' IMAM BUX BALOCH, J.---Through this. Criminal Revision, the applicant assailed the order dated 13- 12-2010 passed by learned IV-Additional Sessions Judge, Karachi East in Criminal Complaint No,223 of 2006, whereby the learned Trial Court has dismissed the complaint filed by the applicant under, the Illegal Dispossession Act, 2005 for restoration of possession of H.No,37-C, Tipu Sultan Road, Muhammad. Ali Cooperative Housing Society, Karahi.
2. Brief facts leading to this Revision Application are that the applicant was a tenant- of one Mst.
Hajira Begum (now deceased) in the year 1981 against a monthly rent of Rs,4,000 per lease agreement dated 16-3-1981. It is pertinent to mention here that the front portion of said Bungalow consisting of four bedrooms, dining-cum-drawing, kitchen, garage and one servant quarter with lawn. The lease agreement was for a period of 3 years starting from 1-4-1981. According to condition 4 of the said agreement after 3 years the applicant had to increase rent by 10%. It is stated by the applicant in his complaint filed under sections 3, 4, 6, 7, 8 of Illegal Dispossession Act, 2005 that during the period of 1981 to 1989 applicant/complainant entered in three agreements with Mst. Hajira Begum. It is stated that after death of Mst. Hajira, her son Aga Khalid Ahmed entered with the applicant with a new rent agreement dated 17-4-1989 at Rs,6,000 per month. Aga Khalid Ahmed also expired in the year 1989 and it is stated that Mst. Farida Gul wife of late Aga Khalid Ahmed on one or other pretext started causing harassment to the applicant. It is stated by the applicant that on 8-1-2010, he along with his wife went to the house of their son-in-law namely Intezar-ul-Haq and passed a night there and it was informed by his servant that some gunda elements had entered in the rented house of the applicant. He further stated that at the instance of respondent Farida Gul the said elements broken the locks of the premises and took forcible possession of the said premises and removed the articles and forcibly occupied the said premises.
He further asserted that by order of learned Sessions Judge Karachi East has registered an F.I.R.
No,140 of 2010 under sections 448/506/504, P.P.C. On 7-5-2010 at Police Station Bahadurabad. He further stated that said F.I.R. Was duly investigated by the police and ultimately police submitted a report for cancellation of case under "C" class and the learned Magistrate agreed with the recommendations of the police and allowed the summary under section 173, Cr.P.C. It is pertinent 'to mention here that applicant has not challenged the cancellation of F.I.R. Before any competent Court of law, which attained finality. He then filed a complaint under Illegal Dispossession Act against respondent. Learned Trial Court after hearing the applicant dismissed the complaint, hence the applicant has impugned the said order in the instant Criminal Revision Application.
3. I have heard learned counsel for the applicant Mr. Muhammad Rafi Kamboh Advocate and Mr. Abdullah Munshi Advocate for the respondent.
' Learned counsel for the applicant contended that the learned trial Court wrongly dismissed the complaint of the applicant though applicant was ousted from the rented premises forcibly by respondent through her men. The act of the respondent comes within the definition of Illegal Dispossession Act, 2005. He further contended that every individual illegally dispossessed from the property could seek his remedy under the Illegal Dispossession Act, 2005 without prejudice to other remedies simultaneously available to him under other laws. He further contended that any aggrieved person could avail remedy without prejudice of general law and there is no bar for availing of such remedy under the said Act. He further contended that though F.I.R. Which was lodged by the applicant was ultimately disposed of under "C" class and that he has not challenged such order, of learned Magistrate but he avail remedy under the Illegal Dispossession Act, 2005. He further contended that he has filed direct complaint which is pending in the Court of a Magistrate.
He has placed his reliance on the following case-laws:-
(i) ABDUL HAFEEZ V. ADDITIONAL DISTRICT JUDGE-VII, SOUTH KARACHI AND 2 OTHERS (PLD 2009 Karachi 350)
(ii) MST. MEHMOODA AFTAB V. MARGHOOB HUSSAIN (2010 MLD 503).
(iii) HABIBULLAH KHAN V. THE STATE (2000 PCr.LJ 1898).
(iv) GHULAM NABI V. THE STATE (PLD 1966 (W.P) Lahore 131)
(v) THE STATE V. GHULAM JAFFAR (PLD 1970 Peshawar 66).
(vi) MUHAMMAD ASHRAF AND OTHERS V. THE STATE (1995 SCMR 626).
(vii) SAKHI DOST JAN V. THE STATE (PLD 2000 Quetta 26).
(viii) STATE OF MADHYA PRADESH V. VEERESHWAR RAO AGNIHOTRI (AIR 1957 SC 592).
(ix) THE STATE V. N.H. PURI AND OTHERS (PLD 1959 (W.P) Karachi 392).
(x) NAWAB FEROZUDDIN V. THE STATE (2009 MLD 94).
(xi) HABIBULLAH AND OTHERS V. ABDUL MANAN AND OTHERS (2010 YLR 930).
5. On the other hand Mr. Abdullah counsel for the respondent urged that the applicant has vacated premises and handed over possession to the respondent. The respondent is aged lady having no accommodation except the premises which she had inherited from her late husband Aga Khalid Ahmed. He further contended that earlier F.I.R. Lodged by the applicant was duly investigated and ultimately said F.I.R. Was disposed of under "C" class by Magistrate while passing order under section 173, Cr.P.C. The applicant has not challenged such order which ultimately intact and finality attached to such order. He contended that applicant was satisfied with such order of the Magistrate and investigation conducted by police meaning by that no such offence has been committed ' by the respondent. He further contended that complaint under the Illegal Dispossession Act, 2005 filed with mala fide intention and with ulterior motives by the applicant in order to harass the respondent. He further contended that no case of Illegal Dispossession Act, 2005 is made out and the learned Trial Court rightly dismissed the complaint under the Illegal Dispossession Act, 2005. He has placed his reliance on the case of ZAHOOR AHMED AND OTHERS V.
THE STATE (PLD 2007 Lahore 231) and argued that respondent does not belong to property grabbers, Qabza group or land mafia in view of the judgment of Lahore High Court. He has placed his reliance on the case of BASHIR AHMED V. ADDITIONAL SESSIONS JUDGE FAISALABAD AND OTHERS (PLD 2010 SC 661). He further contended that if the applicant was aggrieved by any act of the respondent he has right to take back the possession of the premises under the provisions of Civil Procedure Code, but the applicant tried to transform bona fide civil dispute between the parties into criminal case so as to bring weight of criminal law and process to bear upon respondent in order to extract concessions from her. He further argued that such act of the applicant is abuse of the process of law which could not be allowed to be perpetuated. He also placed his reliance on the cases of:-
(i) RAHIM TAHIR V. AHMED JAN AND OTHERS (PLD 2007 SC 423).
(ii) SAMI UL HAQ KHILJI V. ALI RAZA RIZVI AND OTHERS (PLD 2010 Lahore 394).
(iii) MUHAMMAD AKRAM AND OTHERS V. MUHAMMAD YOUSAF AND OTHERS (2009 SCMR 1066)
(iv) MUMTAZ HUSSAIN V. DR. NASIR KHAN AND OTHERS (2010 SCMR 1254) ' and summed up his arguments that no case is made out under the Illegal Dispossession Act, 2005 and the learned Trial Court rightly dismissed such complaint of the applicant.
6. I have considered the submissions advanced at the bar and also perused the file. Admittedly the applicant has lodged an F.I.R. No,140 of 2010 with Bahadurabad Police regarding the premises in question and the said F.I.R. Was duly investigated and police has disposed of such F.I.R. Under "C" class and the learned Magistrate has approved such summary and passed order under section 173, Cr.P.C. It is also admitted fact that the applicant has not challenged such order which means that he was satisfied with such order of the learned Magistrate. From the averments of complaint under the Illegal Dispossession Act, 2005, it transpires that the applicant has not availed remedy which was available with him under Civil Procedure Code even then he has filed a complaint regarding the same offence. For ready reference the Illegal Dispossession Act, 2005 is reproduced as under:-- ACT XI OF 2005 ILLEGAL DISPOSSESSION ACT, 2005 An Act to curb the activities of the property grabbers (Gazette of Pakistan, Extraordinary, Part I, 7th July, 2005] ' The following Act of Majlis-e-Shoora (Parliament) received the assent of the President on 30th June, 2005, is hereby published for general information: ' Whereas it is expedient to protect the lawful owners and occupiers of immovable properties from their illegal or forcible dispossession therefrom by the property grabbers; ' It is hereby enacted as follows:-
(1) Short title, extent and commencement.---(1) This Act may be called the Illegal Dispossession Act, 2005.
(2) It extends to the whole of Pakistan.
(3) It shall come into force at once.
(2) Definitions.---In this Act, unless there is anything repugnant in the subject or context,
(a) "Court" means the Court of Session;
(b) "Code" means the Code of Criminal Procedure, 1898 (Act V of 1898);
(c) "occupier" means the person who is in lawful possession of a property;
(d) "owner" means the person who actually owns the property at the time of his dispossession, otherwise than through a process of law; and
(e) ' "property" means immovable property.
(3) Prevention of illegal possession of property etc.---(1) 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 owners or occupier of such property.
(2) Whoever contravenes the provisions of the subsection (1) shall without prejudice to any punishment to which he may be liable under any other law for. The time being in force, be punishable with imprisonment which may extend to ten years and with fine and the victim of the offence shall also be compensated in accordance with the provision of section 544-A of the Code.
(4) Cognizance of offence.---(1) Notwithstanding anything contained in the Code or any law for the time being in force, the contravention of section 3 shall be triable by the Court of Session on a complaint.
(2) The offence under this Act shall be non-cognizable.
(3) The Court at any stage of the proceedings may direct the police to arrest the accused.
(5). Investigation and procedure.---(1) Upon a complaint the Court. May direct the officer in charge of a police station to investigate and complete the investigation and forward the same within fifteen days to the Court: Provided the Court may extend the time within which such report is to be forwarded in case where good reasons are shown for not doing so within the time specified in this subsection.
(2) On taking cognizance of a case, the court shall proceed with the trial from the day to day and shall decide the case within sixty days and for any delay, sufficient reasons shall be recorded.
(3) The Court shall not adjourn the trial for any purpose unless such adjournment is in its opinion necessary in the interest of justice and no adjournment shall in any case be granted for more than seven years.
(6) Power to attach property.---(1) If the court is satisfied that none of the persons are in possession immediately before .The commission of the offence, the Court may attach the property until final decision of the case.
(2) In case of attachment, the methods of its management, safeguard against natural decay or deterioration shall be determined by the court.
(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.
(2) Where the person against whom any such order is passed under subsection (1) fails to comply with the same, the Court shall, notwithstanding any other law for the time being in force take such steps and pass such order as may be necessary to put the owner or occupier in possession.
(3) The court may authorize any official or officer to take possession for securing compliance with its orders under subsection (1). The person so authorized may use or cause to be used such force as may be necessary.
(4) If any person, authorized by the Court, under subsection (3) requires police assistance in the exercise of his power under this Act, he may send a requisition to the officer in charge of a police station who shall on such requisition render such assistance as may be required.
(5) The failure of the officer in charge of police station to render assistance under subsection (4) shall amount to misconduct for which the Court may direct departmental action against him.
(8) Delivery of possession of property to owner etc.---(1) On conclusion of trial, if the court finds that an owner or occupier of the property was illegally dispossessed or property was grabbed in contravention of section 3, the Court may at the time of passing order under subsection (2) of that section, direct the accused or any person claiming through him for restoration of the possession of the property to the owner or as the case may be, the occupier, if not already restored to him under section 7.
(2) For the purpose of subsection (1) the court may where it is required, direct the officer in charge of the police station for such assistance as may be required for restoration of the possession of the property to the owner or as the case may be the occupier.
(9) Application of Code. Unless otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1898 (Act V of 1898) shall apply to proceedings under this Act.
7. In the case of Zahoor Ahmed (supra), the Full Bench of Lahore High Court has observed as under:-- ' After enactment of the Illegal. Dispossession Act, 2005 we have noticed that although this Act was restricted in its scope and applicability to illegal dispossession from immovable properties only by a particular class of persons who could qualify as property grabbers/Qabza Groups/land mafia yet the said Act is now being invoked and utilized by all kinds of aggrieved persons in all kinds of cases of dispossession from immovable properties even by individuals who have no credentials or antecedents of being property grabbers or being members of a Qabza Group or land mafia. Such abuse and wrong utilization of the Illegal Dispossession Act, 2005 has been found by us to be completely nugatory to its contents as well as objectives. It has appeared to us that through a mistaken or deliberate misuse of the Illegal Dispossession Act, 2005 the legal remedies already occupying the field against run of the mill and ordinary dispossession from immovable properties have been dispossessed of the field and that surely was not the intent or spirit of the Illegal Dispossession Act, 2005.
' The Short Title of the Illegal Dispossession Act, 2005 itself makes it quite clear that the said Act is "An Act to curb the activities of the property grabbers" and the Preamble to the said Act further clarifies this position by proclaiming in no uncertain terms that "Whereas it is expedient to protect the lawful owners and occupiers of immovable properties from their illegal or forcible dispossession therefrom by the property grabbers" (italics have been supplied by us for emphasis). Although the term "property grabbers" has not been defined in the Illegal Dispossession Act, 2005 yet the intention of the legislature in this respect is quite evident from the Working Paper prepared by the Federal Ministry of Law, Justice and Human Rights and submitted before the Parliament with the draft of the proposed legislation as well as from the parliamentary debates on the proposed legislation. Both such sources are generally recognized as valid and useful sources which may be utilized by a Court of law for the purpose of interpreting a piece of legislation by appreciating the spirit in which it was introduced passed and enacted and for understanding the mischief which was sought to be suppressed.
8. Even the Full Bench of Lahore High Court has issued guidelines for the subordinate Courts, which are reproduced as under:--
(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 of the basis of competing title documents, contractual agreements or revenue record or cases with a background of an ongoing 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.
9. In similar situation honourable Supreme Court in the case of Bashir Ahmed (supra) has held as under:-- ' It has been conceded before us by the learned counsel for the petitioner that no material is available with the petitioner to establish that respondents Nos. 2 to 4 belonged to any Qabza group or land mafia or that they had the credentials or antecedents of being property grabbers.
In view of the discussion made above the impugned acquittal of respondents Nos. 2 to 4 recorded by the learned Additional Sessions Judge, Faisalabad upon acceptance of their application submitted under section 265-K, Cr.P.C. Has been found by us to be entirely justified and dismissal of the petitioner's writ petition by the learned Judge of the Lahore High Court, Lahore has also been found by us to be unexceptionable. In the circumstances of this case mentioned above we have entertained an irresistible impression that through filing of his complaint under the Illegal Dispossession Act, 2005 the petitioner had tried to transform a bona fide civil dispute between the parties into a criminal case so as to bring the weight of criminal law and process to bear upon respondents Nos. 2 to 4 in order to extract concessions from them. Such utilization of the criminal law and process by the petitioner has been found by us to be an abuse of the process of law which cannot be allowed to be perpetuated.
10. In the case of Sami ul Haq (supra) the Single Judge of the Lahore High Court has held as under:- - ' 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 fourthly that such person or persons belonged to the group of land grabbers. Private complaint can only be entertained if there is prima 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.
' 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.
11. Applicant has failed to establish that at the relevant time he was in possession of the said premises as tenant even the applicant has not challenged such tenament before any competent Court of law. In the case of Mumtaz Hussain (supra) the honourable Supreme Court has held as under:-- ' 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. The similar procedure is being adopted by Magistrate, while exercising powers conferred upon him under section 145 of the code, which is normally required to be adopted in these proceedings. In the case of Shah Muhammad v. Haq Nawaz PLD 1970 SC 470, it has been observed at page 481 as under:- "The primary concern of the proceedings under the Criminal Procedure Code is to prevent breach of peace arising out of a dispute concerning 'land' or 'water'. These proceedings though concerning the subject matter of dispute between the contending parties do not concern themselves with the adjudication of their rights in the property. The resolution of the dispute lies exclusively in the realm of a Civil Court."
' At page 482 it has been further observed as under:-- "In such a case a 'dispute' may well arise as to possession and attract the jurisdiction of a Magistrate under section 145 of the Criminal Procedure Code. Cases in which a perpetual or temporary injunction has been issued restraining the defendant from interfering with the possession of the plaintiff stand, whoever on a different footing. A dispute as stated in the Calcutta Full Bench case means an actual disagreement. There can be a disagreement only if either party can ostensibly lay claim to possession of the subject matter of the dispute. But if the rights of the parties have already been finally determined and possession has been delivered to the plaintiff in execution of the decree or permanent injunction has been granted in his favour restraining the defendant from interfering with his possession there is then no scope of or any actual disagreement between the parties concerning possession of the subject matter of the suit The conclusion, we have reached thus, is that a case in which a civil Court is already seized with the subject matter of dispute and has passed an order regulating possession thereof or a case in which a decree for possession has been granted or a permanent injunction granted restraining the opposite party from interfering with the possession of the decree holder fall outside the jurisdiction of a Magistrate under section 145, Cr.P.C."
12. The case-law relied upon by the learned counsel for the applicant is not helpful to the present case.
13. For the foregoing reasons, I am of the considered view that applicant has failed to establish his case before the Trial Court and the learned Trial Court rightly dismissed the complaint under the Illegal Dispossession Act, 2005 I see no merits to interfere with the impugned order of learned Trial Court which is well reasoned, consequently, this Revision Application having no merits and is dismissed.