' MUHAMMAD ATHAR SAEED, J.---This Criminal Revision Application has been filed against the judgment of IV Additional Sessions Judge Karachi East passed on 11-11-2009 in Criminal Complaint No,59 of 2008, whereby the complaint filed by the present applicant against the present respondents was dismissed and the respondents were acquitted from the charge under section 265-H(1), Cr.P.C.
2. I have heard Mr. Syed Samiullah Shah, learned counsel for the applicant, Mr. Fazal-ur-Rehman, learned Counsel for the respondents and Mr. Muhammad Iqbal Awan, Assistant Prosecutor- General.
3. The learned counsel for the applicant stated that he had occupied the Flat bearing No,C-508, Block-2, 5th Floor, Homeland Apartment, Plot No,S-520, Deh Gujro, Block 13-C, Gulshan-e-Iqbal, Karachi in the year 1999 and in the end of the year 2003 he locked the Flat and left for Lahore and when he returned back in the year 2008 he saw that the said Flat was being occupied by the respondent and therefore he filed a complaint under section 3 of the Illegal Dispossession Act, 2005. He submitted that since he had learnt about the illegal occupation of the Flat by the respondents somewhere in 2008, therefore, it was not possible for him to pinpoint the exact date on which the respondents illegally dispossessed him and occupied the Flat. His contention was that the respondents in collaboration with the Union of the Building had illegally occupied the Flat and, therefore, the case falls within section 3 of the Illegal Dispossession Act and the trial Court fell in error when it dismissed the Complaint and acquitted the respondents. He, therefore, prayed that his appeal may be allowed and the cognizance may be taken of his Complaint and it may be decided in his favour or in the alternative the matter may be remanded back to the trial Court to adduce further evidence and on the basis of that evidence decide the case afresh.
4. Mr. Fazal-ur-Rehman, the learned counsel for the respondents opposed the prayer of the learned counsel for the applicant and submitted that he had acquired the Flat in question by entering into an Agreement with the present applicant on 20-2-2004 and when it was discovered that the documents were in the name of Asim Ahmad, the brother of the applicant, another Agreement was entered into with Asim Ahmad. He referred to his counter-affidavit whereby he has submitted bills of gas and electricity from the Union, which are all dated 2004, to prove that he has been occupying this Flat on the basis of Sale Agreement entered into with the applicant since 2004. He also referred to the Examination-in-Chief of the applicant before the learned trial Court whereby the applicant had specifically stated that the present respondents had illegally occupied his Flat and dispossessed him in the year 2004 and on this basis the issue was framed by the learned trial Court as to whether in the year 2004 the accused forcibly occupied the Flat No,508, Block-2, 5th Floor, Homeland Apartments, Block-13, Gulshane-Iqbal, Karachi by dispossessing the Complainant Mujahid Ahmad and thereby committed an offence under sections 3 and 4 of the Illegal Dispossession Act, 2005 as alleged by the prosecution and detailed reasons have been given by the learned Judge in respect of his contention that the above issue was not proved. Mr. Fazal- urRehman also relied on the judgment of this Court authored by my learned brother Sajjad Ali Shah, J. In the case of CAPTAIN S.M. ASLAM V. THE STATE and two others reported in PLD 2006 Karachi 221 in respect of his contention, without prejudice to his claim that he had occupied the above Flat legally in the year 2004, that even if he had dispossessed the applicant in the year 2004 the honourable Judge has held that the provisions of the Illegal Dispossession Act will not apply to any offence committed before 30th June, 2005 i.e, before coming into force of the Illegal Dispossession Act, 2005. He, therefore,prayed that the instant Revision Application may be dismissed.
5. The submissions of the learned Assistant Prosecutor-General Sindh Mr. Muhammad Iqbal Awan was two-fold. He submitted that this Revision was not maintainable as the respondents were acquitted and therefore Acquittal Appeal under section 417(2), Cr.P.C. Should have been filed against such acquittal. He further submitted that the honourable Supreme Court in the case of DR. MUHAMMAD SAFDAR v. EDWARD HENCY LOUIS reported in PLD 2009 Supreme Court 404 has also revisited its earlier judgment and has held that the provisions of the Illegal Dispossession Act, 2005 will not apply to any offence committed before 30th June, 2005 i.e, before coming into force of the Illegal Dispossession Act, 2005.
6. I have examined the case in the light of the arguments of the learned Counsel and have perused the records of the case including the judgments relied by the learned counsel.
7. In the case of Dr. Muhammad Safdar quoted supra it had been clarified that the provisions of the Illegal Dispossession Act will not apply to any offence committed before coming into force of the said Act, which will have to be governed by the other laws which may have been applicable at the time of the offence. However, I have also examined the latest judgment given by the three members Bench of the honourable Supreme' Court of Pakistan in the case of MUMTAZ HUSSAIN V.
DR. NASIR KHAN and others reported in 2010 SCMR 1254 wherein in paragraph 14 the honourable Supreme Court has discussed the retrospective operation of the Act and considered both, the cases Rahim Tahir reported in PLD 2007 SC 403 and Muhammad Safdar quoted supra and then held as under:-- "In both the above cases, it has specifically been mentioned that the Act has no retrospective effect. While making observation on the case of Rahim Tahir (supra), this Court in the subsequent decision viz. Muhammad Safdar simply made the above mentioned observation without making any discussion on the subject and also without making any reference to the expressions "grab, control or occupy" appearing in section 3 of the Act. It is pointed out that the definition of word "control" has already been given in the earlier part of the judgment, which inter alia means "relates to authority over what is not in one's physical possession". The word "occupy" has been defined in the case of People v. Wilkinson 56 Cal. Rptr. 261, 264, 246 C.a. 2d. Supp. 906, as "within statute making it misdemeanor to wilfully commit trespass by entering and occupying realty or structures without consent means non-transient, continuous type of possession". It also means holding possession as mentioned hereinabove. Thus the meaning of these words clearly demonstrate that if anybody controls or holds unlawful or illegal possession of the property at, the time of enactment then he would come within the ambit of the Act. Therefore, a complaint can validly be filed against such person by the occupier or owner of the property. Thus if the act of the accused comes within the meaning of any of the words viz., dispossess, grab, control or occupy on the date when the Act was promulgated then an action can be initiated as provided under section 4 of the Act."
8. From a perusal of the impugned order I have seen that substantial evidence has been provided to the effect that the respondents were occupying the property since 2004 legally on the basis of valid documents. Thus, even if I follow the judgment in the case of Mumtaz Hussain quoted supra the conclusion which can be arrived on the peculiar facts of the case makes it clear that since illegal occupation at the time of coming into force of the enactment has not been proved and, therefore, the onus on the present applicant to prove that the flat has been illegally occupied has not been discharged and there is no allegation that the applicant was illegally dispossessed either before coming into force or after coming into force of the enactment, therefore, the case will not fall under the provisions of the Illegal Dispossession Act and the impugned order has been passed correct appreciation of the law and no interference is called from this Court and therefore this revision application does not merit consideration and is dismissed in limine. However, if the applicant so desires he may knock the doors of the civil Court for any relief he prays for, which may be decided by the civil Court in accordance with law.