IN THE HIGH COURT OF SINDH, KARACHI

Criminal Revision Application No. S - 85 of 2017

Muhammad Nawaz………………………………..……….….……...Applicant

Versus

The IV-Additional Sessions Judge,

Malir, Karachi and others…....................................................…Respondent

Mr. Peer Tariq Ahmed, advocate for applicant.

Mr. Abdul Rasheed Kalpar, advocate for respondents No. 4 & 5

Mr. Altaf Hussain Khoso, advocate for respondent No. 3

Mr. Sagheer Abbasi, APG.

Date of hearing: 13.09.2018.

Date of Judgment: __________

J U D G M E N T

Fahim Ahmed Siddiqui, J- By filing the instant criminal revision application, the applicant has questioned the legality and propriety of the impugned Order dated 03-04-2017 passed by Additional Sessions Judge-IV, Malir Karachi in Illegal Dispossession Complaint No. Nil/2017 filed by the applicant under Section 3 of Illegal Dispossession Act, 2005. Under the verdict of impugned judgment, the learned trial Court has dismissed the complaint of the applicant by holding that the same is not maintainable.

2. The matrix of the case is that the applicant claims to be the owner of Survey No. 539 measuring 0.9 ghuntas, situated in Deh Mehran, Tapoo Malir, District Malir. It is claimed that on 03-04-2015 at about 3:00 a.m., applicant along with his guests was available on his said land when private respondents (proposed accused) armed with pistols along with some unknown persons came there. They forcibly entered into the lands of applicant by crossing over the boundary wall and harassed the applicant and dispossessed him from his property. The applicant reported the incident immediately to the concerned police station and filed an application to SHO but the same remained in vain. The applicant also approached with the notables of the locality but the private respondents did not put heads to the directives. Instead they threatened the applicant party for dire consequences. Hence, the applicant filed a complaint under Illegal Dispossession Act, which remained unfruitful as the same was declared by the trial Court not-maintainable.

3. While pressing the instant criminal revision application, the learned counsel for the applicant submits that the trial Court has dismissed the complaint on the ground that matter is pending before the civil court. He submits that there is no bar under the law to file criminal case during pendency of a civil litigation. In this respect he needed reliance from the case of Saikh Muhammad Naseem v/s Mst Farida Gul (2016 SCMR 1931).

4. Learned counsels for the respondents support the impugned judgement by submitting that the civil court has already given its verdict in favour of the respondents. He submits that as per report of Mukhtiarkar, the properties of the respective parties are entirely different and they are segregated to each other.

5. I have heard the arguments and have gone through the impugned order and have also perused the relevant record annexed with the instant criminal revision application. The report of Mukhtiarkar (Revenue), Taluka Airport, District Malir, Karachi (Annexure-'C') furnished to the SHO, PS airport is meaningful in this respect, which indicates that the applicant has no concern with the property of respondents. Besides, from the operating para of the impugned order that the series of litigations regarding the same piece of land is still pending between the parties and the title of the complainant is listed under cloud. It is also revealed from the impugned order that a previous similar complaint bearing No. 42/2015 had already been disposed of through order dated 05-04-2016 passed by the same court. This fact is verified from an enquiry report submitted in the aforementioned complaint by the SHO, according to which no such incident could be verified after enquiry/investigation.

6. Undoubtedly, there is no bar under the law for a party to avail criminal or civil remedies at a time but for filing a criminal complaint under Illegal Dispossession Act regarding the same property for which a civil litigation is pending, it is necessary that the party should appear before the court with clean hands, which is missing in the instant matter. The applicant is already under litigation with the private respondents and he remained failed so far to establish his right beside an earlier complained under illegally dispossession regarding the same property and same incident has already been disposed of, hence there is no need to revise the impugned order, which is apparently without any flaw and error. In the present circumstances, the plea of parallel proceedings cannot be extended in favour of the applicant for the purpose of arm-twisting of the party with whom the applicant is at loggerhead since long. With these observation, the instant criminal revision is dismissed.

J U D G E