' IJAZ AHMAD CHAUDHARY, J. Filing this petition under sections 435/561-A, Cr.P.C., Sami-ul-Haq Khilji petitioner has challenged the order dated 8-7-2009 passed by the learned Additional Sessions Judge, Lahore whereby the application filed by the petitioner under section 265-K Cr.P.C. Has been dismissed for his acquittal in a private complaint preferred by Ali Raza Rizvi respondent No,1 against the petitioner. Farrukh Mehmood, and Muhammad Shakil under section 3 of the illegal Dispossession Act, 2005 and section 544-A, Cr.P.C., alleging therein as under:- "1. That the petitioner's father was the owner of property bearing No,S-74-R-2 situated at 2-A Punj Mahal Road, Lahore. The property was rented out to one Muhammad Abdul Ali Sheikh. After the death of father of the petitioner, the petitioner has filed an ejectment petition against the said Muhammad Abdul Ali Sheikh for eviction from the property. During the pendency of ejectment petition the wife of respondent No,1, who is a step sister of the petitioner has filed a petition for impleading her as necessary party, but her petition has been rejected by the Rent Controller. She has filed an appeal against the impugned order and the same was dismissed by Mr. Mehar, Muhammad Nawaz Additional Sessions Judge, Lahore. She also filed a second appeal which was dismissed by the Lahore High Court, Lahore in limine. 'On the other hand the ejectment petition filed by the petitioner was accepted by the Rent Controller, Lahore. The tenant filed a first appeal, which was dismissed by Mr. Mehar Muhammad Nawaz Additional Sessions Judge, Lahore. The tenant has filed a second appeal before the Lahore High Court, Lahore. The petitioner filed an execution petition before the Rent Controller Mr. Furgan Ahmed. The learned Rent Controller ordered the bailiff for the eviction of the tenant and hand over the possession of the property to the petitioner. The bailiff of the Honourable Court has handed over the possession of the property to the petitioner on 12-5-2008.
2. That the petitioner went to his property on 8-10-2008 and was astonished to see that the lock of the east door of the property in question was broken and a new lock was installed. On inquiry the security guard of other part of the building informed that on the last day respondents Nos. 1 to 3 came to the property and they broke the lock and installed a new one. The petitioner opened his premises from the other door of the .Property and checked the same. After a few minutes respondent No,3 came at the spot with arm along with more than six guards and threatened the petitioner not to open the lock. He also called the police. The S.H.O. Police Station Mozang came at the spot and examined the premises. At the same time respondent No,2 who is an employee of P.H.A. Came with arm along with more than 12 persons in two wagons to illegally dispossess the petitioner but due to the presence of the S.H.O.
They failed to dispossess the petitioner from the property to attend his office on the next day at 4- 00 p.m. The petitioner attended the office of S.H.O. Mozang on the next day (9-10-2008) and filed an application against respondents for necessary action and also requested for his protection but the S.H.O. Police Station Mozang did not take any legal action. The petitioner also engaged two private security guards for the premises but on the same day respondents again came at the property at night and by using the force illegally dispossessed the petitioner from the property. The petitioner informed S.H.O. Mozang about the new situation but he did not take any legal action against the accused persons.
' It has come to the knowledge of the petitioner that respondents Nos. 1 to 3 belong to a gr up of land grabbers and they want to alienate the property in q estion illegally and unlawfully. The petitioner also filed an application before the C.C.P.O. Lahore for necessary action.
3. That the petitioner is a lawful occupier of the property and cannot be dispossessed by illegal means.
4. That if the possession of the property is not restored to the petitioner, the petitioner will suffer irreparable loss and injury.
5. That all the articles belonging to the property still in his house and in possession of respondents Nos. 1 to 3.
6. That the petitioner has no other efficacious and speedy remedy available except to file this petition before this Honourable Court.
' In view of the above submissions, it is most respectfully prayed that the respondents be punished under the Illegal Dispossession Act, 2005 for dispossessing the petitioner and the possession of the property in question may very kindly be delivered to the petitioner in the supreme interest of justice.
' It is further prayed that till the decision of the complaint interim possession of the property in question be delivered to the petitioner .
' Any other relief which this Honourable Court may deem fit and proper be also granted."
2. The learned Additional Sessions Judge called for the report from the S.H.O. Concerned on the said complaint which was filed in Court on 10-1-2009 with the findings that the petitioner is not occupying the property in question illegally rather the petitioner has obtained possession thereof lawfully against consideration paid to the respondent No, l's son Syed Akbar Raza Rizvi. However, in the said complaint notices were issued to the petitioner and other respondents who in response thereto entered appearance before the learned Additional Sessions Judge. During the proceedings the petitioner moved an application under section 265-K, Cr.P.C. Which was contested by respondent No, 1 and dismissed through the impugned order dated 8-7-2009 and the same is being assailed through this revision petition.
3. Learned counsel for the petitioner contends that property No,S-74-R-2, situated at Punj Mahal Road, Lahore, measuring 2 kanals and 5 marlas was purchased by Mst. Shahida Begum wife of Syed Asad Ali Rizvi (mother-in-law of the petitioner and step mother of the respondent No,1) vide Sale-deed dated 27-3-1970. The said lady had four daughters and three sons but her one son died unmarried at a very young age in the lifetime of his parents.
4. Later on, the said lady distributed the aforementioned property amongst her legal heirs through a decree dated 21-7-1983 passed in a suit for declaration titled Mst. Kaniz Saleha and 5 others v.
Mst. Shahida Begum and another whereby the four daughters were given 1/3 share, two sons were given 1/3 share with possession while the remaining 1/3 share was kept by the said lady along with her husband Syed Asad Ali Rizvi. However, new joint owners allowed their parents to continue with the management and administration of the said property and got the record of the Excise and Taxation Department modified accordingly.
5. From the first wife of Syed Asad Ali Rizvi, respondent No,1 and a daughter were born and are alive.
After the death of Syed Asad Ali Rizvi, respondent No,1 and his sister being the legal heirs of the said deceased, inherited along with other heirs their shares in the said property. The share of respondent No,1 in the said property was very small but he acted cleverly and with mala fide, who after the death of his father swiftly filed ejectment petition against a tenant who was occupying almost half of the property on rent. The other heirs tried to become party in the said ejectment petition but were not allowed by the Court due to the settled principle of law that a co-owner can file ejectment petition without impleading other co-owners as party therein.
6. Meanwhile, the co-owners approached respondent No,1 and offered to sell the said property and to distribute its sale proceeds amongst the heirs in accordance with their lawful share. Respondent No,1 accepted the said offer on the condition that he would be paid Rs,10,00,000 in advance to be adjusted against his share in the sale proceeds. To retrieve the property out of the litigation, Rs,10,00,000 were paid to respondent No,1 through three crossed cheques against receipt/acknowledgement dated 10-12-2006 wherein he undertook to withdraw all litigation including ejectment petition and not to file any further case against the other co-owners.
7. Subsequently, respondent No,1 resiled from his commitment and continued with the litigation.
Meanwhile, the wife of the petitioner and her two sisters gifted their share in the said property to the petitioner vide registered Gift Deed dated 11-8-2008 while the heirs of the two deceased full brothers of the petitioner's wife appointed the petitioner as, their general attorney vide General Power of Attorney dated 3-11-2008 registered on 5-11-2008 with the office of Sub-Registrar concerned.
8. Disregarding the undertaking dated 10-12-2006, respondent No,1 obtained possession of the almost half portion of the said property on 12-5-2008 under the garb of execution of the ejectment order and thereafter, delivered the same to his son Syed Akbar Raza Rizvi.
9. The said son of respondent No,1 approached the petitioner and demanded a further sum of Rs,15,00,000 for delivering possession of the said portion which demand was fully supported by respondent No,1. In order to restore the status of the property as being "not disputed property", the petitioner paid Rs,15,00,000 to respondent No,1's Syed Akbar Raza Rizvi against receipt/acknowledgment dated 10-10-2008 wherein he acknowledged to have delivered the possession of the said portion to the petitioner against payment of Rs,15,00,000 to be adjusted against respondent No,1's share in the sale proceeds of the said property.
10. Again respondent No,1 backed out of his commitment and dishonestly filed a false complaint under section 3 of the Illegal Dispossession Act, 2005 against the petitioner and 2 others.
11. The learned counsel for the petitioner further contended that it is an admitted position that the property in question is jointly owned by the petitioner and respondent No,1 along with others and the respondent No,1 has received certain amounts from the petitioner and the other co-owners on account of the price of his share in the said property. Even otherwise, as per law the possession of, one co-owner is regarded possession of all therefore, the possession of the petitioner on the said property cannot be termed as illegal and without lawful authority disregarding the fact that the same has been obtained against payment of further sum of Rs,15,00,000 and that the provisions of the Illegal Dispossession Act, 2005 are not attracted in the facts and circumstances of the instant case. In support of his contention he has relied upon 1987 CLC 211 and 2007 PCr.LJ 1280. The learned counsel for the petitioner has also contended that a co-sharer cannot be tried under Illegal Dispossession Act and placed reliance on PLD 2007 Peshawar 123, 2007 PCr.LJ 891, PLD 2007 Lahore 231, and 2007 PCr.LJ 1347.
12. On the other hand, it is contended by the learned counsel for respondent No,1 that the arguments advanced by the learned counsel for the petitioner are not based on the documentary evidence. However, he admitted that the petitioner is a co-sharer in the said property; but contended that in section 3 of the Illegal Dispossession Act, there is no word used as property grabbers and the petitioner has no lawful authority to enter into the portion of the property which was in possession of respondent No,1 and that right of respondent No,1 as owner of the said property has been admitted during the proceedings of ejectment petition as application filed by one of the daughters of Mst. Shahida Begum to become party therein was dismissed by the learned Rent Controller. He relies upon 2009 SCMR 1066 to contend that the complainant has only to show that he was lawful owner of the property and accused had illegally dispossessed him. He also relies upon PLD 2007 SC 423 to contend that it is premature stage and evidence has yet to be recorded; and that son of respondent No,1 has no authority to receive the said amount. He further relies upon 2009 PCr.LJ 578 to support his contentions.
13. I have heard the learned counsel for the parties and gone through the impugned orders as well as the other relevant documents. It is not denied by the learned counsel for respondent No,1 that Mst. Shahida Begum mother-in-law of the petitioner was owner of the bungalow No,S-74-R-2, situated at Punj Mahal Road, Lahore. It is also not denied by the learned counsel for respondent No,1 that Mst Shahida Begum transferred 1/3 share to her sons, 1/3 share to her daughters in the said property vide judgment and decree dated 21-7-1983 passed by the learned Civil Judge 1st Class, Lahore and retained remaining 1/3 share thereof for herself as well as for her husband and that she died in the lifetime of her husband. The disputed portion of that property was given on rent to Abdul Ali Sheikh by Mst. Shahida Begum in her life time. Subsequently, upon her death, her share in the said property devolved upon her heirs including her husband who was father of the wife of the petitioner and respondent No,1 . Admittedly, respondent No,1 is the step brother of the petitioner's wife and her real sisters and brothers who were from Mst. Shahida Begum. Respondent No,1 was step son of said Mst. Shahida Begum who is from the first wife of her husband Syed Asad Ali Rizvi.
After the death of his father (Syed Asad Ali Rizvi), respondent No,1 filed ejectment petition for eviction of the tenant wherein an application was moved by one of the daughters of Mst.Shahida Begum for becoming party which dismissed on the technical ground that an ejectment petition could be filed by any of the co-owners and as respondent No,1 was also a co-owner of the said property due to the share of his deceased father therein therefore, the ejectment petition was not only held maintainable but was also accepted subsequently. The claim of the petitioner that seeking ejectment order by respondent No,1 and thereafter, obtaining possession in pursuance thereof, was contrary to the settlement dated 10-12-2006 where-under respondent No,1 received an amount of Rs,10,00,000 from the petitioner and two daughters of Mst. Shahida Begum through three cheques has not been denied by respondent No,
1. It is also borne out that respondent No,1 did not abide by his commitment and sought the possession of the said portion of the property in question and therefore, to resolve the controversy another settlement was made on 10-10-2008 whereby an additional sum of Rs,15,00,000 was paid to the son of respondent No,1 by the petitioner in cash who delivered the possession of the portion of the property in question to the petitioner. Therefore, it cannot be said that respondent No,1 has been illegally dispossessed from the property in question rather the possession thereof has been delivered to the petitioner against receipt of a total sum of Rs,25,00,000. It may not be out of place to point out here that the report of S.H.O. Dated 9-1-2009 also contained documentary evidence, who concluded that the petitioner was occupying the said portion lawfully and against payment of consideration. Hence, in the facts and circumstances stated above, Illegal Dispossession Act, 2005 is not attracted particularly, when the dispute is amongst the co-owners. Learned counsel for the petitioner has rightly relied upon:- ' 2008 P Cr. LJ 1169 (Peshawar) 2007 MLD 1034 (Lahore) 2007 P Cr. LJ 891 (Lahore) 2007 P Cr. LJ 1347 (Lahore) PLD 2007 Peshawar 123 PLD 2007 Peshawar 179
14. Even preamble of the Illegal Dispossession Act provides that the said Act is specific to the extent of the property grabbers. Though respondent No,1 has claimed that the petitioner and other accused are land grabbers but has not given any specific instance of their involvement in such activities and also has not placed on record any documentary evidence in support of his claim.
The perusal of the record shows that it is a private dispute between the parties and both the parties are co-sharers in the said portion of the property which was not exclusively owned by respondent No,1 who is owning a very small share as compare to the other co-owners. Moreover, claim of the petitioner is that respondent No,1 had received a total sum of Rs,25,00,000 through cheques and also in cash which is almost equivalent to the value of his share in the said property despite the fact that his name is yet to be incorporated as co-owner in the record held by various Government Departments. The facts of the case revealed that the said dispute which is civil in nature has been converted into criminal offence by the respondent No,1 with mala fide intention in order to pressurize the petitioner and other legal heirs of Mst. Shahida Begum for grabbing further amount in spite of the fact that he had already received a reasonable amount from them. The said issue can be resolved by the civil Court, which is only competent to decide the shares of the parties or that whether any amount was due from the petitioner and other legal heirs of Mst. Shahida Begum towards respondent No,1 in respect of his share in the said property. The special enactment shows that this is exclusively applicable in the case where Qabza groups and land grabbers have taken possession of the property illegally and have a chequered history in this behalf. In the present case, there is no documentary evidence about such previous record of the petitioner and other co-owners but even then the petitioner who is admittedly a co-owner has been implicated as an accused by respondent No,1 in the complaint. So the said Act is not applicable and the complaint filed by respondent No,1 by impleading the petitioner as an accused is not maintainable in view of the law laid down by the superior Courts. In Zahoor Ahmad etc's case (PLD 2007 Lahore 231), the Full Bench of this Court observed as under:- "7. For the purpose of providing guidance to all the Courts of Session in the Province of the Punjab we declared as follows:
(i) The Illegal Dispossession Act, 2005 applies to dispossession from immovable property only by property grabbers/Qabza Group/land mafia. A complaint under the Illegal Dispossession Act, 2005 can be entertained by a Court of Session only if some material exists showing involvement of the persons complained against in some previous activity connected with illegal dispossession from immovable property or the complaint demonstrates an organized or calculated effort by some persons operating individually or in groups to grab by force or deceit property to which they have no lawful ostensible or justifiable claim. In the case of an individual it must be the manner of execution of his design which may expose him as a property grabber.
(ii) The Illegal Dispossession Act, 2005 does not apply to run of the mill cases of alleged dispossession from immovable properties by ordinary persons having no credentials or antecedents of being property grabbers/Qabza Group/land mafia, i,e, cases of disputes over possession of immovable properties between co-owners or co-sharers, between landlords and tenants, between persons claiming possession on the basis of inheritance, between persons vying for possession on the basis of competing title documents, contractual agreements or Revenue Record or cases with a background of an on-going private dispute over the relevant property.
(iii) A complaint under the Illegal Dispossession Act, 2005 cannot be entertained where the matter of possession of the relevant property is being regulated by a civil or revenue Court.
All the Courts of Session in the Province of the Punjab are directed to examine all the complaints under the Illegal Dispossession Act, 2005 pending before them and to dismiss all those complaints forthwith which are found to be not maintainable in terms of the interpretation of the said law rendered by us through the present judgment."
' The august Supreme Court of Pakistan in Gul Ahmed and 3 other's case (2000 SCMR 122) has held that in exceptional cases the High Court can quash the F.LR. Without waiting the recourse to the learned trial Court under section 249-A, Cr.P.C. Or 265-K, Cr.P.C. The reliance is also placed on 2007 PCr.LJ 1280 (Lahore) and 2007 PCr.LJ 1920 (Kar.).
15. From the perusal of the above said facts and the case-law, it is found that Illegal Dispossession Act, 2005 is only applicable to the person who has taken the possession was not having a title thereto, secondly, that he has taken the possession by the use of force, thirdly, that he has taken over the property without the due process of law and grabbers. Private complaint can only be entertained if there is prima fourthly, that such person or persons belonged to the group of land facie material against the nominated accused. The civil dispute cannot be allowed to be converted into criminal offence by implicating one or more co-owners as this would be misuse of the provisions of the Illegal Dispossession Act, 2005 and ratio of the above cited cases is that the said Act is applicable only to the land grabbers, but as regards the civil disputes or dispute amongst the co-owners, the civil Court is the competent forum to resolve the said issue after recording the evidence.
16. In the above circumstances, this petition is accepted, the application of the petitioner, filed by him under section 265-K, Cr.P.C. Is accepted and consequently, the petitioner is acquitted of the charge by quashing the proceedings pending before the learned trial Court in connection with the private complaint filed by respondent No,1 under section 3 of the Illegal Dispossession Act, 2005, which stands dismissed.