1. ' SAJJAD ALI SHAH, J.---Through this Criminal Revision Application the applicant has impugned order, dated 15-4-2009 passed by the II-Additional Sessions Judge, Karachi-South in Criminal Miscellaneous Application No,110/2006 whereby the proceedings initiated by the complainant under section 3 of the Illegal Dispossession Act, 2005 (hereinafter referred to as "Act of 2005") were adjourned sine die.
2. Briefly, the applicant who claims to be the owner of Plot bearing No,D-12, Block-2, K.D.A. Scheme No,5 (Improvement Scheme), Clifton, Karachi (hereinafter referred to as "said plot") filed an application under section 3 of the Act, 2005 asserting therein that due to registration of few cases against him he remained in judicial custody from 1996 to 2003 and in his absence "said plot" was looked after by his daughter. It was the case of applicant that somewhere in January, 2006 the respondent who is a renowned land grabber forcibly occupied the "said plot" and when his daughter asked the respondent to vacate the "said plot", he instead erected a boundary wall. It was further stated in para. 8 of the complaint that upon inquiry it transpired that the respondent has manipulated some documents on the basis whereof he has filed Suit bearing No,178 of 2006 before this Court seeking specific performance of a Sale Agreement whereby the applicant had purportedly sold the "said plot" to the respondent. The applicant consequently had no option but to file the instant complaint. Since the complaint was filed through Attorney, therefore, the trial Court initially dismissed the complaint by holding that it was filed by an alien. The order of dismissal was impugned before this Court in Criminal Revision No,137 of 2007 and this Court after hearing the parties allowed the Criminal Revision by directing the trial Court to proceed with the complaint in accordance with law. The respondent, thereafter, impugned the order of this Court before the apex Court and the apex Court vide its order dated 28-2-2008 refused to grant the leave by holding that filing of Criminal Complaint by an Attorney at the most would be an irregularity and such complaint could be treated as complaint filed by her in personal capacity. The matter consequently was proceeded before the trial Court and the trial Court in terms of section 5 of the Act, 2005 obtained fresh report from the concerned S.H.O. And thereafter upon hearing the parties through impugned order adjourned the hearing of complaint sine die.
3. ' Mr. Raza Hashmi, learned counsel appearing for the applicant contends that notwithstanding pendency of civil suit whereby the respondent seeks specific performance of an alleged sale agreement against the applicant the instant complaint could proceed side by side and the order passed by the learned trial Court staying the proceedings sine die cannot sustain. It is contended by Mr. Hashmi that neither there is any bar against initiation of civil and criminal proceedings simultaneously nor the initiation of civil proceedings could result in suspension of criminal proceedings. In support of his contention Mr. Hashmi has placed reliance on the judgment of apex Court in the case of Rafique Bibi v. Muhammad Sharif and others (2006 SCM R 512).
4. ' On the other hand Mr.Aamir Mansoob Qureshi, learned counsel appearing for the respondent contends that when the applicant was confined in jail due to nature of cases against him all his accounts were seized and he and his family was in dire need of money and, therefore, wanted to sell the "said plot". The respondent being a renowned businessman having his house on Plot No,D- 11, Block-2, Clifton, Karachi i,e, next to the "said plot" showed his interest to purchase and through a friend met the daughter of the applicant (through whom instant complaint was filed) who demanded Rs.80,00,000 against the sale of "said plot", the respondent offered Rs.70,00,000 and ultimately parties agreed to the price of Rs.77,50,000 and the sale was concluded, formal agreement and possession letter was drawn and on one occasion when the applicant was produced in Court the documents were signed and handed over to the applicant against part payment of Rs.31,00,000. Thereafter the respondent continuously requested the applicant to specifically perform his part of the agreement but it was avoided on one pretext or the other which led to filing the Suit bearing No,178 of 2006 before this Court and this Court on an application directed the Nazir to takeover the possession of the "said plot". Per learned Counsel, on the direction of the trial Court concerned S.H.O. After investigating the matter submitted a detailed report which not only negates the allegation of the applicant but support the case of Respondent. Mr. Aamir lastly contended that since the Civil Court is seized of the matter and has to decide the rights and liabilities of the parties, therefore, it was just and appropriate to stay the criminal proceedings. In support of his contention reliance has been placed on the order of the Supreme Court of Pakistan in the case of Abdul Haleem v. The State (1982 SCMR988), Abdul Ahad v. Amjad Ali and others (PLD 2006 SC 771), Rahim Tahir v. Ahmed Jan (2007 PCr.LJ 1920) and. Saeed Qureshi v. The State (2007 YLR 2795).
5. ' I have heard the learned counsel for the respective parties, perused the record as well as the case-law cited at Bar.
6. ' Perusal of the record reflects that initially the complaint was dismissed by the trial Court on the ground that the daughter of the applicant who filed the complaint as Attorney was not competent which order was set aside by this Court and the case was remanded. The respondent challenged the order of this Court directing remand, before the apex Court but without any success, ultimately in the second round the trial Court directed the S.H.O. Of the area to re-investigate and submit report. The investigation report submitted by the concerned S.H.O. Is based on statement of number of witnesses who have stated that the respondent is a businessm an and has his accommodation on Plot No,D-11, Block-2, Clifton, Karachi. It has also come on record that his brother Muhammad Saleem has his accommodation on Plot No,D-13 and since the "said plot" is in between Plots Nos.12 and 13, therefore, the respondent was interested to purchase the same. It has also come on record that the respondent was informed by a broker that the plot is owned by the applicant and his friend arranged a meeting with the daughter of the applicant and consequently a deal was struck between the parties. It is further evident from the record that since the applicant after the deal was finalized was avoiding the performance of his part of the agreement on one pretext or the other which compelled the respondent to file a suit seeking specific performance of sale agreement against the applicant which suit is pending before this Court. It also appears to be an admitted position that upon directions of this Court in Suit No,178/2006 where the respondent is seeking specific performance of the Sale Agreement in respect of the "said plot" Nazir has takenover the possession of the "said plot". Notwithstanding, the statements of witnesses recorded during investigation in terms of section 5 of the Act of 2005 and the allegation of the parties against each other the veracity whereof is yet to be determined by the concerned Court, the question which needs to be addressed appears to be as to whether in the peculiar circumstances of this case it. Would be appropriate for the Court of criminal jurisdiction to proceed with the instant complaint and to adjudicate a controversy pending adjudication before the Court of original civil jurisdiction.
7. ' Mr. Hashmi has placed reliance on the order of the Supreme Court in the case of Rafique Bibi (supra) wherein the apex Court concluded that there exists no bar to initiate both the proceedings i,e, civil and criminal simultaneously. However, in that case criminal proceedings were quashed by this Court on the ground of delay in recording F.I.R. And the apex Court while setting- aside the order of this Court observed that the effect of lodging F.I.R. With delay is always left to be considered by the trial Court ceased of the matter, therefore, the dicta laid down by the Apex Court in the said case is of no help to the applicant. Even otherwise, it is not disputed by the respondent that there exists no bar against simultaneously initiating or proceeding with the civil and criminal proceedings but disputes the continuation of criminal proceeding in the peculiar circumstances.
8. The respondent is claiming to have purchased the "said plot" from the applicant and has based his claim upon an Agreement of Sale and a possession letter allegedly signed by the applicant the veracity whereof can only be determined by the Court of civil jurisdiction where the suit of the respondent seeking specific performance of Sale Agreement is pending and the criminal Court has no jurisdiction to determine the effect of the said documents on the basis of police report. Even in the peculiar circumstance it would not be appropriate for the Court of criminal jurisdiction to determine as to whether the possession of "said plot" was handed over by the applicant to the respondent in consequence to sale agreement and possession letter or otherwise, till the effect of the said documents is decided by the B Court of civil jurisdiction. Furthermore, it cannot be ignored that the possession of the "said plot" has been taken over by the Court of civil jurisdiction precluding the Court of criminal jurisdiction from directing restoration, therefore, it appears to be just and appropriate for the purposes of avoiding a conflicting decision that the effect of the disputed documents be determined first by the Court of civil jurisdiction. In the case of Abdul Ahad (supra) the Apex Court upheld the stay of criminal proceedings during pendency of civil proceedings by observing that "there is now consensus of opinion that there is no invariablc rule that a criminal proceeding should be stayed pending the decision of civil suit but the matter is one of discretion entirely. While exercising discretion the guiding principle should be to see as to whether the accused is likely to be prejudiced if the criminal proceedings are not stayed in the case of dispute regarding title where it is difficult to draw a line between a bona fide claim and the criminal action." Likewise, in the case of Abdul Haleem (supra) the Apex Court has stayed criminal proceedings during pendency of civil litigation between the parties on the same subject-matter.
9. In the facts and circumstances of the case, I am of the view that continuation of criminal proceedings during pendency of civil proceedings on the same subject are likely to adversely effect the interest of respondent and, therefore, while upholding the impugned order dismissed the instant criminal revision application.