' MUHAMMAD ALI MAZHAR J.-This criminal miscellaneous application has been brought to assail the order dated 28-6-2011, passed by learned Sessions Judge, Ghotki, whereby application moved by the applicants for stopping/staying the proceedings of the Criminal Complaint No,15 of 2011 filed by respondent No,1 under sections 3, 5,& 7 of the Illegal Dispossession Act, 2005; was dismissed.
2. Succinctly, the facts of the case are that respondent No.1 filed a criminal complaint against the applicants, alleging therein that he is real owner of agricultural land ad-measuring 10-15 acres, situated in Deh and Tapo Jehanpur, District Ghotki as per revenue record vide entry No,216 dated 26-2-2002. It was further averred that respondent No,1 was in peaceful possession and cultivating the said agricultural land without any hindrance and disturbance and paying the land revenue dues etc. Regularly. The applicant No,2 claimed outstanding amount of Rs,20 lacs from Abdul Razak son of the respondent No,l. Abdul. Razak filed Constitution Petition No,S-341 of 2011 in this court against the accused. On issuance of notices, the accused persons became annoyed and on 20-3- 2011, respondent No,1 along with villagers, Haji Dhani Bux, Abdul Rauf. Manzoor, Jam Zahoor and Nihal duly armed with K.Ks. Illegally trespassed and dispossessed the respondent No,1 from his land without any lawful authority, right and or title.
3.The learned counsel for the applicant argued that the application for stopping the proceedings arising from the aforesaid complaint was filed on the ground that between the same parties a civil suit is pending. It was further averred that applicant No,1 purchased the property in question by virtue of an agreement dated 29-1-2011 and thereafter respondent No,1 refused to mutate the property in favour of applicant No,1 therefore, the applicant No,1 filed a Civil Suit No, 36 of 2011 which is pending in the court of Senior Civil Judge Ghotki. The learned counsel argued that since the suit for specific performance is pending in the competent court of law hence, there is no lawful justification to proceed the criminal complaint simultaneously under the provisions of Illegal Dispossession Act. Till such time the suit is decided by the learned civil court, it would be in the interest of justice to stop the proceedings of Criminal Complaint No, 15 of 2011 and Sessions Case No,254 of 2011. The learned counsel relied upon 2010 SCMR 1254 (Mumtaz Hussain v. Dr. Nisar Hussain and others), in which, the honourable Supreme Court held that before filing of application under section 4 of Illegal Dispossession Act, there was civil litigation between the parties in which their titles were questioned and status quo order was passed. As question of title of property was already pending before ' competent court of civil jurisdiction before filing of complaint therefore, the honourable Supreme Court declined to interfere in the matter but observed that after decision of civil suit in favour of appellant, he could approach the court under Section 4 of the Illegal Dispossession Act, 2005. He next relied upon 2010 YLR 2864 (Muhammad Usman Farooqui v. State).
In this matter, the respondent was said to be a renowned land grabber who forcibly occupied the plot. Respondent on the other hand claiming to have purchased plot in question from the applicant through an agreement to sell and possession letter was also signed by the applicant. The court held that veracity whereof could only be determined by the court of competent jurisdiction, where the suit of respondent seeking specific performance of agreement was pending. He next relied upon 2000 SCMR 991 (Riaz-ul-Haq v. Muhammad Ashiq Jorah, Judicial Magistrate, Pind Dadan Khan and 2 others), in which it was held that ordinarily criminal proceedings were stayed till the conclusion of the civil proceedings but in view of peculiar circumstances of the case, court directed that trial in criminal charges in the case shall proceed but the final judgment should not be announced till conclusion of civil proceedings.
4.On the contrary, the learned counsel for the respondent NO.1 argued that the respondent No,1 is the absolute owner of the property in question and he was in peaceful possession but the applicant No,2 falsely claiming outstanding amount Rs,20,00,000/- against Abdul Razzak. He further argued that in order to protect the illegal act, the applicant have managed false and bogus agreement to sell dated 29-1-2011 and filed the suit on 20-4-2011 after filing the complaint by the respondent No,1 under the provisions of Illegal Dispossession Act. He further contended that the entire case of the applicant is based on one Iqrarnama which is forged and fabricated documents in which it is mentioned that the respondent No,1 allegedly sold the property which was mortgaged with the Bank. Neither the mortgaged property could be transferred nor mutated nor it is so simple to sell out the mortgaged property without redemption/repayment of the outstanding loan to the financial institutions': In support of his arguments the learned counsel referred to PLD 2008 Karachi 400 (Abdul Bari v. State and others), in which, the trial court dismissed the complaint observing that it was a dispute of civil nature. The learned single Judge of this court held that Illegal Dispossession Act, 2005 promulgated to safeguard the interest of the owners and to stop the land grabbers from occupying the lands illegally. No justification was available if the case was simply termed as a dispute in civil nature without bringing the relevant material on. Record. In this case the impugned order was set aside by this court with the directions to the trial court to call proper report from Mukhtiarkar in respect to the title and demarcation in respect of the land of applicant and proceed further under Illegal Dispossession Act. He further relied upon 2000 PCr.LJ 1898 Karachi (Habibullah Khan v. State. In this case, the learned Divisional Bench of this court held that inherent jurisdiction under section 561-A, Cr.P.C. Vesting in court was not available for throttling process of trial before the trial court nor was it aimed at allowing accused of substantive offences seeking their release through shortcut methods by invoking inherent/jurisdiction. He further relied upon 2010 PCr.LJ 422 (Shahabuddin v. State), in which it was held that nobody who files a civil suit whether before an act of illegal dispossession or after an act of illegal dispossession cannot wipe away his offence of illegal dispossession if it is held that suit filed before dispossession complaint would not be maintainable all that a careful offender will have to do is to file suit and thereafter indulge in the act of dispossession, therefore, in case of illegal dispossession pendency of a suit will have no bearing whatsoever.
5. After hearing the pros and cons of the case in hand, the outcome is the applicant wants that till final decision of the civil suit, the proceedings criminal complaint lodged under the provisions of Illegal Dispossession Act should be stayed. It is also an undeniable fact the civil suit filed by the applicant No,1 is based on only one Iqrarnama. It is also a fact that the complaint under the Illegal Dispossession Act was instituted on 31-3-2011 while the suit for Specific Performance Contract was filed by the applicant No,1 on 20-4-2011, which is almost after 21 days. The applicant claimed to have entered into the Iqrarnama/ agreement with the respondent No,1 and his son Abdul Razzak on, 19-1-2011 but it is also an admitted fact that the land in question was mortgaged with the bank and promised was made by the respondent No,1 A and his son that within 15 days the property will be redeemed and the land will be transferred in the favour of applicant. The mortgaged land cannot be sold out without first paying the liability to the Financial Institutions. Even in the suit for Specific Performance the bank is not party and no separate handing over taking over or possession letter or acknowledgment of the possession is available on record. In my own judgment reported in PLD 2011 Karachi 405 (Haji Muhammad Usman v. Abdul Sattar and others), I have discussed the provisions of Illegal Dispossession Act and held that mere filing of civil suit, subsequent to the filing of complaint was of no consequence and significance to protect an unauthorized possession, the purpose. Of Illegal Dispossession Act is to protect the right of possession of lawful owner or occupier and not to perpetuate the possession of illegal occupants.
In the case of Mumtaz Hussain 2010 SCMR 1254 it was held that the civil suit was filed earlier and complaint under Illegal Dispossession Act was filed subsequently and since in the civil suit, the question of title of property was involved, therefore, it was held that after decision of civil suit in favour of the appellant, he could have approached to the court under the provisions of Illegal Dispossession Act.In the case in hand the complaint was instituted earlier then the civil suit and there is no question regarding the title of the property is in dispute before civil court but matter only relates to the Specific performance of Iqrafnama/agreement.. Even in the case of Rahim Tahir's case PLD 2007 Supreme Court 423 it was held that mere filing of suit subsequent to the filing of complaint was of no consequence and significance to protect the illegal and unauthorized possession.
6. There is no invariable rule exists to the effect that pending decision of a civil suit, criminal proceedings must be stayed as it is purely matter of discretion yet. While exercising the discretion the guiding principle should be to see as to whether the accused is likely to C be prejudiced if the criminal proceedings are not stayed but when it is clear that the criminal liability is dependent upon the outcome of civil litigation then criminal proceedings may be stayed, particularly, when the dispute with regard to the title of the property. Reference can be made to 2010 SCMR 183 in which the proceedings were stayed on the ground that the eligibility of the complainant to file the complaint itself is dependent upon the outcome of civil suit and the complainant himself sought a declaration from the civil court that transfer letter in question was bogus, forged and fictitious therefore, the criminal proceedings were stayed.
7. In the present case, it is clearly stated by the complainant that the agreement/Iqrarnama was a forged documents and no possession was handed over to the applicants. There is no dispute of title between the parties but the dispute here is the applicants allegedly executed an agreement/Iqrarnama with the respondent NO. 1, therefore, a civil suit for specific performance was instituted subsequent to the filing of D criminal complaint which in my view cannot be treated a convincing or justifiable reason for staying the criminal proceedings under the provisions of Illegal Dispossession Act. In my another judgment reported in SBLR 2010 Sindh 904 (Ali Raza v. Haji Muhammad and others), I have thrashed out the applicability of Act and careful examination of the relevant provisions of Illegal Dispossession Act unequivocally revealed that all cases of illegal occupants without any distinction would be covered by the Act and the applicability of the Act is not confined to the offence of illegal dispossession committed by land grabbers or Qabza groups only. Though according to the preamble of the Act, the purpose of the Act gives the protection to the lawful owners and occupiers of immoveable properties from their illegal or forcible dispossession there from by the property grabber, however under section 3 of the Act it has been provided 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 owner or occupier of such property. In this section four eventualities i,e, "dispossess", "grab", "control" or "occupy, have been mentioned by the legislator, showing that the Act has not been promulgated only against the dispossession by the land grabbers or Qabza group, but it deals all types of dispossession which are fitted in the aforesaid conditions.
8. If the proceedings under the. Illegal Dispossession Act is stayed as a matter of routine on the plea and assumption that civil suit is pending then the entire Act will become redundant and unworkable and this will become a trend and modus operandi to first dispossess a person from his lawful property and occupation then file a civil suit to defend and protect an act of illegal dispossession with the plea that the property was not grabbed or encroached upon but it was sold out therefore, the criminal complaint either not maintainable or if it is maintainable then further proceedings should be stayed till the decision of civil suit which is totally foreign and alien to the provisions of Illegal Dispossession Act as mere pendency of civil suit cannot override the express provisions of a special law promulgated to provide expeditious relief and justice to an aggrieved person. Even otherwise in this case it is not foreseeable that the criminal liability is dependent upon the outcome of civil litigation, therefore, in my view it is not a fit case for exercising any discretion of this court to stay the proceedings of Illegal Dispossession Act till decision of civil suit.
9. The upshot of above discussion is that the order dated 28-6-2011, passed by the learned Sessions Judge, Ghotki does not call for any interference. The Criminal Miscellaneous application is dismissed.