' MUNIB AKHTAR J.--This revision application arises out of the impugned judgment dated 1-9-2009 of the learned IVth Additional Sessions Judge, Hyderabad under the Illegal Dispossession Act, 2005 ("2005 Act").
' The applicant (herein after referred to as "the complainant") filed a complaint under the 2005 Act against the respondent Nos. 2 and 5 (who are respectively, mother and son, and are hereinafter referred to was "the contesting respondents"). The complainant's grievance was that he was (and is) the owner of the property described in the complaint (hereinafter "the subject property"), being the first floor of certain premises which comprised of ground plus two floors. The subject property was acquired by the complainant on or about 26-9-2008. The complainant stated that the respondent No, 2 was, at the material time, occupying the second floor of the premises, which belonged to one Saiful Malik as his tenant. According to the complainant, the portion belonging to him, i,e,, the subject property, was lying vacant, and the contesting respondents illegally broke open the locks and occupied the same. The complainant served a legal notice dated 4-6-2009 on the respondent No,2, calling on her to vacate the premises within seven days. When this proved to be of no avail, he filed the complaint noted above under the 2005 Act.
2. The learned trial court directed be concerned S.H.O. To investigate the matter. It seems that the respondent No,2 first took up the position that she was the complainant's tenant, but then her case was (and now continues to be) that she had entered into an agreement to sell dated 2-2-2009 with the complainant whereby she had agreed to purchase the subject property from the latter.
The agreement, which was placed on record both before me and the learned trial court, purported to show that the sale consideration was Rs,375,000 of which a substantial portion (Rs,325,000) had been paid to the complainant, and the respondent No, 2 had been put in possession of the subject property in part performance of the said agreement. The complainant rejected the agreement to sell, and his case was that it was a complete fabrication. The learned trial court, after hearing the parties and considering the material placed on the record, dismissed the complaint. Reliance was placed on a decision of the Lahore High Court reported as Zahoor Ahmed v. State PLD 2007 Lah 231.
After citing extensively from the said decision, the learned trial court held as follows: "From the observation made in the case law relied supra it indicates that the Illegal Dispossession Act 2005 is restricted in its scope and applicability to only those cases where a dispossession from immovable property has allegedly come about through the hands of a class or group of persons who have the credentials or antecedents of being property grabbers/Qabza Groups/land mafia and the said Act does not apply to run of the mill cases of alleged dispossession from immovable properties by ordinary persons having no such credentials or antecedents, 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 claiming 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. It is, thus imperative that before entertaining a complaint under the Illegal Dispossession Act, 2005 a Court of Session must feel prima facie satisfied that the persons complained against have the credentials of being members of a Qabza Group or land mafia and it is only after such prima facie satisfaction that the complaint may be entertained by it. For the purpose of such prima facie satisfaction there must exist some material showing involvement of the persons complained against in some previous activity connected with illegal dispossession from immovable property or at the very least the complaint must demonstrate 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 or justifiable claim. The language of the Short Title and of the Preamble to the Illegal Dispossession Act, .2005 and the Working paper and the parliamentary debates clearly show that a person has to be a property grabber or a member of a Qabza Group or land mafia before he can be proceeded against under the said Act. In the case of an individual it must be the manner of execution of the design which may expose him as a property grabber and in the case of a Qabza Group or land"mafia it is not the present allegation which should try to portray, depict or establish him as a property grabber but he must already be a known, acknowledged or established property grabber.
' Herein present case, the complainant is claiming that. The respondents/proposed accused are in illegal occupation of house bearing No,3030/C, 1st floor, Wadhan Jo Pir in dispute though the Illegal dispossession Act is meant for land grabbers, who illegally, unlawfully grabbed or controlled the property of owners or occupier. Whereas, in present case as per the inquiry report, proposed accused are claiming that the house under complaint had been taken on rent from complainant.
In above circumstances, the complainant has failed to establish a prima facie case under section 3 of Dispossession Act, 2005, therefore instant criminal complaint is dismissed."
3. Learned counsel for the complainant submitted that the impugned judgment was wrong both in law and on the facts. As to the former, learned counsel referred to certain decisions, but relied primarily on the judgment of the Supreme Court reported as Mumtaz Hussain v. Dr. Nasir Khan and others 2010 SCMR 1254. On the facts, learned counsel submitted that the learned trial court concluded that the contesting respondents' case was that the subject property was in their possession on the basis of a tenancy whereas the police report had itself showed that they had changed their stance and were claiming under the agreement to sell noted above. Thus, there was a material contradiction apparent from the record, which was not appreciated by the learned trial court. Learned counsel submitted that the impugned judgment merited being set aside, and the matter remanded for a proper trial on the complaint.
4. Learned counsel for the contesting respondents defended the impugned judgment. His case was that there was a valid agreement to sell between the parties, and the respondent No, 2 had been put in possession of the subject property in terms thereof. He submitted that the respondent No,2 had filed a civil suit seeking specific performance of the said agreement, and the said suit was pending adjudication. He submitted that the matter being a civil dispute, could therefore only be resolved in the pending civil litigation, and the complaint was an abuse of the process of law. He prayed that the revision be dismissed. Learned DPG also supported the impugned judgment, and submitted that it suffered from no material irregularity or illegality as would require interference by this Court. It may be noted that it is common B ground between the parties that the civil suit as above was filed after the filing of the complaint by the complainant.
5. The first point requiring determination is whether, in law, the view taken by the learned trial court of the 2005 Act (as reproduced above) is correct. As already noted, the learned trial court has followed and applied the decision of the Lahore High Court in the Zahoor Ahmed case. This decision was considered by the. Supreme Court in the Mumtaz Hussain case. The Supreme Court examined in detail the various provisions of the 2005 Act, and concluded as follows: "Thus section 3 of the Act is very clear and unambiguous and its scope is wide enough to cover the class of persons mentioned in the preamble: Therefore, the preamble of the Act cannot restrict its meaning as such the Act would be applicable to dispossession of a person from the property by any person including property grabber, Qabza group or land mafia." (para. 10)
' It is clear from the decision of the Supreme Court that it has not approved of the view that had found favour with the Lahore High Court. It follows that the impugned judgment is not sustainable in law.
6. While the foregoing is sufficient, in and of itself, for this revision being allowed, there is nonetheless, another important aspect of the case that requires consideration. As noted above, the case of the contesting respondents is that they are in possession of the subject property under an agreement to sell for which a suit for specific performance is pending in the civil court. The complainant on the other hand rejects this agreement as a fabrication. The question that inevitably arises is whether any purpose would be served in remanding the case to the learned trial court if, as contended by learned counsel for the contesting respondents, that court would have to stay its hand and await the outcome of the civil suit. This is an important question. In the Mumtaz Hussain case the respondent denied the title of the complainant, and the Supreme Court considered the question whether a court of criminal jurisdiction, seized of a complaint under the 2005 Act, could examine the question of title to the property. The Supreme Court observed that it was the "sole function of the Civil Court to give authoritative decision with regard to title of the property and the Criminal Court is most competent to give any finding qua title of the property"
(para. 11), but also held as follows: "For the purpose of examining the question of title in respect of the property, as already pointed out, the Court has to simply form an opinion as to whether prima facie any party is coming within the ambit of definition mentioned in section 3 of the Act and if the Court forms such opinion from the material placed before it, then the Court can proceed with the matter or otherwise, as the case may be." (para. 12)
' In the case before it, the question of the title of the complainant (the appellant before the Court) was already under litigation before the filing of the complaint, and therefore, on the facts, the Supreme Court dismissed the appeal. Similarly, in Dr. Muhammad Safdar v. Edward Henry Louis PLD 2009 SC 404, the question of title was already in litigation before the filing of the complaint, and leave to appeal was refused. In Rahim Tahir v. Ahmed Jan and others PLD 2007 SC 423, the civil litigation was filed after the filing of the complaint, and it was observed that the 2005 Act covered "all cases of illegal occupants without any distinction" "except the cases which were already pending before any other forum", and these observations were cited with approval Muhammad Akram and others v. Muhammad Yousaf and another 2009 SCMR 1066. It therefore appears to be the rule that even if the title of the complainant is challenged by the respondent in civil litigation, that does not prevent the criminal court exercising jurisdiction under the 2005 Act from entertaining the complaint, provided that the civil litigation does not precede or predate the complaint. In proceeding with the complaint, the criminal court is only required and permitted to form a prima facie opinion of the title for purposes of the 2005 Act and disposal of the complaint, and this is without prejudice to the final and authoritative adjudication on the matter by the civil court.
7. In the present case, the position appears to be that the civil suit for specific performance of the agreement was instituted after the filing of the complaint under the 2005 Act. The point of difference is however, that in the present case, the contesting respondents (and especially of course, the respondent No, 2) do not challenge the title of the complainant to the subject property.
Indeed, they cannot, since a suit for specific performance filed by a vendee is obviously premised on the title to the property vesting in the vendor. The Rahim Tahir case (supra) also involved a situation where the respondent claimed to be in possession (as vendee) on the basis of an agreement to sell, but there the agreement had purportedly been entered into on behalf of the owner by an attorney whose authority had admittedly been revoked prior to the execution of the agreement to sell. In the circumstances, the Supreme Court concluded that "the mere filing of the suit subsequent to the filing of the complaint on the basis of a document Which has no legal foundation would be of no significance to protect the illegal and unauthorized possession" (para. 5).
8. The offence under section 3 of the 2005 Act, like many offences, comprises of different elements or ingredients, all of which have to be established before the offence is made out. The Supreme Court, in the Muhammad Akram case (in para. 7 at pg. 1069) observed that the offence comprised of four elements. The first is that the complainant must be the actual owner (or occupier in lawful possession) of the property, and the issue of title, considered in the cases noted above, goes towards establishing this element. The third and fourth elements are that the accused must have entered the property without lawful authority and with intent to dispossess the complainant, and it is these elements that are relevant for present purposes. The contesting respondents contend that their entry into, and possession of, the subject property is entirely lawful, being the result of the agreement to sell, which the complainant' rejects as a fabrication. Now the act (or acts) that's go towards establishing the third and fourth elements may itself (or themselves) constitute an offence. If this be the case then in my view, the criminal court has the jurisdiction to consider and decide any matter relating to such acts, even though the act (or acts) may also constitute, or be part of. .a civil dispute or cause of action pending in a civil court. The case at hand is a good illustration of this point. The agreement to sell is a "valuable security" within the meaning of section 30, P.P.C., and the complainant's contention that it is a fabrication means that he alleges that it is a forgery within the meaning of section 463, P.P.C.. The forgery of a valuable security is punishable with imprisonment up to ten years under section 467. Since the contesting respondents' claim to lawful possession is based squarely on the agreement to sell, in my view, the question whether this document is a forgery is within the competence and jurisdiction of the criminal court seized of the complaint under the 2005 Act and this matter can be considered and decided by that court. This is so notwithstanding that the agreement to sell is also the subject of the suit for specific performance pending in the civil court between the contesting, respondents and the complainant.
However, one point, though well established, ought to be clarified since it may otherwise cause some confusion. Proceedings in a civil court on the one hand, and a court of criminal jurisdiction on the other, are separate and distinct. The same act may be both a civil wrong and a criminal offence. The mere fact that a party fails to establish that the act constitutes a criminal offence does not mean that it cannot therefore be a civil wrong. The reasons is that the standard of proof required in a civil suit is different from that in a criminal case. In the latter, the offence must be proved beyond reasonable doubt. In the former, the court simply has to consider the balance of probabilities. To apply these considerations to the case at hand, even if the complainant fails to establish (as part of the third and fourth elements of the offence under section 3 of the .2005 Act) that the agreement to sell is a forgery, that would not automatically mean that the contesting respondents would be entitled to a decree for specific performance. That is a matter for the civil court to decide on its own merits, on an evaluation, on the balance of probabilities, of the evidence led at the civil trial.
9. In my view therefore, the question of whether, as claimed by the complainant, the agreement to sell is a forgery and constitutes an offence, is a matter that the criminal court can consider and decide at the trial on, and disposal of the complaint. The civil suit will be decided on its own merits, and the criminal court need not stay its hand to await the outcome of the civil litigation.
10. What however of the situation where the act (or acts) that go towards establishing the third and fourth elements do not itself (or themselves) constitute an offence, but nonetheless constitute, or are part of, a civil dispute or cause of action pending in a civil court, i,e,, amount to a civil wrong? In my view, in such a situation, a rule similar to that laid down in respect of title by the Supreme Court in the Mumtaz Hussain case would be applicable, i,e,, the criminal court would be entitled to form an opinion with regard to the relevant act (or acts) to the extent necessary for the purposes of the 2005 Act and the disposal of the complaint before it. The civil court would of course, be at liberty to decide the civil suit before it on its own merits, and determine, on a proper evaluation of the evidence and on the balance of probabilities, whether the act (or acts) amount to a civil wrong.
11. One final point needs also to be addressed, and that arises in respect of section 7 of the 2005 Act. This provides in its subsection (1) as follows: "7. Eviction and mode of recovery as an interim relief.-(1) If during trial the Court is satisfied that a person is found prima facie to be not in lawful possession, the Court shall, as an interim relief direct him to put the owner or occupier, as the case may be, in possession."
Four points may, for present purposes, be made with regard to G1 subsection (1). Firstly, the jurisdiction conferred thereby is exercisable during the trial, and not before. It is to be noted (which even otherwise is self-evident) that the interim relief can be granted even while the trial is still in progress, i,e,, even before it is established whether the accused has committed the offence under section 3. Secondly, if the subsection is found to be applicable, then the court must ("shall") provide the interim relief specified therein. Thirdly, it is only necessary for the court to form a prima facie opinion. Finally, what .The court must be satisfied (prima facie) is simply that the accused is "not in lawful possession" of the property. This is different from recording a finding, or the court being satisfied (even prima facie), that the accused has entered the property without lawful authority with intent to dispossess (i,e,, the third and fourth elements of the offence under section 3). In my view, the legislature has deliberately used a formulation ("not in lawful possession") that is less onerous to establish than the third and fourth elements of the offence under section 3. The reason for this is understandable. The offence under section 3 can only be established at the conclusion of the trial. The intent behind section 7 is to grant interim relief during the course of the trial.
11. In view of what has been stated above, this revision application is allowed and the impugned judgment is set aside. The matter is remanded to the learned trial court for the trial and disposal of the complaint in accordance with law and in the light of what has been stated herein above, and the complainant and the contesting respondents shall appear before the learned trial court for this purpose. In the circumstances, the application listed along with the main revision has become infructuous and is disposed of as such.