HIGH COURT OF SINDH AT KARACHI
Criminal Appeal No.494 of 2019
Syed Abdul Wahab ………………… Appellant
versus
The learned VIIIth Additional
District and Sessions Judge,
Karachi (West) and 6 others ………………… Respondents
Date of hearing : 24.10.2019
Date of Order : 24.10.2019
Mr. Munawwar Ali Memon, Advocate for the Appellant.
Mr. Ovais Ali Shah, Advocate for the Respondents No.5.
Mr. Ali Haider Saleem, Deputy Prosecutor General, Sindh.
JUDGMENT
Abdul Maalik Gaddi, J.– Through this criminal appeal, the appellant Syed Abdul Wahab has assailed the legality and propriety of the order dated 27.11.2018, passed by the learned VIIIth Additional District and Sessions Judge, Karachi (West) in Direct Complaint No.79 of 2018, filed by the appellant against the private respondents under Section 3 and 4 of the Illegal Dispossession Act, 2005 for restoration of possession of the subject property in his favour and to punish the private respondents (wrong doers), whereby the learned trial Court after hearing the appellant and perusing the documents on record, dismissed the said complaint through impugned order.
2. Facts necessary for the disposal of this appeal are that appellant Syed Abdul Wahab son of Hassan Imam Ghazi has filed complaint against the private respondents before the trial Court alleging that he is/was the lawful owner of the land R-23, measuring 120 square yards in A-1 City, Survey No.133 and 134, Deh Tapo Manghopir, Karachi West by further alleging that same has been illegally encroached by the private respondents on 20.04.2018.
3. It is argued by the learned Counsel for the appellant that the impugned order is bad in law, inasmuch as, the same has been passed without proper appreciation of the documents on record; that the remedy under Illegal Dispossession Act has been provided by law to make an effective check against the menace of Illegal Dispossession by the persons acting in violation of law and due to alarming tendency of depriving citizens of their property rights; that the order of the learned trial Court amounts to refusal to exercise jurisdiction; that the learned trial Court has hurriedly based its decision on report of the Mukhtiarkar who has cunningly suppressed facts from the Court just to provide protection to land grabbers who are highly influential persons working under the patronage of those who are in power; that Mukhtiarkar has suppressed the fact that Malkano has already been paid by the builder and that the Board of Revenue has also issued regularization letters which facts was brought to the notice of learned trial Court, but the same was not considered by the learned trial Court and instead it proceeded to decide the matter on the basis of fabricated report of Mukhtiarkar treating it as a gospel truth; that the learned trial Court has ignored the fact that the subject house was built on a privately owned land and not on government land. It is specifically mentioned in the Lease Deed that the subject land is private land free from all encumbrances, lien and attachment having acquired by purchase from private land owners vide Sale Deed dated 28.01.1977, Registration No.768, pages No.15 to 19, Vol. 663 of Book-I Addl. By Sr.Karachi and subsequently mutated in the records of rights maintained by the Mukhtiarkar Karachi in the name of Lessor i.e. Sultanabad Cooperative Housing Society, Limited; that the lease deed also shows that the possession has been handed over to the lessee which clearly demonstrates that applicant was in lawful possession of the subject house constructed on plot; that the learned trial Court has dismissed the complaint summarily without affording complainant to prove his case on mere conjectures, surmises and summations; that the order of the learned trial Court is contrary to the view recently expressed by Hon’ble Supreme Court of Pakistan in number of judgments, thereby enlarging the scope of Illegal Dispossession Act, rather than restricting it, so that the menace of Illegal Dispossession Act may be curbed. However, he prayed that this appeal may be allowed and case may be remanded to trial Court for just decision. In support of his contentions, learned Counsel has relied upon the following case laws:-
i. Shaikh Muhammad Naseem v. Mst. Farida Gul reported in 2016 SCMR 1931;
ii. Mst. Gulshan Bibi and others v. Muhammad Sadiq and other reported in PLD 2016 Supreme Court 769;
iii. Muhammad Akram and 9 others v. Muhammad Yousaf and another reported in 2009 SCMR 1066;
iv. Daim Ali Khan v. Mushtaque Ali alias Farooq and 4 others reported in 2017 YLR 1456;
4. As against this, learned Counsel for respondent No.5 and learned Deputy Prosecutor General, Sindh, have supported the impugned order by arguing that the impugned order is perfect in law and on facts and further submits that neither the appellant is lawful owner, nor lawful occupier of the premises in question and the appellant has filed the complaint of Illegal Dispossession Act just to defeat the civil litigations already pending before this Court with regard to the same subject matter in which the government has also filed his written statement challenging the title of the appellant in property and according to them, these civil suits have been filed prior to filing of complaint by the appellant; therefore, according to them, the proceedings under Illegal Dispossession Act was based upon malafide, ulterior motives and just to defeat the proceedings in the said civil suits. They further submit that the appellant was never remained in possession of the subject property. During the course of arguments, they have taken to me towards various documents on record including report of Mukhtiarkar Revenue Manghopir, District Karachi (West) and were of the view that in light of the said report, learned trial Court has rightly passed the order impugned in this case. They also submit that the appellant has failed to establish his lawful title on the subject property or as lawful occupier; therefore, the provisions of Section 3 and 4 of the Illegal Dispossession Act, 2005 do not attract in this case. Hence, this appeal may be dismissed. In support of their arguments, they relied upon the following case laws:-
i. Habibullah and others v. Abdul Manan and others reported in 2012 SCMR 1533;
ii. Qabil Khan v. Vth Additional Sessions Judge South Karachi and others reported in 2018 P.Cr.L.J. 1027;
iii. Allah Rakhio and another v. The State and 4 others reported as 2017 YLR Note 409;
5. I have heard the learned Counsel for the parties at a considerable length and have gone through the case papers so made available before me.
6. It is the case of the appellant that he is the lawful owner on the basis of general power of attorney, whereas, the actual lease is in the name of Mrs. Anjum Ara Akhtar. On perusal of definition of Section 2(c) and (d) of the Illegal Dispossession Act, 2005, which says that the person should be lawful owner or lawful occupier before seeking remedy under this act. Herein this case, the appellant though claim that general power of attorney was given to him by Mst. Anjum Ara Akhtar with regard to subject premises, but on perusal of general power of attorney, it also does not indicate that Mrs. Anjum Ara Akhtar has delivered the possession of the premises in question to the appellant. The appellant also claims that Mrs. Anjum Ara Akhtar has also executed Sale Agreement dated 21.06.2005 in his favour, but the complete copy of sale agreement has not been produced/annexed with this appeal as second page of the said sale agreement is missing. On Court query, learned Counsel for the appellant has not offered any plausible answer in this regard.
7. During the course of arguments, I have also specifically asked the question from learned Counsel for the appellant as to whether in terms of sale agreement, possession was handed over to the appellant, he has no satisfactory answer with him because of missing of second page of the sale agreement. Even otherwise, the agreement to sale does not confer any right or title over the property. No tangible evidence/documents is available on record to show that the appellant was in possession and subsequently, he was dispossessed from the subject premises. It is noted that the documents on the basis of which the appellant has claimed his title are also kept in the Revenue Record with red ink and in this connection report of Mukhtiarkar Manghopir dated 18.10.2018 is available on record. Nothing on record that the appellant was ever properly and legally put into the possession by Mrs. Anjum Ara Akhtar in the subject premises. Thus, the title and possession of the appellant under this act in the subject property is under cloud. Besides, both the sides have got documents and in such condition, who is genuine owner cannot be decided by this forum. In other words, it is difficult to hold that which party is lawful occupant or owner within the meaning of Section 2(c) and (d) of Illegal Dispossession Act, 2005.
8. It reveals from the record that four (4) civil suits for declaration, permanent injunction and possession were filed before this Court with regard to same subject property and these suits were filed prior to institution of direct complaint. Thus, the dispute between the parties over the subject property was bonafide civil dispute, which was already subjudice before this Court in different suits. It has been held by the Full Bench of the Lahore High Court, Lahore in the case of Zahoor Ahmad and 5 others v. The State reported in PLD 2007 Lah. 231 that the Illegal Dispossession Act, 2005 has no application to cases of dispossession between co-owners and co-sharers and also that the said act is not relevant to bonafide civil disputes, which are already sub judice before civil or revenue Courts. It has also been declared by the Full Bench of the Lahore High Court, Lahore in that case that the Illegal Dispossession Act, 2005 was introduced in order to curb the activities of Qabza groups/property grabbers and land mafia. During the course of arguments, it has been conceded by the learned counsel for the appellant that no material is available with the appellant to establish that respondents belonged to any Qabza group or land mafia or that they had the credentials or antecedents of being property grabbers.
9. In the circumstances of this case mentioned above, I have entertained an irresistible impression that through filing of his complaint under the Illegal Dispossession Act, 2005, the appellant has tried to transform a bonafide civil dispute between the parties into a criminal case so as to bring the weight of criminal law and process to bear upon respondents in order to extract concessions from them. Such utilization of the criminal law and process by the appellant has been found by this Court to be an abuse of the process of law which cannot be allowed to be perpetuated.
10. It is argued by the learned Counsel for the appellant that the complaint filed by the appellant was dismissed in hurriedly manner and without notice to the respondents, therefore, the case may be remanded. I am not impressed with the arguments of learned Counsel for the appellant as it is observed here that in view of plethora of pending cases, instead of allowing the complainant/prosecution to produce week, deficient and inadmissible proposed evidence in the trial, it is high time for Courts to exercise such vast power vested therewith to save the precious public time for conducting other meaningful proceedings in some other matters pending in Courts objectively.
11. For what has been discussed above, this criminal appeal is dismissed along with listed application, if any. The case laws cited by the learned Counsel for the appellant have been perused and considered by me, but did not find applicable to the facts of the present case.
12. Before parting with order, I would like to make it clear that observations made hereinabove shall not influence the merits of the cases of either parties pending adjudication in any Court of law.
Faizan A. Rathore/PA* JUDGE