AQEEL AHMED ABBASI, J.---Being aggrieved and dissatisfied by the order dated 15-1-2010 passed by the learned Additional Sessions Judge, Umerkot, in Special Case No,118 of 2009 whereby application under section 7 of Illegal Dispossession Act, 2005 filed by the respondent No,1 has been allowed and the present applicant has been directed to hand over the possession of the land to the respondent within 7 days, failing which S.P.O., Somaro, has been directed to put the respondent in possession under intimation to the Court. The applicant has filed the instant Criminal Revision Application under section 435 read with section 439, Cr. P.C.
2. Learned counsel for the applicant after having read the impugned order has criticized the same for having been passed without lawful authority. It is contended by the learned counsel that purported exercise of jurisdiction under section 7 of Illegal Dispossession Act, 2005 by the learned Additional Sessions Judge is misconceived in fact and law, as without resorting to section 4 of the Illegal Dispossession Act, 2005, whereby cognizance of a complaint is required to be taken by admitting such complaint, and only thereafter notice in terms of section 5(2) could have been issued to the respondent. Learned counsel submitted that in the instant case no such order of having taken cognizance and admitting the complaint for hearing in terms of section 4 of Illegal Dispossession Act, 2005 has been made. Learned counsel pointed out that notices under section 5 of Illegal Dispossession Act, 2005 were required to be issued before passing any further order on interlocutory application filed under section 7 of Illegal Dispossession Act, 2005. In support of his contention the learned counsel has placed reliance on the following judgment:-
(1) Habibullah and another v. The State and 9 others 2009 MLD 1162 R-1165
(2) Muhammad Akram and 9 others v. Muhammad Yousaf and another 2009 SCMR 1066 R-1069A
(3) Nabi Bux and 6 others v. Ghulam Muhammad and others PLD 2008 Karachi 518 R-521
(4) Shafi Muhammad v. The State and others PLD 2008 Karachi 480
(5) Ali Hussain v. Syed Ziauddin PLD 208 Quetta 27
(6) Rahim Tahir v. Ahmed Jan and 2 others PLD 2007 SC 423
(7) Ghulam All and others v. Nasira Malik and others 2007 PCr.LJ 224
(8) Haji Sardar Khalid Saleem v. Muhammad Ashraf and others 2007 SCMR 1192.
3. It has been further argued that the respondent claimed to be the owner of subject land vide registered Sale Deed dated 10-12-2009, whereas it has been complained that on 5-12-2009 applicant along with others armed with deadly weapons forcibly dispossessed the respondent from such land. As per learned ',counsel the respondent No,1 was not the owner on 5-12-2009, hence provision of Illegal Dispossession Act, 2005 was not applicable in such case.
4. Conversely the learned counsel for the respondent vehemently opposed such contention of the counsel for the applicant. It has been stated that the respondent was in possession of the subject land, whereas substantial payment has already been made and the part payment was required to be made at the time of execution of the sale-deed. Learned counsel further stated that the civil litigation in respect of the same subject property between the parties is also pending. As per learned counsel the impugned order does not suffer from any illegality, therefore, does not require any interference by this Court in its revisional jurisdiction, which is restricted and has narrow scope.
As per learned counsel the respondent is the lawful owner of the subject land by virtue of a sale agreement and was in possession. As per learned counsel the sale agreement was executed on 25-3-2009 whereas possession of the subject property was given on 10-10-2009. Thereafter on 5- 12-2009 the respondent was forcibly dispossessed from such property by the applicant. He further pointed out that F.I.R. No,105 of 2009 was lodged to this effect and similarly a suit for specific performance bearing No,81 of 2009 has also been filed on 24-11-2009. In support of his contention, learned counsel for the respondent has placed reliance on the following judgments:---
(1) Nabi Bux and 6 others v. Ghulam Muhammad and others PLD 2008 Karachi 518.
(2) Jalal and 11 others v. Kapri Khan and another PLD 2008 Karachi 369.
(3) Rahim Tahir v. Ahmed Jan and 2 others PLD 2007 SC 423.
(4) Ghulam Ali and others v. Nasira Malik and others 2007 PCr.LJ Karachi 224.
(5) Nisar Ahmed v. The State 2009 PCr.LJ 2009 Karachi 9.
(6) Haji Sardar Khalid Saleem v. Muhammad Ashraf and others 2006 SCMR 1192.
(7) Muhammad Akram and 9 others v. Muhammad Yousuf and another 2009 SCMR 1066.
(8) Abdul Aziz and another v. Sharif and another Criminal Revision Application 79 of 2008 (unreported case).
5. I have heard both learned counsel and perused the record. The brief facts relevant for resolution of the controversy in terms of provision of Illegal Dispossession Act, 2005 as noted in the impugned order are that the respondent/complainant filed a complaint under Sections 3 and 4 along with applications under section 7 of Illegal Dispossession Act, 2005. As per facts disclosed in the complaint the respondent and his brother/cousin claimed to be the owner of agricultural land comprised Survey Nos.86, 87, 88, 89, 91, 105 to 109 and 126 admeasuring 169-19 Acres situated in Deh Kinjheji Tapo Teboi, Taluka Samaro, District Umerkot, which had been purchased by the complainant, his brother Dost Muhammad, Riaz Ahmed, Nadeem and cousins Ghulam Fareed, Ghulam Waheed and Naveed Ahmed in share with the complainant, and above persons claimed to have been in possession, occupation and use of such land. It was further claimed that such land was purchased by way of registered sale deed executed on 10-12-2009. Whereas, prior to such execution of sale-deed two sale agreements executed on 25-3-2009 and 10-10-2009 were executed and the amount in advance was paid by way of D.D. Cheques to the vendor Khaliquz Zaman, Samiuz Zaman, Mehrun Nisa through their attorney Syed Yousuf Hashmi sons and dauthers of Maseehuz Zaman and Mst. Rizwana @ Bashirun Nisa. It was further claimed that the land together with the standing crops was also handed over to the complainant and his brother on 10- 10-2009 as per agreement and which fact was also mentioned in the registered sale-deed. As per contents of the plaint, on 5-12-2009 the applicant along with other nominated accused persons duly armed with weapons came at the subject land and dispossessed the respondent/complainant from such land and took away 190 bags of chilies lying in the Khara through their trolley tractors after attempting to murder the kamdar namely Abdul Karim who was further criminally intimidated along with the haries and further robbed of the property, by the accused person. The incident was reported to the concerned Police Station who refused to register the F.I.R. Thereafter an application was made to concerned S.H.O., Samaro, who received the same and put his endorsement but expressed his inability to register the case on account of pressure from some MNA and MPA named in the complaint. The complainant appears to have approached the I.G. Of Police and D.I.G. Police on whose intervention one S.I.P. Abdul Saleem recorded the F.I.R.
No,105 of 2009. As per complainant though the F.I.R. Was registered but no arrest was made nor any action was taken by the Police against the persons nominated therein. It is further stated in the complaint that the accused Muhammad Ali filed a Suit No,81 of 2009 on 24-11-2009 before the Court of IInd Senior Civil Judge, Umerkot, against the vendors Khaliq-uz-Zaman and others for specific performance of a contract and permanent injunction on the basis of false and forged agreement to sell. Written statement was filed, challenging the maintainability of the suit in the Court of Ilnd Senior Civil Judge, Umerkot, who rejected the plaint on 8-12-2009. It is further alleged in the complaint that the applicant/accused persons in the active connivance of MNA and MPA nominated in the complaint are the land grabbers and have developed political enmity with the respondent/ complainant and have illegally dispossessed the complainant and occupied the land forcibly with the assistance of professional land grabbeRs, It is further stated that accused persons have taken away 190 bags of chillies as well as standing crop of chillies on 23 acres and tomatoes on one acre from the land of the respondent/complainant which has caused serious damages and losses in terms of Lacs of rupees.
6. Under these circumstances, it further appears that an application, under section 7 of Illegal Dispossession Act, 2005 was also filed by the respondent/complainant requesting for an interim order to protect further loss/damage to the complainant at the hands of the accused persons. The learned Additional Sessions Judge, Umerkot, issued notice of the application under section 7 of Illegal Dispossession Act, 2005 to the accused persons. Whereas, the accused Nos.1 to '7 put their appearance through their advocate and filed counter affidavit to the application under section- 7 of the Illegal Dispossession Act, 2005, wherein all the allegations were denied. Report was also called from concerned Police and D.D.O (Revenue) and the learned trial Court while deciding the effect of application under sections 6 and 7 appears to have taken cognizance of such report as stated in the impugned order. It further appears that the learned trial IInd Senior Civil Judge has considered all the documents and evidence produced before him during the proceedings as well as the case relied upon by the parties in this regard. Where after the learned Additional Judge has passed an order on application under section 7 in the following terms:-- "In view of the above facts and circumstances so also the law relied upon by the learned counsel for complainant I allow the application under section 7 of Illegal Dispossession Act, 2005 by directing the respondent/accused to hand over the possession of land in question to party within 7 days and S.P.O. Samaro, is to put the respondent under intimation to this Court."
6A. Before referring to the relevant provision of the Illegal Dispossession Act, 2005 and the case-law relied upon by the parties in this case, it is pertinent to observe that under the facts and circumstances of the case the respondent/complainant appears to have made out a prima facie case of having invoked the provision of Illegal Dispossession Act, 2005. The respondent/complainant has placed on record the relevant documents of title including the registered sale-deed in respect of the subject property, whereas no such document of title or any document showing possessionary rights in applicant/accused has been placed on record by the applicant. As regards pendency of suit in respect of subject property it has transpired that such suit has also been dismissed on account of maintainability in terms of Order VII, Rule 11, C.P.C. And there is no order/judgment showing any title or authorizing possession of the applicant/accused over the subject land. It is pertinent to observe that the scope of Illegal Dispossession Act, 2005 is different and distinguishable from other remedies including civil and criminal available to a party seeking entitlement and possession over the property/land. This Act provides an altogether alternate and efficacious remedy to the aggrieved party within a stipulated period with an intent to curb the land mafia and provide maximum relief to the aggrieved party.
' In my humbly view, pendency of civil suit against the party has no bar to such remedy as provided under Illegal Dispossession Act, 2005, however, cognizance can be taken when the Court is of the opinion that the dispute involves some integrate question of entitlement which may fall within the sole domain of civil Court. In the instant case admittedly the respondent/ complainant has produced the title documents along with the registered sale deed which not only create a legal presumption of ownership of the subject land in favour of respondent/complainant, but D also reflects upon the confirmation of possession of the respondent/ complainant over the subject land consequent to execution of the agreements produced before the trial Court by the respondent/ complainant. On the other hand the applicant/accused has not been able to produce any valid evidence or documents, creating any right or entitlement of the application/accused in the subject land, nor has been able to justify his possession over the subject land.
7. The preamble of Illegal Dispossession Act, 2005 reflects that instant law has been enacted to protect the lawful owner and occupier of E the immoveable property from their illegal and forcible dispossession by the land grabbers and further to discourage the unauthorized and illegal occupants. Section 2 of Illegal Dispossession Act, 2005 relates to definition and section 2 subsection (c) defines the occupier, which means the person who is in lawful possession of the property whereas section 2(d) defines owner, which means the person who actually owns the property at the time of its dispossession, otherwise than through the process of law. Similarly, section 3 of the Illegal Dispossession Act, 2005 provides that no one shall enter into or upon any property to dispossess, grab, control or occupy it without having any lawful authority to do so with the intention to dispossess, grab, control or occupy the property from an owner or occupier of such property. Section 4 of the Illegal Dispossession Act, 2005 gives jurisdiction to the Court of Session on a complaint to take cognizance of an offence punishable under this Act or in case of contravention of section 3 of Illegal Dispossession Act, 2005, cognizance is required to be taken by the Court of Session. Complaint is required to be filed by a person who is either the owner or the occupier of the property at the time of filing such complaint, on being dispossessed by the accused without due process of law. Illegal Dispossession Act, 2005 being special law, empowers the Court to conduct special investigation within the stipulated period and after receipt of the investigation report the Court is required to apply its mind as to whether proceed further with the matter under section 5(2) of the Illegal Dispossession Act, 2005 or not. Section 5 provides for investigation and procedure to be adopted by the Court of Session and further stipulates directions to the concerned police station to investigate and forward the same within 15 days or with the extended period to the Court.
If the Court after examining such investigation reaches to a conclusion that a prima facie case is made out for taking cognizance the Court thereafter is required to proceed with the trial from day to day and to decide the case within 6 days subject to extension of time on the basis of reasonable grounds in this regard. Section 6 of the Illegal Dispossession Act, 2005 authorizes the Court to pass an interim order of attachment of property till final decision of the case in case whether the Court is of the opinion that none of the persons was in possession of subject property immediately before the commission of offence. Similarly section 7 provides for interim relief by way of eviction of a person who, during the trial, is found to be in unlawful possession of the property with the direction to put the owner or occupier as the case may be in possession. Section 8 of the Illegal Dispossession Act, 2005 relates to delivery of the possession to owner or occupier on conclusion of the trial after conducting enquiry, recording evidence and giving its verdict to the fact as to whether the complainant being the owner or occupier of the property was illegally dispossessed from such property by the accused persons. Section 9 of the Illegal Dispossession Act, 2005 provides for application of Code of Criminal Procedure 1899 to the proceeding undertaken under this Act: however, the same is subject to general scheme of Illegal Dispossession Act, 2005 which has introduced special modes of procedure defined in section 5 of such Act. The cursory reference to the provisions of Illegal Dispossession Act, 2005 has been made in order to appreciate the actual scope and jurisdiction of Illegal Dispossession Act, 2005, which provides for independent, alternate, efficacious remedy to a complainant who, at the time of being dispossessed by the accused from such property, was the lawful owner of the subject property. A cognizance is required to be taken by the Sessions Court on a complaint for contravention of provision of section 3, special investigation, is required to be conducted from the concerned S.H.O. And another authority regarding complaint, where after, if cognizable case is made out in terms of Illegal Dispossession Act, 2005, the Court is required to proceed with the trial day to day as expeditiously as possible, and on conclusion of such trial is further required to pass final order, whereby delivery of possession of property is given to the owner, occupier and the land grabber is required to be punished if such offence is proved. In the case of Muhammad Akram and 9 others v. Muhammad Yousuf and another 2009 SCMR 1066, the Hon'ble Apex Court while dealing with the provisions of Illegal Dispossession Act, 2005 with particular reference to section 3 has observed that in order to constitute an offence under section 3(1) of the Illegal Dispossession Act, 2005 the complainant is to lodge and show before the Court as follows:-- "(i) that the complainant is the actual owner (or occupier i.e, in lawful possession) of the immovable property in question;
(ii) that the accused has entered into (or upon) the said property;
(iii) that the entry of the accused into (or upon) the said property is without any lawful authority;
(iv) that the accused has done so with the intention to dispossess (to grab or to control or to occupy) the complainant; ' The defence line for the accused can be:-
(1) that the complainant is not the actual owner of the property;
(2) that the entry of the accused into the property is not to dispossess the complainant;
(3) that the accused has the lawful authority to enter into the property;
(4) that the accused has no intention to dispossess the complainant.
' The law has made it clear that a person who is 'proved guilty shall not save him from the punishment for which he may be liable under any other law for the time being in force."
' In the case of Rahim Tahir v. Ahmed Jan and 2 others 2007 SC 423 the Hon'ble Apex Court has held as under:-- "Mere filing of the suit subsequent to the filing of the complaint on the basis of documents having no legal foundation, was of no consequence and significance to protect the illegal and unauthorized possession---Purpose of the said Act was to protect the right of possession of lawful owner or occupier and not perpetuate the possession of illegal occupants."
' In the case of Ghulam Ali' and others v. Nasir 2007 PCr.LJ 224, a Bench of Lahore High Court while examining the scope of sections 3 and 7 of the Illegal Dispossession Act, 2005 has held as under:- "The documents on the record clearly show that the said respondent is the owner of Khasra No,17/19 which is duly supported by the report submitted by the local police which shows that the respondent had been dispossessed from the land forcibly by the petitioners, Further it has been noticed that the petitioners have failed to establish any title in the disputed property whereas on the contrary the title of the property in question in favour of respondent No,1 is established as also her possession. Since the learned trial Court was fully competent to grant interim relief in terms of section 7 subsection (1) of the Illegal Dispossession Act, as such no illegality has been committed by the learned Court as prima facie the documents placed on the record and the report submitted by the local police supports the contentions made by respondent No,1 in the complaint. The learned counsel for the petitioners has not been able to point out any jurisdictional error committed by the learned Additional Sessions Judge by passing the order impugned. Even otherwise interim order passed by the Court cannot be challenged by invoking the constitutional jurisdiction of this Court as stated earlier. A profitable reference can be made to the case of Abdul Majeed v. Noor Muhammad and 2 others PLD 2006 Lah.
649."
8. In view of the facts of this case, examination of the relevant legal provision and the case law referred hereinabove, I am of the view that in the instant matter the learned Sessions Judge has rightly taken cognizance of the complaint filed under sections 3 and 4 of the Illegal Dispossession Act, 2005 by the respondent/complainant which was duly supported by the title document including registered sale deed and H documentary proof of possession of the respondent/complainant over the subject land. Accordingly directing investigation of the complaint from the concerned authority as stipulated in terms of section 5 of the Act and further examination of such report and documents produced by the parties, also appears to be in accordance with law. Similarly, any interim order, as visualized in terms of section 7, of the Illegal Dispossession Act, 2005 under the circumstances of this case also 'does not suffer from any illegality as the same was within the competence and direction of the learned Sessions Judge, which under the facts and circumstances, appears to have been rightly exercised in the instant case. The applicant/ accused has not been able to point out any factual error or illegality in the proceedings so far undertaken by the Sessions Court, particularly the impugned order, which is otherwise an interim order and is subject to I final decision by the learned Sessions Court in terms of section 8 of the Illegal Dispossession Act, 2005. Moreover, the applicant/accused has also failed to produce any evidence showing any prima facie entitlement or any legal justification of keeping the possession of the subject property.
9. In view of hereinabove facts, the instant Civil Revision having no merits is hereby dismissed with no order as to cost. It is clarified that observations made hereinabove are tentative in nature and the learned trial Court shall not be prejudiced by such observation and shall decide this case strictly on merits and on the basis of evidence available on record preferably within the period of one month.