ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Crl. Revision Appln.No.15 of 2018

 Date of hearing

Order with signature of Judge

 

1.     For orders on office objection “A”

2.     For hearing of case.

03.12.2018

                        Mr.Irfan Badar Abbasi, Advocate for the applicant.                                                            Mr.Ashiq Hussain Kalhoro, Advocate for respondents

                        Mr. Sharafuddin Kanhar, A.P.G.

 

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01.                  Differed.

02.                  The applicant by way of instant Crl.Revision.Application has impugned order dated 12.03.2018, passed by learned 1st Additional Sessions Judge, Mehar, whereby the direct complaint filed by the applicant for prosecution of the private respondents for offence punishable u/s 3/4 of Illegal Dispossession Act, 2005, for having encroached upon her landed property was dismissed, with the following observation;

“I have heard both the parties and perused the record. Report from concerned Mukhtiarkar has been called twice and 2nd report regarding possession of the land reveals that accused Ghulam Shabir is in possession of the land reveals that accused Ghulam Shabir is in possession of the land since 35 years, meaning thereby before promulgation of illegal dispossession Act, 2005. No doubt the land in question is registered in the name of complainant Mst.Khurshed Begum, who may avail remedy from competent Civil court and this Court is not competent to take cognizance of a dispute over land prior to the promulgation of illegal dispossession Act, 2005, therefore, I decline to take cognizance hence complaint in hand stands dismissed”.

 

                  It is contended by learned counsel for the applicant that the learned trial Court has dismissed the direct complaint of the applicant without lawful justification by making conclusion that the encroachment over the landed property of the applicant, if any, before enactment of Illegal Dispossession Act, 2005. By contending so, he sought for reversal of impugned order with direction to learned trial Court to take cognizance of the offence.

                   The learned A.P.G and learned counsel for the private respondents have sought for dismissal of the instant criminal revision application by contending that the applicant has remedy to exhaust before the Civil Court having jurisdiction for redressal of her grievance.         

                        I have considered the above arguments and perused the record.

                        There is no denial to the fact that the applicant is owner of the disputed land which according to her is occupied illegally by the private respondent. The dispute with the private respondents is only to the extent that they are in peaceful possession of the disputed land since 35 years. If for the sake of arguments, it is believed that the private respondents are in peaceful possession of the disputed land of the applicant since 35 years, even then there could be made no denial to the fact that such possession with them is unlawful and without consent of the applicant, as such it was illegal and unauthorized and was subject to provision of the Illegal Dispossession Act, 2005. In that situation, the learned trial Court ought not to have declined to take cognizance of the incident by making an observation that the dispute over the land is prior to enactment of Illegal Dispossession Act, 2005.

                        In case of Rahim Tahir vs. Ahmed Jan and others (PLD 2007 SC-423), it has been held by the Honourable Court that;

“---S. 3---Prevention of illegal of property etc.---Expressions “Grab, control or occupy” used in S.3 of the Illegal Dispossession Act, 2005, cannot be restricted to the illegal occupants who entered in the premises subsequent to the promulgation of the Act, rather all cases of illegal and unauthorized occupants would be subject to the Illegal Dispossession Act, 2005, except the cases which were pending adjudication before other forums.     

                       

                        For what has been discussed, the impugned order 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.

                        The instant criminal revision application stands disposed of accordingly. 

 

                                                                                                               JUDGE

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