IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Crl.Revision Appln.No.S-12 of 2017
Applicant : Through Mr.Habibullah Ghouri, Advocate
Respondents : Through Mr.Muhammad Afzal Jagirani,
Advocate for private respondents.
Mr. Raja Imtiaz Ali Solangi, A.P.G
for official respondents
Date of hearing : 31.08.2018
Date of order : 05.09.2018
O R D E R
IRSHAD ALI SHAH, J.- The facts in brief necessary for disposal of instant criminal revision application are that the applicant filed a direct complaint against the private respondents under provisions of section 3/4 of Illegal Dispossession Act, 2005. It was dismissed by the learned Additional Sessions Judge, Qamber, by way of order dated 11.02.2017 by making an observation to the following effect;
“There is nothing on record that the respondents are belonged to a group of property grabbers, Qabza group or land grabbers or there is material about their involvement in some previous activities committed that illegality of dispossession. On the contrary, applicant and respondent No.1 & 2 are in blood relation and matter is pertain to civil nature, hence there is no prima facie case against proposed accused/respondents”.
2. The applicant has impugned the above said order of dismissal of his direct complaint by learned trial Court before this Court by way of instant criminal revision application.
3. It is contended by the learned counsel for the applicant that the learned trial Court has dismissed the direct complaint of the applicant without any lawful justification, on the basis of irrelevant observations. By contending so, he sought for remand of the matter for its trial afresh by learned trial Court in accordance with law.
4. Learned counsel for the private respondents and learned A.P.G for the official respondents sought for dismissal of the instant criminal revision application by contending that the dispute between the parties, if any, is over inheritance of the property, which could only be resolved by a Civil Court having jurisdiction. By contending so, they supported the impugned order of learned trial Court.
5. I have considered the above arguments and perused the record.
6. As per the applicant, he is owner of the disputed land survey number; the same according to him has been occupied by the private respondents by force. It is denied by the private respondents that they have occupied the disputed land survey number by force. By making such denial, it was stated by them that there is dispute between them and the applicant over inheritance of the property. The applicant in order to prove his ownership over the disputed land survey number has produced copy of Village Form VII-B, which tentatively is appearing to be enough proof for taking cognizance of the complaint under the provisions of 3/4 Illegal Dispossession Act, 2005. It is settled by now that to make out a case for cognizance by way of inquiry, the burden upon the complainant is light. Inquiry could not be equated with trial, as in trial the complainant has to prove his case against the accused beyond shadow of doubt. In these circumstances, the dismissal of the direct complaint of the applicant by learned trial Court by making an observation that the dispute between the applicant and the private respondents is to be resolved by Civil Court having jurisdiction was unjustified.
7. In case of Shaikh Muhammad Naseem vs. Mst.Farida Gul (2016 SCMR-1931), it has been held by the Hon’ble Supreme Court of Pakistan that;
“Whosoever committed the act of illegal dispossession, as described in the said Act against a lawful owner or a lawful occupier, he could be prosecuted under its provisions without any restriction irrespective of pendency of civil litigation”.
8. No civil remedy apparently is exhausted by the private respondents to prove their claim that there is dispute between them and applicant over inheritance of the property; such failure on their part could not be lost sight of. In that situation, the applicant could not be prevented from maintaining his direct complaint against them under the provisions of Section 3/4 of Illegal Dispossession Act, 2005, which of course is subject to rebuttal on legal as well as factual aspects.
9. It has further been held by the Hon’ble Supreme Court of Pakistan in case of Shaikh Muhammad Naseem (supra) 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”.
10. In view of the facts and reasons discussed above, the impugned order of learned trial Court 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 hearing all the concerned.
11. The instant criminal revision application stands disposed of accordingly.
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