IN THE HIGH COURT OF SINDH AT KARACHI

Cr. Rev. Application No. 207 of 2017

Hanfia Alamgir Jame Masjid Trust.………..……………...………..Applicant

Versus

Mst. Nuzhat Fatima……. ………………………..……………….Respondent

Date of Hearing : 14.09.2018

Mr. Muhammad Saleemuddin Qureshi, advocate for the Applicants

Mr. Tariq Mehmood A. Khan, advocate for Respondent

Mr. Sagheer Abbasi, APG

O R D E R

FAHIM AHMED SIDDIQUI, J: Through the instant criminal revision application, the Applicant Trust has assailed the impugned order dated 22-11-2017, passed by the learned Additional Sessions Judge-X, Karachi East, whereby the learned Additional Sessions Judge dismissed the application filed by the applicant under Section 3 of the Illegal Dispossession Act, 2002.

2. As per memo of instant application, the concise facts of the case are that the applicant trust is the owner/landlord of shops situated adjacent to Hanfia Alamgir Jame Masjid, Area 2-A, Sector 37-K, near Barber Market, Landhi No. 2, Karachi. Amongst those shops, in Shop No. 41, the husband of respondent was tenant and after his death, her son Faheemuddin became tenant of the said shop. Earlier, the parties remained under litigation before learned Rent Controller regarding the same premises besides civil and criminal cases were also filed. Nevertheless, the earlier round of litigation was ended on compromise but after compromise in earlier rent case bearing RC No. 235/2007, the respondent again committed default, hence another rent case being RC No. 300/2013 was filed, which was ex-parte decided in favour of the applicant. Subsequently, execution proceedings were carried out and the possession of the said shop was handed over to the applicant on 09-12-2016 by the bailiff of the court.

3. Allegedly, on 28-05-2017, the respondent through her attorney by break opening the locks of the said shop of applicant, illegally occupied the said shop after dispossessing the applicant. The applicant has filed an application under Section 3 of Illegal Dispossession Act, which was dismissed by impugned order.

4. The learned counsel for the applicant, after describing the entire scenario of litigation, submits that the premises was handed over to the applicant by the bailiff of the court under execution proceeding. According to him, the proceeding of vacating the shop was carried out with police aid by the bailiff as per directions of the executing court and the possession was handed over to the representatives of the applicant trust on 09-12-2016. He submits that after getting possession of the premises, the applicant trust put their own locks on the shop, as such the possession was continuously with the applicant after getting the possession of the said shop. He submits that the case filed by the applicant under the Illegal Dispossession Act was dismissed only on the ground that there is a mistake in the name of deceased husband of the respondent. According to him, due to some mistake in the enquiry report submitted by the SHO, the application of the applicant was dismissed. He submits that infact the shop was taken over by the son of the respondent but in enquiry report due to typographical mistake 'husband' is mentioned.

5. On the other hand, the learned counsel for the respondent submits that no such incident has taken place and whatever mentioned by the application is false. He draws attention towards Nazir Report dated 17-10-2017 available on record and submits that from the said report it is revealed that the inspection was carried out on 14-10-2017 by Nazir and after enquiry from the adjacent shopkeepers, he found that the shop in question was locked since long. He submits that the applicant is playing tricks and nominated a widow as proposed accused, who has done nothing. He submits that even her son has not done anything and the complaint was filed with ulterior motives, which is clear from the fact that the proposed accused is nominated through her attorney. According to him, a criminal case cannot be proceeded through attorney. He supports impugned order and submits that the same is not required any interference.

6. In rebuttal, the learned counsel for the applicant submits that the actual dispossession was done by another son of the respondent namely Nadeemuddin, who acted on her behalf that is why she is made respondent through her attorney Nadeemuddin.

7. I have heard the arguments and have gone through the relevant record. The factual position is that the deceased husband of the respondent was tenant in the said shop and tenancy was subsequently transferred to the son of deceased tenant namely Faheemuddin and not to the respondent. The learned counsel for the applicant admits that the illegal dispossession from the shop was physically done by the son of the respondent but his contention is that he acted on her behalf. However, the learned counsel could not point out that how he has ascertained that the son of respondent has acted on her behalf. It is also a factual position that the parties are already at loggerhead and they remained busy in litigation for quite some time. If the son of respondent has physically dispossessed the applicant then why his mother is made party by considering him as attorney of his mother. Besides, how a criminal case can be proceeded against a person through his attorney and in case of conviction and sentence, who will bear the pain amongst them. I am of the view that by involving a household woman, the applicant intends to intensify the pressure upon the respondent party. In my opinion, the act of applicant to nominate the mother of alleged actual culprit, amounts to arm-twisting of respondent, which is not befitting to a religious trust. With these discussion, the instant criminal revision is dismissed. However, the applicant may file another proper application before the trial Court by involving the actual persons as proposed accused, if any act of illegal dispossession is actually carried out. With these observations, the instant criminal revision is dismissed.

J U D G E