HIGH COURT OF SINDH AT KARACHI
Criminal Revision Application No.145 of 2011
Present:
Justice Naimatullah Phulpoto, J.
Date of Hearing 27th August,
2015
Date of Announcement 04th
September, 2015
Applicant Dr.
Khalid Ahmed through Mr. Shamshad Ali Qureshi, Advocate
Respondents Mst. Roshan Ara,
Ali Nawaz, Sarfaraz Nawaz, Rub Nawaz, Asif Nawaz, Muhammad
Naeem, Iqbal Ahmed and SIP Nisar
Qureshi through Mr. Shah Khan, Advocate
The
State through Mr. Abrar Ali Khichi,
Assistant Prosecutor General Sindh
J U D G M E N T
Naimatullah Phulpoto, J.--- Through this Criminal Revision Application Dr. Khalid Ahmed has called in question order dated 06.07.2011 passed by learned Ist Additional Sessions Judge, Karachi West in Criminal Miscellaneous Application No.23 of 2011, whereby complainant under the provisions of the Illegal Dispossession Act, 2005, was dismissed.
2. Brief facts leading to the filing of the instant criminal revision application are that complainant is Chairman of Haqiqat Social Welfare Association and he is doctor by profession. He has stated in complaint that he runs a clinic on Plot No.K-422/A, situated at Sector 15-D, measuring 90 square yards at Thorani Goth, Orangi Town, Karachi, purchased by him on 03.02.2009 in the consideration of Rs.400,000/-, which he paid to respondent No.1, such sale agreement was executed. Complainant started construction over the plot. It is alleged that respondents Nos.1 to 4 and 5 with collusion of respondent No.7 issued threats to the complainant to vacate the disputed plot and demanded more money. It is alleged that on 27.05.2010 respondents Nos.2, 3 and 7 armed with weapons entered in the clinic of the complainant, issued him threats of dire consequences for vacating the plot. Complainant lodged F.I.R. against the respondent bearing Crime No.396/2010 dated 10.06.2010. It is also alleged that complainant filed Civil Suit No.639/2010 before Civil Judge/Judicial Magistrate-I, Karachi West for permanent injunction against the respondents. Eventually, compliant under the Illegal Dispossession Act, 2005, was also filed. Learned Ist Additional Sessions Judge Karachi West by order dated 06.07.2011 dismissed the same while observing as under:
“From the perusal of record and case laws it reveals that case laws which were submitted by the counsel for complainant in support of establishing the cased, which are entirely different footing in this case.
In the light of facts and circumstances present case laws are not applicable in this case and on the query of Court, learned counsel for complainant failed to show title documents. The Illegal Dispossession Act has been imposed in order to protect the lawful owner and lawful occupant, who has title documents, lawful owner purely licensess and present property in question is katchi abadi and no one has title documents therefore ingredients of Illegal Dispossession Act are entirely missing in this case. I therefore dismiss the same on the point of non-maintainability.”
3. Mr. Shamshad Ali Qureshi, learned advocate for the applicant Dr. Khalid Ahmed argued that complaint has been dismissed without recording the statement of the complainant. He has argued that complainant has purchased the plot and sale agreement was executed and that the impugned order is not sustainable under the law.
4. Mr. Shah Khan, learned advocate appearing on behalf of the respondents argued that sale agreement is bogus, plot is situated in katchi abadi, it is Government land, complainant had lodged F.I.R., he also filed Civil Suit and lastly field complaint against the respondents under the provisions of the Illegal Dispossession Act, 2005, with intention to harass the respondents. He has argued that respondents are not land grabbers and the provisions of the Illegal Dispossession Act, 2005, are not applicable to the respondents.
5. Mr. Abrar Ali Khichi, learned Assistant Prosecutor General Sindh, argued that complainant has already filed Civil Suit, which his pending before the competent Court of law and attempt of the complainant to convert the civil litigation to the criminal case is unlawful. He has argued that respondents have no credentials or antecedents of being property grabbers and supported the impugned order.
6. After hearing the learned counsel and
going through the documents appended with the case it has been noticed that complainant
has already filed Civil Suit bearing No.639/2010 for
permanent injunction against the present respondents in respect of the subject
property and lodged F.I.R. against respondents. 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, 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. 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 Dr. Khalid Ahmed to establish that respondents 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 Dr. Khalid Ahmed has 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 in order
to extract concessions from them. Such utilization of the criminal law and
process by applicant Dr. Khalid
Ahmed 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 revision application is dismissed.
JUDGE
Gulsher/PA