HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No.340 of 2013

 

Present:

Justice Naimatullah Phulpoto, J.

 

Appellant                                :           Mst. Haseena Begum through Mr. Babar Ali                                                           Shaikh, Advocate

 

Respondents                          :           Ibrahim and Faheem Lodha through                                                           Mr. Anwar Ahmed, Advocate

 

The State through Mr. Abrar Ali Khichi, Assistant Prosecutor General Sindh

 

Date of Hearing                     :           28th August, 2015

Date of Announcement        :           04th September, 2015

 

J U D G M E N T

 

          Naimatullah Phulpoto, J.--- Through this Criminal Appeal       Mst. Haseena Begum has challenged the order dated 20.09.2013 passed by learned IV Additional Sessions Judge, Karachi Central in Criminal Petition No.581 of 2013.

 

2.       Brief facts leading to the filing of the instant appeal are that         Mst. Haseena Begum filed complaint under the provisions of the Illegal Dispossession Act, 2005, against the respondents for initiating criminal proceedings against them and for handing over possession of the shop to the complainant which has been occupied by the respondents. It is stated that complainant had entered into the rent agreement with respondent No.1 on 05.07.1984, monthly rent was increased by mutual consent from time to time. Complainant asked the respondents to vacate Shop No.2 but they failed and demanded Rs.2,800,000/-, which resulted filing of the aforesaid proceedings. Learned IV Additional Sessions Judge Karachi Central dismissed Criminal Petition No.581/2013 vide order dated 20.09.2013 mainly for the following reasons:

 

“From the spot inquiry report of the S.H.O. it is evident that the petition is a landlord of subject matter and Ibrahim is tenant of said tenement, so in my view the instant illegal complaint filed by the petition does not come under the domain of illegal dispossession act for the reason that as per spot inquiry report of the S.H.O. and the agreement which has been annexed by the petitioner alongwith her petition indicate that they are tenant and landlord, so such case of the petitioner does not come under the domain of Illegal Dispossession Act, 2005, hence the same is dismissed, liberty to petitioner to approach the Court having jurisdiction.”

 

3.       Mr. Babar Ali Shaikh, advocate for the appellant Mst. Haseena argued that she is owner of the shops, the respondents are trespassers. He has argued that the impugned order is not sustainable under the law.

 

4.       Mr. Anwar Ahmed, advocate appearing on behalf of the respondents argued that there was tenancy agreement between the parties. Differences arose between the parties and respondents are depositing rent in the Court. He has argued that provisions of the Illegal Dispossession Act, 2005, are not applicable in this case as according to him said Act was introduced to curb the activities of the property grabbers.

 

5.       Mr. Abrar Ali Khichi, learned Assistant Prosecutor General Sindh, argued that there is sufficient material on record to show that there was relationship of the landlord and the tenant between the parties, he supported the impugned order.

 

6.       After hearing the learned counsel for the parties and going through the documents appended with the case, it has been notices that there was rent agreement between Muhammad Ibrahim and Mst. Haseena Begum regarding the shops, copy of the same has been annexed to the appeal as Annexure “B” (Page-33). Full Bench of the Lahore High Court Lahore in the case of Zahoor Ahmed and 5 others versus THE STATE and 3 others (PLD 2007 Lahore 231) has held that the Illegal Dispossession Act has no application to cases of dispossession between co-owners and co-sharers and also that the said Act is not relevant to bona fide civil disputes which are already subjudice before civil or revenue Courts. It had also been declared by the Lahore High Court 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. Honourable Supreme Court has approved the above mentioned case of Zahoor Ahmed and 5 others versus the State and 3 others (PLD 2007 Lahore 231) in the case of BASHIR AHMED versus ADDITIONAL SESSIONS JUDGE, FAISALABAD and 4 others (PLD 2010 SC 661) and observed as under:-

 

“It has been conceded before us by the learned counsel for the petitioner that no material is available with the petitioner to establish that respondents Nos. 2 to 4 belonged to any Qabza group or land mafia or that they had the credentials or antecedents of being property grabbers. In view of the discussion made above the impugned acquittal or respondents Nos. 2 to 4 recorded by the learned Additional Sessions Judge, Faisalabad upon acceptance of their application submitted under section 265-K, Cr. P. C. has been found by us to be entirely justified and dismissal of the petitioner's writ petition by the learned Judge of the Lahore high Court, Lahore has also been found by us to be unexceptionable. In the circumstances of this case mentioned above we have entertained an irresistible impression that through filing of his complaint under the Illegal Dispossession Act, 2005 the petitioner had tried to transform a bona fide civil dispute between the parties into a criminal case so as to bring the weight of criminal law and process to bear upon respondents Nos. 2 to 4 in order to extract concessions from them. Such utilization of the criminal law and process by the petitioner has been found by us to be an abuse of the process of law which cannot be allowed to be perpetuated.”

 

7.       There is no material with Mst. Haseena Begum to establish that respondents Nos.1 and 2 belong to any Qabza group or land mafia or that they had the credentials or antecedents of being property grabbers.

 

8.       In the above stated circumstances, I have no hesitation to hold that by filing of the complaint under the Illegal Dispossession Act, 2005       Mst. Haseena Begum has tried to transform a bona fide civil dispute between the landlord and tenant into a criminal case so as to bring the weight of criminal law and process to bear upon respondents Nos.1 and 2 in order to extract concessions from them. Such utilization of the criminal law and process by appellant Mst. Haseena Begum is found to be an abuse of the process of law which cannot be allowed to be perpetuated.

9.       In my view learned Additional Sessions Judge has rightly dismissed complaint filed under the provisions of The Illegal Dispossession Act, 2005.

 

          For what has been discussed above, instant criminal appeal converted to criminal revision application is dismissed.

 

                                                                                      JUDGE

Gulsher/PA