1. ' ARSHAD NOOR KHAN, J.---This Criminal Revision application under section 439, Cr.P.C. Read with section 561-A, Cr.P.C. Has been filed by the applicant against the order passed by the learned 1st.
2. Additional Sessions Judge, Karachi Central dated 1-12-2007, whereby the direct complaint filed by the applicant under sections 3 and 4 of the Illegal Dispossession Act, 2005, hereinafter shall be referred to the Act, 2005, for ejectment of respondent was dismissed.
3. ' The facts as stated in the direct complaint are that the complainant is the bona fide purchaser of Flat No, 89 (New No,34) ad-measuring 820 sq. Ft. Situated on 4th floor of Ali Doulat Square Block-G North Nazimabad. Karachi, which he, rented out to one of his relatives namely Shabbir Hussain on 10-2-2005 and executed such tenancy agreement. It is further stated in the complaint that the complainant, earlier filed suit for permanent injunction in the Court of 1st. Senior Civil Judge, Karachi Central, wherein the judgment and decree in his favour vas passed on 31-1-2006. On 8-4- 2007, the respondent by taking the ,advantage of Sunday being weekly holiday, illegally entered in the property where the complainant was negotiating with his tenant for vacation from the said property, the respondent No, 1 along with respondent No,2 and his family coupled with six un-known persons forcibly entered in his flat by using abusive language and started humiliating and threatening them and they forcibly occupied the said flat. It is further stated in the complaint that the complainant showed the order passed by the civil Court, operating in his favour, to the respondents Nos.1 and 2 but they did not listen, meanwhile the police also reached there and the respondents Nos.1 and 2 were arrested by the police party, wife of respondent No,1 is still staying illegally and unauthorlisedly in the said premises. The respondent No,1 continuously threatened complainant for dire consequences, as such, he filed application before the TPO seeking therein protection against the respondents. It is further stated in the complaint that on 12-4-2007, the complainant initiated complaint proceeding against the respondents before the Civil Court. It is further stated in the complaint that on 12-4-2007 at about 5-00 p.m., the respondent No,2 with the help of respondent No, 1 after cutting the iron grills and locks, forcibly entered in the said property and dispossessed the tenant of the applicant, as such, the act of the respondents is illegal and is fully covered within the provisions of Act, 2005, as such, the present complaint was filed before the learned lower Court. The learned lower Court also called the report from the S.H.O., after holding inquiry, submitted report stating therein that the flat in question originally belongs to one Aleemuddin, who expired leaving behind him amongst other legal heirs, one Ghulam Nabi Qureshi who executed sub power of attorney in favour of the complainant. The learned trial Court after hearing of the learned counsel for the parties and appraisal of the whole material available before her, dismissed the complaint, hence the present revision application.
4. ' I have heard Mr. Tariq M. Khawaja, 'advocate for the applicant and Ms. Kauser Naz Naqvi, advocate for the State and respondent No,2 in person.
5. ' The learned counsel for the applicant vehemently contended' that the applicant purchased the said flat from one Ghulam Nabi Qureshi and said Ghulam Nabi Qureshi executed such receipt of payment amounting to Rs,52,000 on 4-6-2001 and a photocopy of the receipt issued by the Sub- Registrar for receipt of certain document and has vehemently contended that these documents fully show that the applicant was lawful owner of the property in question and the said property was rented out by the applicant to tenant Shabbir Hussain, who has been evicted illegally by respondents on 12-4-2007. According to him, the act of the respondents is illegal and is fully covered under the provisions of Act, 2005. He further contended that though the documents relating to ownership have not been executed. Ghulam Nabi Qureshi has executed power of attorney in favour of the applicant and on the basis of the said power of attorney, the possession of the flat was handed over to him by the said Ghulam Nabi Qureshi, therefore, the respondents may be evicted from the property in question and the learned lower Court was not justified in dismissing the complaint filed by the applicant.
6. ' Ms. Kausar Naz Naqvi, advocate for the State supported the impugned order.
7. ' The respondent No,2 along with his wife Mst. Rubina is also present and has contended that the property has been rented out to his wife by landlord and such rent agreement has been executed in between them and the applicant is not the owner of the property in question nor they have evicted him from the property in question and the present complaint has been filed for certain ulterior motives.
8. ' I have considered the arguments advanced on behalf of the parties and have gone through the material available before me. Admittedly, the applicant is claiming the ownership of the property in dispute on the basis of receipt, annexure-C and photocopy of receipt issued by the Sub-Registrar, annexure-I in support of his contention that he is the owner of the property in question. A perusal of the receipt, annexure-C shows that he paid Rs,52,000 being the remaining amount of sale consideration of Flat No, 89 (New No, 34), 4th floor, Ali Daulat Square. Block-G, North Nazimabad, Karachi to Ghulam Nabi Qureshi, resident of Gharibabad Nawabshah as well as a perusal of the receipt issued by the Sub-Registrar, Nawabshah annexure-I shows that the fee amounting to Rs, 100 has been deposited for registration of certain power of attorney on 4-6-2001. The said receipt annexure-C in any way does not show that the said Ghulam Nabi Qureshi is the exclusive owner of the property to create charge over the said property, whereas, admittedly the property belongs to the father of the said Ghulam Nabi Qureshi, who has expired and after his expiry, all of his L.Rs, have legitimate share in the said property. Similarly, the photocopy of receipt, annexure-I also does not speak about the title of the applicant over the property in dispute. Apart from these documents, no other document has been produced by the applicant to prove his ownership over the property in dispute.
9. ' Learned counsel for the applicant has been repeatedly asked to point out any other document of the evidence to show that the applicant is the owner of the property or lawful occupier of the property in question in view of sections 2(b), 3(1) as well as preamble to Illegal Dispossession Act, 2005, apart from receipt annexures-C and I but the learned counsel for the applicant was unable to point out any other document to show the lawful ownership of the applicant or lawful possession over the property in dispute. The applicant has also failed to produce any evidence to show that the said Ghulam Nabi Qureshi inducted him in possession of the property in dispute after execution of receipt, annexure-C as receipt annexure 'C' is also completely silent about handing over possession of the flat to him, as such, it is inobscure that the applicant was in possession of the property in dispute through tenant Shank Hussain, the applicant in para. 2 of his complaint has clearly admitted that he rented out the said flat to one of his relatives, namely Shabbir Hussain vide tenancy agreement dated 10-2-2005 but even the affidavit of this Shabbir Hussain,. Who admittedly is the relative of the applicant has not been filed in support of the direct complaint to show that he was lastly in possession of the property in dispute and he was forcibly evicted by the respondents from the said premises. In absence of such important evidence of this witness, who allegedly was directly affected with the alleged act of the respondents, the claim of the complainant is without any substance, which also adversely reflects on his claim of possession over the property in dispute through his tenant.
10. ' The applicant in his paras.Nos.4 and 11 of the complaint has stated that the wife of the respondent No,2 is residing in the said flat. Both paras of the direct complaint are usefully quoted herein below for the sake of convenience:-- "4. That on 8-4-2007 the respondents by taking advantage of Sunday Holiday rushed/assaulted over the suit property and while the plaintiff was sitting inside the suit property and negotiating with his tenant for vacation of suit property, the respondent No,1 along with respondent No,2 his family and 6 unknown persons entered forcibly in the suit property by using abusive language and start threatening/humiliation and harassing the plaintiff and his tenant and his family and forcibly try to dispossess the plaintiff as well as his tenant and his family from the suit property and thereafter occupy one room of the suit property.
11. That the wife of respondent No,2 who is inducted in the suit property by the respondent No,1 and still there due to non availability of lady searcher be expelled from the suit property which caused great disturbance for the applicant and being lady might create problems by levelling any false allegation over any male person of the applicant tenant."
11. ' From the perusal of Paras. 4 and 11 of the complaint itself, it is abundantly clear that the respondents were immediately evicted by the police from the property in dispute but the wife of the respondent No,2 is still residing there but surprisingly the wife of the respondent No,2 who allegedly is in possession of the property in dispute has not been impleaded as respondent in the direct complaint before the learned lower Court which is a grave illegality in the complaint filed by the applicant.
12. ' From the contentions advanced by the learned counsel for the applicant, the respondent as well as from thg contents of the inquiry report submitted by the S.H.O., it appears that there is a dispute over the property in question amongst the parties and presently neither the applicant nor the respondents are the owners of the property in question and it is also not clear that after the death of deceased Aleemuddin, the flat in question was mutated in the name of his L.Rs,, as such the dispute seems to be a dispute of civil nature, wherein thorough evidence is required to be recorded before the competent Court to resolve the controversy in between the parties and on this score also, the complaint filed by the applicant was not maintainable.
13. The learned counsel for the applicant has vehemently contended that he being the attorney of the Ghulam Nabi Qureshi was competent to retain the possession of the flat in question and he has also filed the present complaint on behalf of the said Ghulam Nabi Qureshi but when query was made to him by the Court to show any law which empowers an attorney to proceed with the criminal case on behalf of the complainant or the accused but he completely failed to point out any law to show that an attorney can prosecute any person on behalf of the attorney. In my humble opinion also in criminal administration of justice, a criminal lis or complaint could not be agitated or defended through the attorney.
14. ' After appraisal of the whole evidence available on record, I am of the firm opinion that the applicant is not the owner of the property in question nor his possession over the said premises has been established through any cogent evidence or that he rented out the said premises to his relative Shabbir Hussain and in absence of any evidence or the affidavit from Shabbir Hussain, the claim of the applicant could not be acceded. The controversy in between the parties seems to be a dispute of civil nature for which the parties may approach to the civil Court, if so advised.
15. ' The learned lower Court rightly dismissed the direct complaint after appraisal of whole material available before her and I do not find any justification to interfere with the order passed by the learned lower Court. The present Cr. Revision application has, therefore no merit and the same is hereby dismissed summarily.