RAJA MUHAMMAD SHAFQAT KHAN ABBASI, J. The petitioners namely, Haji Taj Din and Liaqat A.I Mughal sons of Ch. Muhammad Ismail, by filing this Constitutional' petition have impugned the order dated 3.2.2009 passed by the learned Additional Sessions Judge, Lahore (respondent No. 2), whereby he while admitting the complaint, filed by Sh. Mujib Ullah son of Mushtaq Ahmad (respondent No. 1) under Sections 3/4 of the Illegal Dispossession Act, 2005 (hereinafter to be called as the Act, 2005), for regular hearing has ;issued notice to them.
2. Precisely the facts giving rise to instant petition are that petitioners being owner of the property bearing No. E-398-8-B, situate at Gulistan Colony, near Ghazi Road, Lahore had leased out the same to respondent No. 1 in the year 2006 and it was agreed between the parties vide Lease Agreement dated 9.9.2006 that respondent No. 1 will' pay rent of the said property at the rate of Rs.
16,500/- per Month; feeling apprehension of his dispossession, respondent No. 1 had filed a suit for permanent injunction against the petitioners on 29.9.2006, wherein the petitioners gost recorded a statement through their counsel that respondent No. 1 will not be dispossessed except in due course of law; on the, basis of said statement, respondent No. 1 had withdrawn the said civil suit on 7.4.2007; thereafter petitioner No. 1 filed an ejectment petition against respondent No. 1 before the Rent Controller on 12.4.2007 alleging therein that respondent No. 1 has defaulted in payment of the rent and the said petition is still pending and next date of hearing is 30.3.2009; version of the complainant (respondent No. 1) as mentioned in the complaint is that the petitioners along their companions duly equipped with bulldozers trespassed into the premises in dispute on 6.11.2008 at 2.30 a.m. (midnight) and after demolishing the superstructure took away the belongings to respondent No. 1 by tying his employee, namely, Aleem Mahmood by means of a tractor trolley; in this way, the petitioners took physical., possession of the disputed premises; the petitioners then filed a civil suit for permanent injunction on 8.11.2008 with the prayer that they may not be dispossessed from the properly in dispute illegally by respondent No. 1/tenant, in which status-quo was granted on the same date and the suit is still pending; thereafter case F.I.R. No. 1457, dated 18.11.2008 with Police Station Factory Area, Lahore under Sections 380, 427, 147, 149, P.P.C. Was registered at the instance of respondent No. 1/tenant; he had also filed a complaint under Sections 3/4 of the Act, 2005 alongwith an application for grant of interim possession on 17.12.2008, wherein cursory statement of the complainant was recorded on 23.12.2008 and after getting report from concerned S.H.O. The learned Trial Judge passed the impugned order dated 3.2.2009 to the following effect:- "Keeping in view the contents of the petition, cursory statement of the complainant as well as report submitted by the S.H.O. Prima facie it reveals that the petitioner was in lawful possession of the property in dispute as tenant and as per contention of learned counsel for the complainant the complainant has been dispossessed in an illegal manner and keeping in view the above-referred case-law prima facie the instant complainant is liable to be proceeded, hence, the same is admitted for regular hearing. Let notice be issued to the respondents for 12.2.2009."
Subsequently on 12.2.2009, the petitioners were ordered to submit their bail bonds in the sum of Rs.
50,000/-each with one surety in the like amount; respondent No. 1 had also filed contempt proceedings before the Civil Court against the petitioner for violating the order dated 7.4.2007 passed by the Civil Court.
3. , Learned counsel for the petitioners contends that in the midnight of 6.11.2008, respondent No. 1/tenant alongwith his companion came into the premises in dispute and after demolishing the shed and causing damaging to the tune of Rs. 5,00,000/-, abandoned the same; that the petitioners took physical possession of the said premises on the same day at 7.30 am.; that the matter was reported to the police, but the grievance of the petitioners was not attended to; whereupon petitioners/owners being aggrieved of the act of the police for not registering the case for the aforesaid occurrence, filed an application under Sections 22-A & 22-B, Cr.P.C. On 13.11.2008, in which the learned Additional Sessions Judge/Ex-officio Justice of peace, Lahore, on 24.11.2008 directed the concerned S.H.O. To record statement of the petitioner No. 1 and if any cognizance offence is made out, then proceed strictly in accordance with law.
The learned counsel further contends that the impugned order dated 3.2.2009 has been passed without .Application of independent judicial ,mind and the same is non-speaking; that the complaint is not competent in presence of the pendency of civil suit filed by the petitioners/owners and the contempt petition and the F.I.R. No. 1457, dated 18.11.2008, registered at the instance of respondent No. 1/tenant; that the impugned order amounts to vexing the petitioners twice for the same offence, which is also hit by the principle of double jeopardy. The learned counsel further contends that the complaint did not constitute any offence within the purview of the Act, 2005, for the reasons, firstly, present dispute is between the landlord and tenant; secondly, there are no credentials or antecedents of the petitioners being members of Qabza Group; and thirdly, only Civil Court or Rent Controller can take notice of the occurrence, hence, the present proceedings are not competent. Reliance is placed on the case of Zahoor Ahmad and 5 others v. The State and 3 others (P.L.D. 2001 Lahore 231).
4. Conversely learned counsel for respondent No. 1 contends the learned Trial Court is interim in nature and not being final one, the same cannot be brought under challenge through the Constitutional petition; that there is no bar in continuation of criminal as well as civil proceedings side by side and that the learned Trial Judge after going through the contents of the complaint, examining the cursory statement of respondent No. 1 and report of the S.H.O., came to the conclusion that prima facie dispossession has taken place from the lawful occupation in an unlawful manner and has rightly admitted the complaint for further proceedings.
5. I have heard learned counsel for the parties at length and have also gone through the record available on the file.
6. Several remedies can be available under the Civil or Criminal law at the same time. A person who has been dispossessed can have recourse to any remedy, such as, filing of civil suit under Section 9 of the Specific. Relief Act, which is summary procedure, filing of civil suit for possession under Civil Procedure Code, criminal proceedings under Sections 145, 146, Cr.P.C., initiation of criminal prosecution under Section 448, P.P.C., whereas the Act, 2005 has been specially enacted to discourage the land grabbers- and to protect right of owner and lawful occupant against illegal and unauthorized occupation. Under this Act, speedy, effective and easy relief has been provided to the owner as well as the lawful occupant of the property. If the law provides more than one remedy to the aggrieved person, then it is his choice to avail any one of them or all other remedies.
No bar or restriction can be placed upon the claimant or the aggrieved person to approach different forums at the same time to avail respective remedies. Hence, the contention of the petitioners regarding initiation of present proceedings under the Act, 2005 during pendency of contempt proceedings in a Civil Court, or criminal prosecution in case F.1.R. No. 1457/2008 or ejectment proceedings before the Rent Controller does not have any force. Each forum can proceed at the same time accordingly purely on merits of their own facts.
7. I do not agree with the contention of the petitioners regarding non-maintainability or competency of the present proceedings under the Act, 2005 on the ground that' the petitioners have no link or antecedents with Qabza Mafia. In the presence of ejectment proceedings and civil suit etc., there is no bar on the continuation of the complainant. The Act, 2005 will apply to all the cases of illegal occupation without any distinction. Merely filing of civil suit or contempt .Proceedings subsequent to the "act of dispossession" will have no much significance or consequence to protect unauthorized occupation. I am fortified by the judgments in case Rahim Tahir v. Ahmad Khan & 2 others (P.L.D. 2007 S.C. 423) and Malik Muhammad Naeem Awan v. Malik Aleem Majid and 5 others (P.L.D. 2008. Lahore 358) and lftikhar Ahmad v. Zulfiqar A.I and 3 others (Pi L.D. 2008 Lahore 59).
It is now well-settled that civil and criminal cases can be proceeded side by side. There is no bar on the initiation of criminal proceedings in presence of civil suit. Reliance can advantageously be made to the cases of Muhammad Shafi v. D.S.P. And others (P.L.D. 1992 Lahore 178), Sheikh Ahmad v Sh. Muhammad Younas (1971 P.Cr.L.J. 331), Rehmat Ullah v. Abdul Aziz (1974 P.Cr.L.J. 54), Malik Muhammad Naeem Awan v. Malik Aleem Majid and 5 others (P.L.D. 2008 Lahore 358) and Mrs. Azra Israr v. Inspector General of Police Punjab and others (P.L.D.
2003 Lahore 1). However, normally criminal proceedings are not postponed till decision of civil litigation but where criminal liability is totally dependable upon the result of civil litigation then in such situation, the Trial Court can stay its hands till decision of civil dispute. Reliance can advantageously be made to the case of Muhammad Akbar v. The State (P.L.D. 1968 S.C. 281) and A.
Habib. Ahmad v. M.K.A. Scott Christian and 5 others (P.L.D. 1992 S.C. 353): Present proceedings relate to the "act of dispossession", pending before the Trial Court are altogether different and same can proceed despite other proceedings pending in different forums, which cannot be stopped or stayed' Reliance is placed on the cases of Syed Muhammad Ahmad v. The State (1972 S.C.M.R. 85) and Khuda Bakhsh v. The State (1995 S.C.M.R. 1621).
8. In the present case, admittedly respondent No. 1/tenant was in possession of the premises regarding which petitioner No. 1 had given undertaking in the Civil Court on 7.4.2007 to the effect that respondent No. 1/tenant would not be dispossessed without due process of law. Although petitioner No. 1/owner has his own version that how and under' what circumstances, he got the possession of the premises. I do not want to make any comment oh the respective versions of the parties at this stage, which might prejudice the case of either of the parties. The order impugned herein is only of an interim nature and has been passed by the Trial Court after considering the material available on record. Contents of the complaint, summary of preliminary evidence and other documents/order of Court etc. Filed by respondent No. 1/tenant prima facie indicate that sufficient reason existed for the issuance of process to proceed with the trial. The petitioners will have the right to rebut the allegation even at the time of framing of the charge of under Sections 265-K or 249-A, Cr.P.C. They may avail the said remedy when the occasion arises. If may be observed that the Courts are bound to exercise discretion while issuing the process to the accused person named in the complaint with great care and caution. Reliance is placed on the case of Zeba Bakhtiar v. Arshad Sarni Khan and 5 others (1998 S.C.M.R. 922).
9. There is no illegality or infirmity in the impugned order calling for interference by this Court.
Accordingly, there being no merit in this petition, the same is dismissed. No-order as to costs.
10. Before parting with this order, I may observe here that the observations made hereinabove are tentative in nature and the Trial Court or any other Court shall not be influenced in any manner in this regard while dealing with the matters. .