IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Revision Appln.No.S- 80 of 2015

Applicant/complainant: Illahi Bux Mangrio, through Mr. Abdul Mujeeb Shaikh, Advocate

Respondents : Shahzad Khan, Mumtaz, Ghulam

Rasool, Habibullah, Bagh, Manthar Ali, Saait Ali, Mukhtiar Ahmed, Imran Ali and Muharam through M/s Shabbir Ali Bozdar, Illahi Bux Jamali and Muhammad Azam Abro, Advocates for private respondents

The State through Syed Sardar Ali Shah, DPG

Date of hearing : 25.01.2019

Date of decision : 01.02.2019

O R D E R

IRSHAD ALI SHAH, J.- The applicant by way of instant criminal revision application has impugned order dated 22.08.2015 passed by learned Additional Sessions Judge Kandiaro, whereby his direct complaint for prosecution of the private respondents under section 3/4 of the Illegal Dispossession Act, 2005, was dismissed, with the following observation;

“Criminal complaint called. Heard learned counsel for the complainant, respondents No.37 & 40 and perused the record. It is argued by the counsel for the respondents that complainant himself has filed civil suit for Declaration, Cancellation of documents (entries of record rights made in favour of respondents), Possession and Permanent Injunction which is pending in the court of learned Senior Civil Judge, Kandiaro which fact is not disputed by the complainant’s counsel. Moreover, neither the Mukhtiar nor police has reported the respondents to be either land grabbers or belonging to the gabza group nor they are reported to have forcibly occupied the land of complainant. In these circumstances, I am of the view that complainant’s case does not come within the ambit of Illegal Dispossession Act, 2005. Hence, I am not inclined to bring this complaint on record. Accordingly I dismiss this complaint.”

2. As per the applicant, he owns (4-00) acres of land in Deh Kandiaro is occupied illegally by the private respondents by force whereupon they have established their katcha and pacca houses. In these circumstances, he maintained a direct complaint for prosecution of the private respondents under section 3/4 of Illegal Dispossession Act, 2005. It was dismissed by the learned Additional Sessions Judge, Kandiaro, such dismissal of his complaint, the applicant has impugned before this Court by way of instant criminal revision application.

3. It is contended by the learned counsel for the applicant that learned trial Court has dismissed the direct complaint of the applicant without lawful justification, on the basis of irrelevant observation. By contending so, he sought for remand of the matter to learned trial Court for its trial in accordance with law.

4. It is contended by learned counsel for the private respondents that the private respondents are in possession of the disputed land in their own cause, the civil suit filed by the applicant was withdrawn by him and no issue of illegal dispossession of the applicant is involved, which may justify prosecution of the private respondents under section 3/4 of the Illegal Dispossession Act, 2005. By contending so, they sought for dismissal of the instant criminal revision application. In support of their contention, they relied upon case of Dr. Muhammad Safdar v. Edward Henry Louis (PLD 2009 Supreme Court 404).

5. Learned D.P.G for the State sought for remand of the matter to learned trial Court for passing a fresh order after providing chance of hearing to all concerned. In support of his contention, he relied upon case of Sarfraz Ahmed v. Mst. Naheed (2014 P. Cr. L J 1659).

6. I have considered the above arguments and perused the record.

7. There is no denial to the fact that the applicant as per revenue record which he produced together with his direct complaint is owner of the land under dispute, which according to the private respondents is in their possession in their own cause, some of them have also put a claim that they have purchased the land in their possession under registered sale deed. Strange enough they have not sought for declaration of their title by filing any suit before the Court having jurisdiction. In that situation, they could not be permitted to deny the title of the applicant over the land under their dispute on vague pretext, such act on their part makes their status over the land under dispute tentatively to be of encroacher, the encroachment if is found to be true then it would amounts to dispossession of the applicant from his landed property being its lawful owner.

8. In case of Shaikh Muhammad Naseem vs. Mst.Farida Gul (2016 SCMR-1931), the Hon’ble Apex Court has held that;

“Any act which entails civil liability under civil law 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 of each other”.

9. No harm apparently would be caused to the private respondents, if the applicant is permitted to exhaust the criminal remedy against them under the provision of Section 3 of Illegal Dispossession Act, 2005, such remedy if is exhausted apparently would be open to rebuttal by the private respondents, on legal as well as factual grounds.

10. The case law relied upon by learned counsel for the private respondent is on distinguishable facts and circumstances. In case of Dr. Muhammad Safdar (supra) the parties were found to be disputed on same property before civil Courts, much before promulgamation of Illegal Dispossession Act, 2005. In that context, it was held that the provision of Illegal Dispossession Act, 2005 could not be invoked ex post facto. In the instant matter, parties are now not found to be contesting each other on civil side before promulgamation of Illegal Dispossession Act, 2005.

11. In view of the facts and reasons discussed above, the impugned order of learned trial Court dismissing the complaint of the applicant could not be sustained, it is set aside, consequently, the case is remanded to learned trial Court with direction to pass fresh and appropriate order in accordance with law, after providing chance of hearing to all the concerned.

12. The instant criminal revision application is disposed of in above terms.

Judge

ARBROHI