in the hotel and loaded the same in the tractors. The applicant having failed to get registered FIR at concerned police station, filed an application under section 22-A(6) and 22-B Cr.P.C. before Ex-Officio Justice of Peace.
8. Perusal of record further reveals that the articles lying in the hotel were removed under a mashirnama and same were kept in safe custody of the Municipal Committee Shikarpur. Record further reveals that the plaint in F.C. Suit No.283/2022 which was filed by the applicant/complainant before 2ndSenior Civil Judge, Shikarpur was rejected under Order VII Rule 11 CPC; however, in Civil Appeal No.8/2023, preferred by the applicant, case was remanded to the trial court for fresh decision which is still pending. The record further reveals that report was called from SHO PS Lakhi Gate and I/C Complaint Cell, Shikarpur. In the report submitted before learned Ex Officio Justice of Peace, it was specifically mentioned that the applicant had made false and fabricated application against the municipal committee. It is also an admitted position that the applicant / complainant had filed Rent Application No.05/2023copy whereof is available at page 67 of the Court file, which was subsequently withdrawn by him. In said rent application, the applicant/complainant had prayed for de-sealing the property/hotel in question. Besides, the applicant had also filed another rent applicant No.19/2022 which was also withdrawn by him with permission to continue paying monthly rent in the Court.
9. Perusal of the record also shows that vide clauses/terms No.4 and 5 of the Rubkari dated 11.12.2017, copy whereof has been placed on record by the applicant’s counsel, whereby the Municipal Committee has rented out the premises in question to the applicant/complainant, whenever a general enhancement is made in respect of the tenements rented out by the Municipal Committee, the applicant/complainant would be bound to pay the rent according to such enhancement and that as and when the premises rented out to the applicant is required by the Municipal committee, then upon service of 30 days’ notice by the Municipal committee, the applicant would be bound to vacate the demised premises in his occupation.
10. From aforesaid facts, it is crystal clear that the actual dispute between the parties is of civil nature and even at present civil suit bearing No. 283/2022 filed by the applicant is pending adjudication.
11. There is no cavil to the legal proposition that there is no bar in proceeding civil and criminal cases side by side, however at the same time the courts are under bounden duty to see as to whether the complainant resorting to criminal remedy has approached the court/ Ex Officio Justice of Peace, with clean hands or the same is tainted with malice.
12. Before proceeding further in order to decide as to whether the Ex Officio Justice of Peace, while rejecting the application moved by the applicant under Section 22-A(6)(i) Cr.PC, has acted in accordance with the law or not, it would be appropriate to reproduce hereunder the relevant provision of law i.e. subsection (6) of section 22-A sub-clause(i) Cr.P.C:
"22-A (6), Cr.P.C. An ex-officio Justice of the Peace may issue appropriate directions to the police authorities concerned on a complaint regarding--
(i) non-registration of a criminal case;
(ii) transfer of investigation from one police officer to another;
(iii) neglect, failure or excess committed by a police authority in relation to its functions and duties."
13. From bare perusal of above-said provision of law, it appears that the Ex-Officio Justice of Peace has been bestowed the powers by the legislature to pass order where the police authorities fail to register a case, in respect of transfer of investigation from one officer to another or where he finds that the police authorities have failed to perform their function and duties in accordance with law. Needless to emphasize that wherever any authority has been entrusted with certain discretion and/or powers by the legislature, such discretion and powers are to be exercised in a just manner strictly in accordance with law after considering all the material placed before it and after taking into consideration all relevant circumstances.
14. Similarly, the Ex-Officio Justice of Peace while dealing with the application under Section 22-A Cr. P.C. has to apply prudent mind for ascertaining as to whether the facts disclosed by the applicant / complainant constitute a cognizable offence or not and as to whether the applicant has invoked the jurisdiction of Ex-Officio Justice of Peace with clean hands or it is tainted with malice.Such orders are not to be passed in a mechanical fashion. It may be observed with great concern that now a days the provisions of section 22-A(6)(i), Cr.P.C. are being misused very frequently. In certain cases said provision of law is utilized in order to prevent public functionaries and government authorities / officials from performing their functions / duties in accordance with the mandate of law, whereas in certain cases it is used as a weapon / instrument to pressurize certain person(s) to bow down before their illegal demand. The courts cannot close their eyes from the reality that once a person is booked for any offence, then not only he himself but his entire family has to undergo painful agonies and miseries, mentally, physically as well as financially.
15. In the case of IMTIAZ AHMED CHEEMA Vs. S.H.O., POLICE STATION DAHARKI, GHOTKI and 2 others, reported in 2010 Y L R 189 [Karachi], this Court while dealing with the point under discussion, held as under:
“The provisions of section 22-A, Cr.P.C. have been misused in a number of cases. The wisdom of legislature was not that any person who in discharging of duties takes an action against the accused would be subjected to harassment by invoking provision of section 22-A, Cr.P.C. The Courts in mechanical manner should not allow application under sections 22-A & B and should apply its mind as to whether the applicant has approached the Court with clean hands or it is tainted with malice. Unless such practice is discharged, it would have far reaching effect on the police officials who in discharge of duties take actions against them. The law has to be interpreted in a manner that its protection extends to everyone. I am therefore, of the opinion that order of the Sessions Judge was passed in mechanical manner and the applicant approaching the Sessions Judge.
16. In this connection, reference may also be made to a decision of Honourable Supreme Court given in the case of RAI ASHRAF and others Versus MUHAMMAD SALEEM BHATTI and others, reported in P L D 2010 Supreme Court 691. The facts in said reported case were almost similar to the facts of the instant case. In fact, respondent No.1 in said case had filed an application under Sections 22-A and 22-B, Cr.P.C. before the Sessions Judge/Ex-Officio Justice of Peace, Lahore who entrusted the same to the Additional Sessions Judge/Ex-Officio Justice of the Peace, Lahore, on the allegation that petitioners, who were public functionaries, in said case had demolished the outer wall and gate of respondent No.1 with police aid and had taken house-hold articles, gold ornaments and cash amount which was lying in the boxes and almirahs. Learned Additional Sessions Judge/Ex-Officio Justice of the Peace, Lahore after securing report from the concerned S.H.O. and after providing opportunity of hearing to the concerned, dismissed application of respondent No.1 / complainant vide order dated 24-11-2007. Respondent No.1 being aggrieved filed a constitutional petition before learned Bench of Lahore High Court which was disposed of with the observation that the copy of the writ petition be sent to the concerned S.H.O. who was directed to look into the matter and pass appropriate orders strictly in accordance with law. The proposed accused challenged the said order before Honourable Supreme Court. Honourable Supreme Court set aside the order passed by Lahore High Court. In said judgment Apex Court, inter alia, held as under:
“In the case in hand, respondent No.1 has more than one alternate remedies as alleged by him in the application that he had secured restraining order against the petitioners from the civil Court, therefore, Additional Sessions Judge/Ex-Official Justice of the Peace observed that respondent No.1 had to avail appropriate remedy for violation of status quo before the civil Court under the provisions of C.P.C. vide Order XXXIX, Rules 3 and 4, C.P.C. It is also admitted fact that there is a dispute qua the property in question between the parties as alleged by the petitioners and observed by the Courts below.”…….
“The learned High Court had erred in law to exercise discretion in favour of the respondent No.1 without realizing that the respondent No.1 had filed application before the Additional Sessions Judge/Ex-Officio Justice of the Peace to restrain the public functionaries not to take action against him in accordance with the LDA Act 1975, Rules and Regulations framed thereunder, therefore, respondent No.1 had filed petition with mala fide intention and this aspect was not considered by the learned High Court in its true perspective.”
17. In another case of ABDUL SATTAR Vs. STATION HOUSE OFFICER and another, reported in PLD 2010 Lahore 419, learned Bench of Lahore High Court dismissed the petition whereby the order passed by Ex-Officio Justice of Peace declining to issue direction to concerned police for registration of FIR, was challenged. It was held in the said case as under:
“The petitioner has a remedy by way of filing of a private complaint in respect of his allegations. The petitioner may avail of the alternative remedy provided to him under the statutory law, which is adequate in nature, if so advised.”
18. In instant case too, alternate remedies, civil as well as criminal, are available to the applicant / complainant which can be resorted to by him. Section 9 of the Specific Relief Act provides such remedy by initiating civil proceeding against any person who has dispossessed the occupant from the immoveable property without his consent. For the sake of convenience, said provision of law is reproduced hereunder:
“(9)– Suit by persons dispossessed of immovable property. If any person is dispossessed without his consent of immoveable property otherwise than in due course of law, he or any person claiming through him may, by suit recover possession thereof, notwithstanding any other title that may be set up in such suit.”
19. Besides, the applicant has got remedy of filing private complaint u/s 200, Cr.P.C. As far as contention of learned Counsel that the applicant was illegally dispossessed by the proposed accused is concerned, carries no weight. Since, the applicant was tenant, therefore, was under obligation to follow and abide the conditions prescribed under tenancy agreement as well as its Rubkari, which he could not fulfill nor followed the mandatory provisions of Sindh Rented Premises Ordinance, 1979 (SRPO); hence, being tenant he cannot claim his dispossession at the hands of landlord. The proposed accused/landlords have evicted the applicant when he failed to enhance the rent as per Rubkari, therefore, by following the condition prescribed under the Rubkari he has been
evicted. Thus, eviction of the tenant from demised premises is no offence, which may warrant application of Section 3 & 4 of Illegal Dispossession Act, 2005, as eviction of a tenant may not be presumed to be an offence/illegal dispossession within the meaning of Illegal Dispossession Act, 2005 (The Act, 2005), at the most it can be said to be a civil wrong and not the criminal wrong.
20. Since rights of tenant(s) as well as landlord(s) are enshrined under the Sindh Rented Premises Ordinance, 1979 (SRPO), therefore, remedy for both of them is available under SRPO, hence no criminal offence, as alleged, has been made out. It is settled law that owner/landlord is always landlord, therefore, he may not be prosecuted if he has acted within compass of the SRPO as well as tenancy agreement duly signed by the tenant (the applicant). Thus, no case for interference is made out, which may warrant interference by this Court.
21. In this view of the matter, the best course for the applicant / complainant, as rightly opined by the counsel for the proposed accused as well as learned A.P.G. appearing for the State, was to avail remedy as provided under Section 9 of the Specific Relief Act.
22. It may also be observed at this juncture that, as stated above, as per clause/term No.4 of the Rubkari dated 11.12.2017 whereby the Municipal Committee has rented out the premises in question to the applicant/complainant, whenever a general enhancement is made in respect of the tenements rented out by the Municipal Committee, the applicant/compliant would be bound to pay the rent according to such enhancement, whereas clause 5 provides that as and when the premises rented out to the applicant is required by the Municipal committee, then upon service of 30 days’ notice by the Municipal Committee, the applicant would be bound to vacate the premises in his occupation. In this view of the matter, the applicant was bound to abide by the terms of the tenancy, thus his action of initiating criminal proceedings against officials of the Municipal Committee would amount to harassing and pressurizing them not to perform their official/legal function which they were bound to do.
23. The upshot of above discussion is that instant Criminal Misc. Application having no merits, is hereby dismissed. Consequently the impugned order dated 16.5.2023 passed by III-Additional Sessions Judge / Ex-officio Justice of Peace, Shikarpur in Cr. Misc. Application No 513/2023 re-Gul Zaman v. SSP. Shikarpur & others filed by present applicant, is hereby maintained.
Dated _: 30th November, 2023. JUDGE