1. ' ZAFFAR AHMED KHAN SHERWANI, J.---This revision application is directed under sections 435, 439, Cr.P.C. Whereby an order passed by the learned IInd. Additional Sessions Judge, Karachi, Central, dated 12-7-2008 under section 3 of the Illegal Dispossession Act, 2005 has been impugned.
2. ' The brief facts leading to this revision are that the above applicant brought the above complaint under section 3 (2) of the Illegal Dispossession Act, 2005 (Act of 2005) pleading therein that he had purchased a House bearing No,L-831-Sector 5-B/2, North Karachi ( the house in question against a total sale consideration of Rs,300,000 and obtained possession thereof, where after he had been living there along with his family members. The sale transaction of the house was completed by way of Sale Agreement between the parties dated 5-1-2005 consequently, a General Power of Attorney was executed by the respondent No.1 in his favour which was registered as per particulars mentioned in the petition. It was also alleged that the respondent surreptitiously re-sold the same house to a third party and the some unscrupulous persons started threatening him to vacate the house in question, therefore, he brought a Suit bearing No,390 of 2007 against the respondent No.1 which was decreed on 5-9-2007 but the respondent No,1 did not refrain and remained threatening the applicant by sending those unscrupulous persons. Such complaint was also sent to PS Khawaja Ajmair Nagri on 10-9-2007 through TCS but to no avail. Ultimately, the applicant was dispossessed on 30-11-2007 by the respondents and took away household articles worth Rs,10,00,000 therefore, such criminal complaint under section 3 (2) of the Act, 2005 was filed before the learned trial Court.
3. A report from the police concerned was called for. As per such report also the claim of the complainant was verified against which the respondents also filed their objections. The learned trial Court then appointed a Commissioner who, too, submitted his report in favour of the applicant, however, the learned trial court after hearing the parties dismissed the complaint vide the impugned order holding that the applicant should approach the civil Court to take possession of the house in question because he failed to show his lawful ownership over it, hence this revision.
4. ' I have heard the learned counsel for the applicant and the State's counsel and perused the record very carefully.
5. ' It was averred on behalf of the applicant that the learned trial Court has failed to appreciate the fact that the contents of his complaint had been verified vide the report of the S.H.O. As well as the Commissioner that the applicant was illegally dispossessed from the house in question but it dismissed the complaint without any cogent reason vide the impugned order which is required to be set aside. He has prayed that the petition may be remanded to the learned trial. Court for disposal according to law.
6. ' On the other hand the learned State Counsel opposed the above arguments and contended that the learned trial Court has passed the impugned order according to law, therefore, the same cannot be assail by way of this revision under sections 439 and 435, P.P.C. The private respondents failed to appear in spite of service of the notice.
7. ' I have carefully considered the submission of the learned counsel for the parties and perused the record.
8. ' The perusal of the impugned order indicates that the learned Additional Sessions Judge has dismissed the complaint on more than one grounds. Firstly, that after dispossession of the applicant from the house in question he did not immediately report the matter to the police station, secondly, the alleged dispossession of the applicant is out of purview of the Act, 2005 as the applicant was not the lawful owner of the house in question, thirdly he could not file a civil suit for the same remedy and lastly that the respondent is neither land grabber nor a member of the land mafia, therefore, no action could be taken under section 3(2) of the Act, 2005. If the facts of this case are considered carefully in the light of the provisions of the Act of 2005 one can reach to the conclusion that none of the grounds of dismissal of the complaint as mentioned above has been substantiated by the learned trial Court. The applicant had specifically alleged in his complaint that he had been dispossessed illegally from the house in question on 30-11-2007 by the respondent who also took possession of his house hold articles of Rs,10,00,000. As per his claim possession over the house in question was on account of a sale agreement dated 5-1-2005 between him and the respondent No,1 wherein it has been mentioned in paragraph 2 that the possession of the said house is delivered along with all the original documents of title pertaining to the said property to the applicant, therefore, the applicant A was in its lawful possession. The said respondent had also executed a general power of attorney in his favour which was duly registered on 17-1-2005. As per copy of the judgment of the second Senior Civil Judge in Suit No,390/07 and decree therein dated 5-9-2007 the respondent No,1 was restrained from dispossessing the applicant from the house in question. Similarly, if the report of the 5.11.
0. Of PS Khawaja Ajmar Nagri called for by the learned Additional Sessions Judge is perused carefully it would be clear that when the applicant had gone to interior Sindh on 25-11-2007, the respondent No, 1 had taken illegal possession of the house in question. All these facts show that the petitioner had shown a prima facie case before the learned Additional Sessions Judge which was sufficient to take cognizance in the matter under the Act of A 2005. The view of the learned trial Court that the applicant should have filed a suit for his redressal in place of filing the complainant is also erroneous as the two remedies can be availed of by the applicant simultaneously if he is so advised inasmuch as it is well settled that there cannot be any legal bar to maintain both the actions simultaneously.
9. With reference to the finding of the learned Additional Sessions Judge that since the respondent did not belong to any Qabza Group or Land Mafia, therefore, no action could be taken under the Act of 2005 is again untenable in view of the law laid down by the Honourable Supreme Court in the case of Rahim Tahir v. Ahmed Jan (PLD 2007 SC 423) in which it has been held that the provision of Act of 2005 would be applicable in all cases of illegal and unauthorized dispossession except those cases which were pending adjudication before the other forum at the time of its promulgation. The cases of Malik Muhammad Naeem Awan v. Malik Aleem Majeed and 5 others (PLD 2008 Lahore 358) and Iftikhar Ahmed v. Zulfiqar Ali and .3 others (PLD 2008 Lahore 59) can also be relied upon in support of the above findings.
10. The upshot of the above discussion is that the impugned order passed by the learned Additional Sessions Judge is illegal and, therefore, requires to be set aside, hence the revision application is allowed as prayed and the Criminal Petition No,408/07 is remanded to the Additional Sessions Judge, Karachi, Central for its disposal according to law on merits.