HIGH COURT OF SINDH AT KARACHI

Criminal Revision Application No.92 of 2014

 

         Present:

        Mr. Justice Naimatullah Phulpoto, J.

 

Applicant:                               Naveed Muhammad Khan through Mr. Muhammad Khalid Khan, Advocate

 

Respondents:                         Muhammad Ilyas Khan and Farida Ilyas through    Mr. Javed Haleem, advocate

 

                                                The State through Mr. Muhammad Iqbal Awan, Assistant Prosecutor General Sindh

 

Date of Hearing:                    17.09.2015

Date of Announcement:       17.09.2015

 

O R D E R

 

          Naimatullah Phulpoto, J.--- Through this Criminal Revision Application, applicant Naveed Muhammad Khan has called in question order dated 01.03.2014 passed by learned IV Additional Sessions Judge, Karachi East in Criminal Complaint No.11 of 2014, whereby complaint of applicant under sections 3, 4 and 5 of the Illegal Dispossession Act, 2005, was dismissed.

 

2.       Brief facts leading to the filing of the instant criminal revision application are that complainant entered into a tenancy agreement on 19.10.2010 and let out portion of Bungalow No.E-178, Block-2, PECHS, Karachi to the respondents Nos.1 and 2. Remaining portion of the bungalow remained in possession of applicant. Applicant received legal notice from advocate of respondents Nos.1 and 2, whereby he was informed that rent of premises in question is being deposed in M.R.C. No.19 of 2014 in the Court of learned Rent Controller concerned. On 18.02.2014, applicant visited the subject premises but he was not allowed to enter, the same was illegally and unauthorizedly occupied by the respondents Nos.1 and 2. Therefore, Criminal Complaint was filed before the Court of Sessions, Karachi East under sections 3, 4 and 5 of the Illegal Dispossession Act, 2005. Learned 1st Additional Sessions Judge Karachi West by order dated 01.03.2014 dismissed the same, mainly for the following reasons:

 

“Bare perusal of the memo of petition and the annexures thereto reveals that nowhere complainant has asserted the fact of ownership of the subject house. Upon specific query made in this respect was replied by the learned counsel that complainant derived his title under sale agreement. However, no such sale agreement or any proof thereto is provided. The copies of emails annexed with petition reveals that one Niaz Farooqui has claimed his ownership of the premises and denied to have given any authority to complainant to let out the property on rent. Such aspect has not been denied expressly in the petition. No proof of possession as to remaining house/premises is given by the complainant. In such circumstances of the case I am of the humble opinion that instant criminal complaint merits no consideration. Accordingly same is dismissed.”

 

3.       Mr. Muhammad Khalid Khan, learned advocate for the applicant       argued that respondents Nos.1 and 2 have failed to pay the monthly rent to the applicant, even they refused to allow the applicant to enter into his house. It is further argued that respondents Nos.1 and 2 have illegally occupied the remaining portion of the house and have refused to vacate the same. Lastly, it is argued that impugned order is illegal.

 

4.       Mr. Javed Haleem, learned advocate appearing on behalf of the respondents Nos.1 and 2 argued that applicant has no title documents of the bungalow. In fact one Niaz Hussain Farooqui is the real owner of the premises. It is argued that provisions of the Illegal Dispossession Act 2005 are not attracted in this case as respondents Nos.1 and 2 had lawfully occupied the premises.

 

5.       Mr. Muhammad Iqbal Awan, learned Assistant Prosecutor General Sindh, argued that there was rent agreement between the applicant and respondents Nos.1 and 2 and learned Additional Sessions Judge without calling the report from the S.H.O. concerned, has passed the impugned order and submitted that matter may be remanded back for deciding the complaint afresh.

 

6.       After hearing the learned counsel for the parties I have gone through the documents appended with the case. Applicant has filed rent agreement between Mst. Zeba daughter of Muhammad Iqbal Qadir and Muhammad Ilyas Khan, which reflects that there was rent agreement between the parties and occupation of premises was lawful. Regarding title documents learned advocate for applicant replied that applicant has purchased bungalow, such sale agreement has been executed. Full Bench of the Lahore High Court Lahore in the case of Zahoor Ahmed and 5 others versus THE STATE and 3 others (PLD 2007 Lahore 231) has held that the Illegal Dispossession Act has no application to cases of dispossession between co-owners and co-sharers and also that the said Act is not relevant to bona fide civil disputes which are already subjudice before civil or revenue Courts. It had also been declared by the Lahore High Court, Lahore in that case that the Illegal Dispossession Act, 2005, was introduced in order to curb the activities of Qabza groups/property grabbers and land mafia. Honourable Supreme Court has approved the above mentioned case of ZAHOOR AHMED and 5 others versus THE STATE and 3 others (PLD 2007 Lahore 231) in the case of BASHIR AHMED versus ADDITIONAL SESSIONS JUDGE, FAISALABAD and 4 others (PLD 2010 SC 661) and observed as under:-

 

“It has been conceded before us by the learned counsel for the petitioner that no material is available with the petitioner to establish that respondents Nos. 2 to 4 belonged to any Qabza group or land mafia or that they had the credentials or antecedents of being property grabbers. In view of the discussion made above the impugned acquittal or respondents Nos. 2 to 4 recorded by the learned Additional Sessions Judge, Faisalabad upon acceptance of their application submitted under section 265-K, Cr. P. C. has been found by us to be entirely justified and dismissal of the petitioner's writ petition by the learned Judge of the Lahore high Court, Lahore has also been found by us to be unexceptionable. In the circumstances of this case mentioned above we have entertained an irresistible impression that through filing of his complaint under the Illegal Dispossession Act, 2005 the petitioner had tried to transform a bona fide civil dispute between the parties into a criminal case so as to bring the weight of criminal law and process to bear upon respondents Nos. 2 to 4 in order to extract concessions from them. Such utilization of the criminal law and process by the petitioner has been found by us to be an abuse of the process of law which cannot be allowed to be perpetuated.”

 

7.       There is no material with applicant Naved Muhammad Khan to establish that respondents belong to any Qabza group or land mafia or that they had the credentials or antecedents of being property grabbers.

 

8.       In the above stated circumstances, I have no hesitation to hold that by filing of complaint under the Illegal Dispossession Act, 2005 applicant Naveed Muhammad Khan has tried to transform a bona fide civil dispute between the parties into a criminal case so as to bring the weight of criminal law and process to bear upon respondents in order to extract concessions from them. Such utilization of the criminal law and process by applicant Naveed Muhammad Khan is found to be an abuse of the process of law which cannot be allowed to be perpetuated.

 

9.       In my view learned Additional Sessions Judge has rightly dismissed complaint filed under the provisions of the Illegal Dispossession Act, 2005.

 

10.     For what has been discussed above, instant criminal revision application is dismissed.

 

                                                                                      J U D G E

Gulsher/PA