1. ' MUHAMMAD AFZAL SOOMRO, C.J.---By this order I propose to dispose of above Criminal Revision Application filed by the applicant Mst. Sharmila Farooqui against the order, dated 14-11-2007 passed by the learned 1st Additional Sessions Judge, Karachi South in Criminal Miscellaneous Application No,110 of 2007, whereby he dismissed the complaint made by the applicant under the Illegal Dispossession Act, 2005 (Act XI of 2005).
2. ' Brief facts of the case are that father of applicant namely Usman Farooqi purchased a plot bearing No,D-12 Block 2 Scheme No,5 Clifton, Karachi from KDA by virtue of indenture of lease, dated 7-9-1982 duly registered in his name in the office of the Sub-Registrar. It has been mentioned that the said plot remained in physical possession of Usman Farooqui till 5th December, 1996; on which date he was arrested by the Federal Investigation Agency (F.I.A) in certain criminal cases registered against him thus he remained in custody till 25-12-2003. During said period, the applicant being the daughter and the only child of Usman Farooqui, being an authorized person was looking after and managing the said plot till January, 2006.
3. ' It has been alleged in the complaint that in the last week of January, 2006, when she visited the said plot she noticed that Abdul Hafeez and his brother Mushtaque along with their associates have taken illegal possession of the plot by way of land grabbing and occupied the same. The applicant asked these persons to vacate the plot but they become offensive and refused to hand over the possession of said plot to the applicant as such she moved application to KBCA for redressal of her grievance. It has also been alleged that on her further probe, it transpired that Abdul Hafeez and his associates have fabricated fake and unregistered documents of the said plot and as such took illegal possession on the basis of such fake documents which did not bear the signatures of applicant's father. The applicant being constrained filed a complaint under section 3 of Illegal Dispossession Act, 2005 before the learned Sessions Judge, South Karachi. The learned Judge was on leave on 22-2-2006, as such the matter was placed before the Incharge Sessions Judge South Karachi, who instead of referring the matter to the concerned S.H.O. For enquiry as contemplated under section 5(1) of Illegal Dispossession Act, 2005 also ordered to issue a notice to the proposed accused as such the proposed accused in a complaint case, before the taking of cognizance appeared and filed their written objections which were placed on the retard of the file.
4. The complaint was then transferred to the 1st Additional Sessions Judge South, Karachi who passed the impugned order, dated 14-11-2007, hence the applicant is impugning the said order through the instant Revision Application.
5. ' In the present Revision Application, only the State has been made as a respondent, however, when the matter came up for hearing, Mr. Amir Mansoob Qureshi, Advocate also appeared and prayed that although his clients i,e, the proposed accused have not been made a party in this Revision Application, but it would be necessary that his clients' viewpoint may also be heard before deciding the revision application, to which the learned counsel for the applicant raised serious objections and submitted that in a complaint case, unless the cognizance is taken, the proposed accused have no legal right to be heard having no locus standi. However, upon stressing of Mr. Amir Mansoob Qureshi and in the interests of justice, both the parties were directed to satisfy the Court regarding the locus standi of the proposed accused in a complaint case before the cognizance is taken. As such, the learned counsel for the proposed accused filed his written objections.
6. ' It has been contended by the learned counsel for the applicant that as per the Preliminary objection raised by him, the proposed accused has no locus standi in a complaint case until and unless the Court 'takes cognizance of the case. On this point learned counsel has relied upon a case reported as Riaz Ahmed v. The Additional Sessions Judge Gujrat and another (1995 PCr.LJ 14), Mushtaque Ahmed v. Muhammad Saleem and 2 others (1995 PCr.LJ 1900)' and Azmat Bibi and another v. Asifa Riaz and 3 others (PLD 2002 SC 687). It has further been contended by the learned counsel that the impugned order is based on a judgment reported as Lt. Col. (Ret) Tariq Latif v. Mst.
7. Jamila Sultana and another 2006 PCr.LJ 476 in which the complaint was dismissed on the ground that the statement of the complainant was not recorded on oath and moreover, an attorney or an authorized person has no legal right to file a complaint. According to the learned counsel any person can file a complaint who is conversant with the facts of the case in order to bring the law into motion. On this plea the learned counsel has relied upon a case reported as Jassumal and others v. The State and another (PLD 1962 (W.P.) Karachi 326). It has also been contended by the learned counsel, that the applicant is only child of Usman Farooqui, who was in possession and managing the plot in question and the documents filed by the learned counsel for the proposed accused are first of all not registered, secondly the Agreement to sell does not contain any date and moreover none of the documents if presumed to be genuine do not show either the applicant or her mother Mst. Anisa as witness, although it is mentioned in the legal objections that the applicant had taken the amount, which was given in their presence. The learned counsel has averred that in a Sale Agreement a specific time to perform the sale/contract is always mentioned, whereas in the agreement to sell produced by the counsel for the proposed accused, there is no specific period for performing the sale agreement is mentioned, as such all the documents relied upon by counsel for proposed accused have no force. Mr. Hashmi further averred that there is no bar on criminal case where the civil suit in relation to the same dispute is also pending. In this connection learned counsel has relied upon the cases reported as Syed Muhammad Ahmed v. The State (1972 SCMR 85), Sajjad Hussain v. The State (PLD 1997 Karachi 165), Mst. Nasreen Bibi v. Sub- Registrar/M.I.C. Model Town, Lahore 2000 YLR 47 and Haji Muhammad Ashiq v. The State and another (2006 MLD 491).
8. ' Finally, the learned counsel for the applicant submitted that the present case is under the Illegal Dispossession Act, 2005 and the learned Trial Court should have proceeded only on the basis of the Enquiry Report submitted by the concerned police and according to the said report a cognizable offence is made out. In view of the above legal as well as factual position, learned counsel prayed that the case may be remanded for trial on merits couple with the enquiry report of police.
9. ' Conversely, Mr. Aamir Mansoob Qureshi, learned counsel of the proposed accused argued that according to the principles of natural justice both the parties are to be heard and then an order of definite opinion is to be passed. He has further agreed that in the light of the Civil Suit pending before this Court, the criminal proceedings cannot be initiated. In support of his arguments he has relied upon the cases reported as Mirza Shaukat Baig and others v. The State (PLD 2005 SC 530), Captain S.M, Aslam v. The State (PLD 2006 Karachi 221), Noor Zada v. Muhammad Khalid and 6 others (2007 PCr.LJ 891) and Hafiz Muhammad Siddiqui Anwar v. Faisalabad Development Authority and others (2007 SCMR 1126).
10. ' Learned counsel for the proposed accused has basically emphasized his arguments on the ground that an attorney has no right to file a complaint. According to the learned counsel Mst.
11. Sharmila Farooqui, the present applicant is not an authorized person as such she cannot even file the instant Revision Application. As per the learned counsel for the proposed accused the provisions of Illegal Dispossession Act, 2005 are not applicable to the present proceedings and according to him his clients are bona fide purchasers of the plot in question, therefore he prayed that the Revision Application be dismissed.
12. ' Mr. Abdul Jabar Lakho the learned Assistant Advocate General, adopted the arguments of Mr. Amir Mansoor Qureshi, Advocate. However he added that the proceedings under the Illegal Dispossession Act, 2005 are Quasi-Judicial in nature and since the word "may" is written in the provision of section 5(1) of the said Act, as such it is not necessary for the Trial Court to call for the Enquiry Report.
13. ' I have given my anxious consideration to the arguments advanced by the learned counsel for the respective parties and have gone through the record, particularly the Enquiry Report. I am of the firmed view that the proposed accused have no locus standi in a criminal complaint unless the Trial Court takes cognizance of the case. In such view I am fortified by the judgment of the Hon'ble apex Court reported in PLD 2002 SC 687 (Supra), whereby the Hon'ble Supreme Court was of the view that the person complained against has no right of participation until cognizance of the matter is taken. As such the issuance of notice to the accused by the learned Trial Court was out of boundaries settled in a complaint case. As far as the issue of the applicant being an authorized person on behalf of her father to file a complaint is concerned, suffice it to say, that it is a settled principle of law as laid down in PLD 1962 Karachi 326 (supra), that. "Every member of the public has a right to set the law in motion by complaint, whether he is B himself a witness of the facts which prima facie constitute an offence or not as such there is no embargo for any person to file a complaint."
14. ' The basic and foremost question in hand is that under the Illegal Dispossession Act, how the Trial Court has to proceed. Such reply is mandated by section 5 of the said Act in which the entire procedure for Enquiry and Trial is clearly mentioned. As such, the learned Trial Court should have adopted the procedure as envisaged in section 5 of the Act. Moreover, all the documents relied upon by the proposed accused are unregistered. Thus the case has to proceed on the Enquiry Report submitted by the police.
15. ' For the foregoing reasons, I allow the present Revision Application, set aside the impugned order.
16. Consequently the case is remanded back to the Trial Court with direction to proceed with the matter by adopting the procedure as envisaged in section 5 of the Illegal Dispossession Act, 2005 and conduct the trial according to law.
17. ' Criminal Revision Application No,137 of 2007 stands disposed of.