HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No.202 of 2019

Appellant              :         Laeequddin  Qadri son of Muhammad Tahir,

through Mr. Muhammad Ghalib, Advocate.

Respondent No.1  :         The State.

Respondent No.2  :         Learned IInd Additional District & Sessions

Judge, Karachi (East).

Respondent No.3 :         Station House Officer, P.S. Landhi, Karachi.

Respondent No.4 :         Muhammad Naseeruddin son of Muhammad

Tahir.

Date of hearing     :        22.04.2019

Date of Decision   :        22.04.2019

ORDER

Abdul Maalik Gaddi, J.– Through this appeal, the appellant has assailed the legality and propriety of the order dated 20.02.2019 passed by the learned IInd Additional District and Sessions Judge, Karachi (East) in Criminal Complaint No.145 of 2018 (re: Laeequddin Qadri v. Muhammad Naseeruddin), emanating from application under Section 3, 4 and 9 of Illegal Dispossession Act, 2005, filed by the appellant against the respondent No.4, whereby the learned         trial Court after hearing the learned Counsel for the appellant/complainant, dismissed the said application.

2.       The brief facts of the appellant’s case are that he is the owner of House No.753, Sector 37-D, Landhi No.1, near Muhammadi Sonehri Masjid, Landhi No.1, Karachi and his mother namely Mehboob Bi wife of Muhammad Tahir gifted the above said house in his favour on 09.06.2003; thereafter, he obtained physical possession of the said house. It is also the case of complainant that he rented out the said house to tenant Zain and other different tenants in different times as according to him, his mother Mehboob Bi had already given the share to all other legal heirs while the said house given to him as his share, but all the other legal heirs i.e. brothers and sisters illegally occupied the said house and they filed civil suit bearing No.1240 of 2013 for cancellation of documents, declaration, possession, partition and permanent injunction in the name of their mother Mst. Mehboob Bi through her attorney before XIth Senior Civil Judge Karachi (East) against the complainant, which was dismissed. It was further alleged that accused with malafide intention forcibly dispossessed the tenant of complainant and illegally occupied the same without payment of monthly rent while complainant is residing at rented premises and he is paying huge amount in respect of monthly rent. He added that several times, he demanded to vacate the possession of the property in question, but respondent No.4 continuously harassing, pressurizing, blackmailing and extended threats for dire consequences.

3.       It reveals from the record that this criminal appeal was filed on 25.03.2019 and today this appeal has been presented before this Court, therefore, before issuing notice to the respondents, learned Counsel for the appellant is directed to satisfy the Court with regard to maintainability of this appeal, as such, he has been heard.

4.       Learned Counsel for the appellant contended that the order passed by the learned trial Court is perverse and the reasons are artificial, vis-à-vis the material on record; that the grounds on which the trial Court proceeded to dismiss the complaint of appellant are not supportable from material on record. Per learned counsel, the appellant has successfully proved its case beyond any reasonable doubt; that respondent No.4 alongwith proposed accused (in complaint) should be awarded exemplary punishment as they do not deserve any concession; that the subject property was gifted to the appellant by his mother Mehboob Bi, but respondent No.4 along with other legal heirs are in occupation of the property without any right and title over the same; that respondent No.4 along with other legal heirs filed Civil Suit No.1240 of  2013 before XIth Senior Civil Judge, Karachi, against the appellant, which was dismissed. Lastly, he prayed  that as respondent No.4 forcibly dispossessed his tenant, therefore, his complaint be registered and warrant of respondent No.4 along with other proposed accused nominated in his complaint be issued in accordance with law.

5.       I have given my anxious thoughts to the contentions raised at the bar and after going through the material alongwith the impugned order, come to this conclusion that the appellant has failed to prove its case against respondent No.4 for the reasons that admittedly in this matter, appellant and respondent No.4 alongwith proposed accused persons nominated in complaint, are the real brothers and sisters to each other. Appellant has not been made a party to his sister. The dispute arose in this case over the immovable property and appellant is claiming that respondent No.4 along with other legal heirs have forcibly ejected his tenant and then occupied his house, but no date and time of the dispossession act has been mentioned in the memo of appeal or in application of Illegal Dispossession Act, 2005. During the course of arguments, I have specifically asked the question on which date, the respondent No.4 along with other legal heirs have occupied the house and why he did not mentioned the date and time in the memo of appeal or in application with regard to forcibly occupying his property, he has no answer with him. Apart from that, nothing on record that tenant of appellant had filed any complaint regarding their illegal dispossession from the subject property.

6.       Besides this, I have perused the impugned order with the able assistance of the learned Counsel for the appellant and in my humble view, learned trial Court while passing the impugned order has addressed all the points involved in this case. Admittedly, in this case, there are number of infirmities/lacunas, which were were highlighted by the trial Court in the impugned order. During the course of arguments, I have again specifically asked the question from the learned Counsel for the appellant to point out/show any illegality or irregularity in the impugned order, no satisfactory answer was available with him. The impugned order in my considered view does not suffer from any illegality or infirmity.

7.       For what has been discussed above, I am of the considered view that impugned judgment is based upon valid and sound reasons and is entirely in consonance with the law laid down by the Hon’ble Supreme Court of Pakistan. Neither, there is any illegality/infirmity or misconstruction of facts and law have been pointed out. Resultantly, the instant criminal appeal is without merits and the same is dismissed in limine along with pending applications.

JUDGE

Faizan A. Rathore/PA*