IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Crl. Revision Application No.S-41 of 2024

DATE OF HEARING

ORDER WITH SIGNATURE OF JUDGE

1. For orders on M.A.No.3551/24.

2. For orders on M.A.No.3552/24.

3. For hearing of bail application.

Date of hearing 26.09.2024.

Mr. Ghulam Mujtaba Jakhar, Advocate for applicant.

Mr. Nisar Ahmed Bambhro, Advocate for proposed accused

Mr. Khalil Ahmed Maitlo, DPG for State.

***************

O R D E R

MEHMOOD A. KHAN, J; This is a Crl. Revision application u/s 435& 439 Cr.P.C, filed by the applicant in the matter impugning the order dated 02.05.2024 as passed by the Court of Additional Sessions Judge-II, Khairpur in Crl. Complaint No.25/2024 in the proceedings u/s 3&4 of Illegal Dispossession Act, 2005 which apparently are as an interim order passed u/s 7 of the said Act. Record shows that the learned trial Court had passed the impugned order after hearing both the parties wherein the impugned order apparently has been passed on account of failure of the respondents therein showing any material having legal entitlement to hold the possession. As apparently none has been discussed therein.

Learned counsel for applicant however, contended that the said proceedings have been filed through attorney and that the real person has never come before the Court. It is also contended that witnesses as alleged are not of the locality and he has further referred to the sale-deed contending that the PT1 filed on record present subsequent to the said sale-deed is dated 08.04.1985 whereas the sale-deed is said to be registered on 13.03.1985. (It is however, observed that the said documents to which no explanation came forth, that the paragraph of the sale-deed does not refer to PT1 with any date). It is also contended that no details of possession has been brought-up by the complainant. Learned counsel has also contended that provisions of Section 7(c) requires the exercise of taking over of the possession through authorized person and such was not the case present in the matter as possession has illegally been obtained under the cover of the said order. It is lastly contended by the learned counsel that the Commissioner be appointed to determine the illegal acts and determination of the present applicants living in the premises for generations. In support of his contentions he placed reliance upon the case of Abdul Hafeez v. Usman Farooqui through his daughter Sharmila Farrooqui and another (2008 PSC (Crl.) 959).

Learned counsel for the private respondents, however contended that the owner as per the registered documents had since died and the present applicants taking benefit of the death have acquired possession which is so referred in the complaint in the matter. He further contends that the utility bills are available in the name of the deceased/owner and that the process of possession was acquired through Mukhtiarkar concerned who was authorized in this regard. He also contends that the present applicant has voluntarily handed over the possession in compliance to the impugned order and the applicants despite filing an application under Section 265-K Cr.P.C before the learned Court are failing to proceed with the same. Learned counsel referring to the authorities relied upon contended that the question of title is not to be determined by the proceedings under the Illegal Dispossession Act. He relied upon cases of Shaikh Muhammad Naseem v. Mst. Farida Gul (2016 SCMR 1931), Mst. Gulshan Bibi and others v. Muhammad Sadiq and others (PLD 2016 Supreme Court 769), Noorullah v. Muhammad Farrukh and 4 others (2023 YLR Note 9) and Atta Rasool and 3 others v. Haji Muhammad Rafique and 2 others (2019 P.Crl.J 1023).

Learned Deputy Prosecutor General, however, supports impugned order contended that the same is a civil dispute.

In rebuttal, learned counsel for the applicant contended that no Mukhrtiarkar was appointed and no material has been brought-up in this matter.

Having heard learned counsels for parties and gone through the record. Apparently, this is interim order passed under Section-7 of the illegal Dispossession Act as already referred above wherein as an interim relief in a tentative form the learned trial Court is required to see after the version of the parties have come-up as to the regulation of possession which is available even to the extent of handing over of the same to the applicant before the regular commencement of main proceedings. Prima facie, the said coercive powers are liable to be exercised with great coercion however, it may be observed that the Court except applying its judicial mind has nothing more available to it other than the report/s from concerned authorities and the material provided by the parties. In the present matter it seems that present applicant (who is respondent/accused therein) perhaps apparently have failed to bring out the case before the learned trial Court and none was shown to this Court also whereby the interim powers and found exercise may be found exposed. The present applicant has failed to make out a case that he may be considering to legal possession of the subject property by any supporting material to be holding said understanding found present the learned trial Court has rightly passed the order as no material supporting the applicant seems to be present. It may however, be observed that this is only a tentative finding and the parties are yet to conclude the main proceedings as such I have preferred not to make any comment and/or to elaborate the legal effects of the material shown to this Court however, as to the impugned order no infirmity us found therein to disturb the same.

Accordingly, instant Revision application stands dismissed being having no merits.

J U D G E

Ihsan/PS