THE HIGH COURT OF SINDH AT KARACHI

Criminal Revision Application No.187 of 2024

Present:

Mr. Justice Shamsuddin Abbasi

Applicant : Ghulam Sarwar son of Ali Jan through Syed Ahsan Imam Rizvi, advocate

Respondent No. : Shaikh Muhammad Mushtaq through Mr. Mukesh Kumar Talreja, advocate

The State : Through Ms. Seema Zaidi, Additional Prosecutor General Sindh

Date of Hearing : 18.03.2025

Date of Judgment : 21.03.2025

O R D E R

SHAMSUDDIN ABBASI, J.—Applicant Ghulam Sarwar has impugned the order dated 26.09.2024, passed by learned Additional Sessions Judge-IV, Karachi West in Direct Complaint No.56/2024 (Shaikh Muhammad Mushtaque versus Arif Mehmood & Others), whereby learned trial Court has taken the cognizance of offence under Sections 3 and 4 of the Illegal Dispossession Act, 2005 against respondents 2 and 3, Tahir Mehmood and Asif Mehmood and applicant Ghulam Sarwar.

2. Facts involved in the instant criminal revision application are that respondent No.2 Tahir Mehmood being leaseholder of Plot No.107-D, admeasuring 1000 square yards, situated at Sheet No.2, Sector 11 1/2 , Gulshan-e-Zia, Orangi Town, Karachi sold out the same to the complainant Shaikh Muhammad Mushtaque in the year 2020 and handed over the vacant peaceful possession to the complainant. Thereafter, on 08.03.2024, present applicant along with others forcibly and illegally dispossessed the complainant and occupied the said plot, erected boundary wall and iron gate and put their security guards and lodged two FIRs against respondent No.1 and others on the pretext of law and order situation. Thus, the inquiry officer finally asserted that present applicant and others are in illegal occupation of the plot in question.

3. Learned counsel for applicant submits that the applicant is innocent and he has been falsely implicated in this case due to mala fide intentions and ulterior motives; that the applicant has not been implicated in the complaint; that the applicant has purchased the property from respondent No.1 through registered sale deed after paying sale consideration Rs.84,000,000/- (Rupees Eight Crore Forty Lacs); that there is civil dispute between respondents 1, 2 and 3 and lis of civil cases filed by both the parties against each other and some of the cases are still pending; that there is a civil dispute between respondent No.1, 2 and 3 and respondent No.1 has mala fidely converted the civil litigation into criminal case; that the applicant has also filed civil Suit, which is pending adjudication before the competent Court of law; that the impugned order is illegal, without jurisdiction and is liable to be set aside.

4. On the other hand, learned counsel for respondent No.1 has supported the impugned order and submits that there is no illegality or infirmity in the impugned order, which has been passed in accordance with law; that it is settled proposition that criminal litigation and civil litigation can go side by side; that the applicant is in possession of the subject property since last four years and he was illegally dispossessed from the same; that series of FIRs were registered against respondent No.1/complainant and police has refused to record his FIR in view of Sughran Bibi Case (PLD 2018 SC 595); that respondents have admitted in their written statement in the Suit filed by respondents 1 wherein they admitted that respondent No.1 is lawful owner and in possession of the subject property; that the learned trial Court called report from the concerned SHO as well as the authorities concerned and both the reports are in favour of respondent No.1/complainant. Learned Additional Prosecutor General Sindh has adopted the arguments advanced by learned counsel for respondent No.1 and supports the impugned order.

5. Heard learned counsel for applicant, learned counsel for counsel for respondent No.1 and perused the material available on record.

6. Admittedly, there is dispute between respondent No.1 and respondents 2 and 3 over Plot No.107-D, admeasuring 1000 square yards, situated at Sheet No.2, Sector 11 ½ , Gulshan-e-Zia, Orangi Town, Karachi. Respondents 2 and 3 have sold the said plot to respondent No.1 in the year 2020 and its peaceful possession was handed over to him. Thereafter, respondent No.1 has sold the said plot to the applicant. Both the parties have filed civil suits against each other before the competent Court of law. It is alleged in the complaint that on 08.03.2024 respondents 2 to 9 and applicant have entered into his plot, caused damages, taken away his valuables and erected boundary wall and iron gate and registered FIRs against respondent No.1. After filing complaint, learned trial Court called report from SHO P.S. Pakistan Bazar, which reveals that respondent No.1 was dispossessed from the subject property on 08.03.2024 and 2 FIRs were registered against respondent No.1/complainant being FIR No.118/2024 and FIR No.139/2024 at the same police station and police has not recorded his version in view of dicta laid down in Sughran Bibi’s case. Therefore, he approached different forums for redressal of his grievance in accordance with law, including present case under Sections 3 and 4 of the Illegal Dispossession Act, 2005. Learned trial Court after calling reports and having passed the impugned order. I have gone through the impugned order and reproduce relevant portion as under:

“The version of the complainant has been supported by his witnesses and enquiry report submitted by the enquiry officer of concerned police station as discussed in para supra. Moreover, as per verification report of Project Director Orangi Township KMC lease of the subject property issued in the name of proposed accused No.1 vide Serial No.658 dated 07.05.2024, thereafter, said plot was transferred to proposed accused No.9 vide sale deed 02.02.2024 vide Serial No.321 and rectification deed has also been executed in his name along with one Farhan on 12.03.2024. It is very surprising to note here as per available record that in the month of November 2020 the proposed accused No.1 had sold out the subject property to the complainant under execution of proper sale agreement against the payment received by him in cash and through fuel cards and delivered the possession of plot to complainant who during the course of enquiry found to be in possession of said property. Subsequently, respondent No.1 transferred of subject plot by proposed accused No.1 in the name of proposed accused No.9 in collusion with respondent No.2 in the current year which established an utmost conspiracy and such process does not curtail the criminal act of illegal dispossession on their part. So, after hearing of learned respective counsel of both sides and perusal of relevant record, I am of the view that prima facie case is made out under section 3 / 4 of the Illegal Dispossession Act, 2005 against the proposed accused persons Nos.1, 2 and 9. Resultantly, by taking cognizance, I admit the complainant under Sections 3 / 4 of the Illegal Dispossession Act, 2005 against proposed accused/respondents Nos.1, 2 and 9, namely, Arif Mehmood, Tahir Mehmood and Ghulam Sarwar. Let bailable warrants be issued against them in the sum of Rs.50,000/- each and P.R. Bond in the like amount. Put off to next date of hearing for further proceedings accordingly.”

7. From perusal of impugned order it reveals that respondent No.3 had sold the subject property to respondent No.1 under execution of proper sale agreement against the payment received by him in cash and through fuel cards and handed over the peaceful vacant possession of plot to the complainant. From tentative assessment of the material available on record, it appears that applicant and respondent No.2 to 9 have forcibly dispossessed him from the lawful possession of the subject plot and learned trial Court has rightly taken the cognizance of the offence. I do not see any illegality and infirmity in the impugned order. Applicant has joined the trial and alternate remedy is available to him for his premature acquittal in terms of Section 265-K, Cr.PC. Instant criminal revision application is accordingly dismissed.

J U D G E

Gulsher/PS