' IRFAN SAADAT KHAN, J.---The appellant is aggrieved by the order dated 21-2-2013 passed by the learned First Additional Sessions Judge, Malir, Karachi in Criminal Misc. Application No A9 of 2009 filed by the appellant under sections 3 and 4 of the Illegal Dispossession Act, 2005 ("the Act, 2005") whereby the learned trial Court dismissed the complaint and acquitted the accused/respondents, including the absconder accused Bakht Baland Khan, and directed the applicant for restoration of possession of the disputed property to the respondents.
2. Brief facts of the case are that appellant filed a complaint before the District and Sessions Judge, Malir, Karachi under sections 3, 4 and 5 of the Act, 2005 claiming therein that he is the lawful owner of House bearing No, 67, Street No,2, Saifal Shoro Goth, Gadap Town, Malir, Karachi ("the disputed property") having purchased the same from its original allottee/owner Mst. Bakht Begum wife of Ahmed Jan vide sale agreement dated 4-8-2009 for a total sale consideration of Rs,800,000. The appellant got the possession of the disputed property from the previous owner after paying the entire sale consideration of Rs,800,000 to her and put his own lock at the door of the disputed property. The previous owner of the disputed property, namely, Bakht. Begum assured the appellant/purchaser that if any untoward event in the future in relation to the disputed property took place she will be equally responsible to undo that The appellant was searching for a suitable person to let him out the disputed property. The petitioner agreed to let out the disputed property to one of his relatives who also inspected the disputed property. However, the appellant himself found that the disputed property is occupied by the respondents Nos.1 to 5, who, claiming to be sons of the previous owner, claimed their share in the disputed property. The appellant informed the said respondents that he had purchased the disputed property from its previous owner for a.
Huge sum of Rs,800,000 through sale agreement dated 4-8-2009 and also informed the previous owner of the disputed property about possession of encroachers on the property in question, who herself termed the possession of the respondents on the property in question illegal and unlawful and the mother of the respondents told all the respondents that she is no more the owner as she has sold the same to the petitioner..." However, the said respondents did not change their stance and threatened to kill the appellant that if he did not do away. The appellant left the place and lodged report with the local police and thereafter filed a complaint under sections 3, 4 and 5 of the Act, 2005 before the District and Sessions Judge, Malir, Karachi which was transferred to the First Additional District and Sessions, Malir, Karachi for disposal according to law.
3. After receiving the complaint, report was sought from the concerned S.H.O. The E/O Syed Farasat Hussain of Police Station Sohrab Goth, submitted inquiry report before the learned trial Court on 13- 3-2010, whereafter cognizance was taken and bailable warrants were issued against the respondents. The respondents appeared anti were supplied case papers, Charge was framed on 9th March, 2011 to which they pleaded not guilty and claimed trial. At the trial complainant/appellant Amroze Khan examined himself as Exh. 3 and examined Bakht Begum as Exh.
4. Respondents Nos.1, 3, 4 and 5 were also examined under section 342, Cr.P.C. In which they denied the allegations levelled against them by the appellant/complainant. They also wished to be examined on oath and they also produced their witness namely Asim in their defence. The learned trial Court, framed the following points for determination:
(i) Whether accused/respondents without having any lawful authority entered into the house in question and dispossessed the complainant from the property in question?
(ii) Whether the above accused are, liable to be punished under subsection (2) of section 3 of the Illegal Dispossession Act, 2005?
4. The learned trial Court answered the Point No,(i) in the negative and acquitted the respondents under Point No,2. Hence, this Criminal Acquittal Appeal.
5. I have heard Mr. Salahuddin Khan Gandapur, advocate for the appellant, Mr. Imtiaz Ali Jalbani, A.P.-G. For the State and the respondents Nos. 1, 3, 4 and 5 in person. The said respondents also produced some documents to which no objection was raised and accordingly the same were taken on record. Respondent No,2 was also not present before the trial Court but was acquitted in absentia.
6. Mr. Salahuddin Khan Gandapur, learned counsel for the appellant, vehemently argued that the learned trial Court did not take into consideration that a sanad and Mukhtairkar's certificate was in favour of the previous owner of the disputed property who had sold the same for valuable consideration to the appellant. He also drew my attention to section 2(c) of the Act, 2005 which defines the term "occupier" to mean the person who is in lawful possession of property and to section 2(d), ibid, which defines the term "owner" to mean the person who actually owns the property at the time of his dispossession, otherwise than through a due process of law. Learned counsel referred to page 83 of the file and stated that the deposition of the previous owner Bakht Begum was completely ignored by the trialCourt. He stated with great emphasis that since sanad was in the name of the previous owner Bakht Begum, who had sold the same through sale deed to the appellant, therefore, the appellant became the owner and occupier of the disputed property.
7. Mr. Imtiaz Ali Jalbani, learned A.P.-G., at the very outset, questioned the maintainability of this Criminal Acquittal Appeal on the ground that this is an acquittal appeal on a direct complaint filed by the appellant and, therefore, the appellant should have sought leave of the Court before filing the appeal. In this regard he referred to section 417(2) of the Cr.P.C. On merits, the learned A.P.-G.
States that there are contradictions in the deposition of Bakht Begum which creates doubt in the case and the benefit of the doubt has to be given to the respondents/accused. He stated that the dispute between Bakht Begum and her step sons, respondents 1-5, seems to be of civil nature and the learned trial Court rightly dismissed the complaint filed by the appellant. He also stated that plots given under Sindh Goth Abad Scheme cannot be transferred within 10 years of the grant.
8. The respondents argued their case in person. They stated that they were living in the disputed house since long and were dispossessed due to the complaint filed by the appellant. They submitted that the disputed property was purchased by their father and he put them in possession of the disputed property. They also stated that the appellant in connivance with the area police has lodged a number of criminal cases and have deprived them of another house. They produced some documents to which no objection was raised by the learned counsel for the appellant, therefore, the same were taken on record.
9. When the facts of this case are examined, it reveals that respondents Nos. 1 to 5 are brothers inter se and are step sons of the seller of the disputed property, namely, Bakht Begum. It may be pertinent to mention that two of the respondents have lost their eye sight. This fact was not denied by the appellant. It is alleged that the said Bakht Begum sold the disputed property to the appellant. Amroze Khan. Amroze Khan in his deposition before the trial Court stated as under:-- "1 do not know whether you all respondents had been residing in the subject property since 2007. I do not know whether in 2007 when F.I.R. No,556 of 2007 of Police Station Sohrab Goth was lodged against the respondent Ahmed Khan even at that time respondent had been residing in this property."
10. It is very pertinent to mention that appellant Afroze Khan did not deny the suggestion that the respondents were living in the disputed property since 2007. It is also pertinent to note that nowhere the appellant has stated that he was put in possession of the disputed B property. He only, stated that when he visited the disputed property along with tenant he found that the locks are broken. However, it has not been mentioned as to when he visited the property or when the said locks were found broken.
11. Another witness produced by the appellant admitted in his cross examination that two other properties were sold out by Bakht Begum and her husband, however, it was stated that share of the respondents was given to them, This clearly shows that there is dispute inter se between the parties regarding properties as the respondents claim that House No,318, Baloch Colony, Manghopir Road, Karachi was the property df their real mother which was sold by their father and their step mother Bakht Begum and in lieu thereof the disputed property was given to them c wherein they were living as of their own right.
12. The alleged seller of the property Bakht Begum, who appeared as witness of the appellant, deposed that "she has purchased the subject property from one Sarwer" however, she did not know the name of the father of the said Sarwer or that in which year she had purchased the subject property. She also deposed that when the appellant brought tenant to the subject property it was vacant, however, Amroze Khan, the appellant states that when he went to the subject property along with the tenant he found that his lock was broken and the same was encroached upon by the respondents Nos.1 to 5. Amroze Khan, in his written complaint to S.H.O., Police Station Gulzar-e- Hijri, has stated that the previous owner, after receiving the sale consideration, handed over the possession of the disputed property to him in presence of witnesses. However, he was unable to produce any such witness before the trial Court. On the contrary, respondents witness Muhammad Asim son of Mukhtiar Ahmed, in his deposition clearly stated that "I know the accused/respondent since 2007. The dispute between the parents and the respondents side are continued from the last four years and the respondents are involved in various false cases. Since 2007 these two brothers Mazhar and Ahmed hdving (are) residing in the subject property. Opposite to the subject property there was one another house in which other brothers were residing I do not remember the House number of the other residence."
13. It is evident that even those brothers/respondents who were living in another house were also arrayed as respondents in this case which clearly shows that harassment was caused to the respondents.
14. Before proceeding any further, it would be expedient if the purpose and intent of the promulgation of the Act, 2005 is elaborated. The preamble of the Illegal Dispossession Act, 2005, reads as under:- "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:"
15. Thus, it would be seen that the purpose and intent of promulgation of the Act, 2005 is to curb the activities of the property grabbers, Therefore, the Act applies only to dispossession from immovable properties by property grabbers/land mafia. However, the Act, 2005 does not apply to the alleged cases of dispossession by ordinary persons who cannot, by any stretch of imagination, be termed as property grabbers/land mafia/Qabza Group. This includes cases of disputes over possession of immovable properties between co-owners or co-shares, between landlord and tenants, between persons claiming possession on the basis of inheritance, between persons claiming to be owners of the land on the basis of title documents in their favour, or cases with a background of an on-going private dispute over the relevant property. Reference may be made to 2007 PCr.LJ (Lah) 201.
16. The persons involved in this case i,e, respondents Nos. 1 to 5, are brothers inter se and are step sons of the alleged seller of the disputed property. As stated earlier, two of the respondents have also lost their eye sight. There is no allegation that the respondents Nos.1 to 5, or any one of them is involved in land grabbing or belong to Qabza Group/Land Mafia. It is also evident that there is a dispute between Bakht Begum and her step sons in respect of the disputed property and other properties and it has not been established by evidence that at any point of time possession of the disputed property was ever handed over to the appellant. There appellant cannot claim dispossession at the hands G of the respondents when he was never in actual physical possession of the disputed property. It is also pertinent to mention that in the complaint filed by the appellant under the Act, 2005, in para 7 thereof, the appellant/complainant had stated that "That, on the very next day the petitioner reported the entire incident to Police of local area verbally and made a written complaint also to the area Police for vacating the property in question from the encroachers i,e, Respondents and Qabza Group in area..." However, it has not been shown that any other property in the area was encroached upon by the respondents except the present one which, according to the respondents, belonged to them.
17. It would be advantageous if the relevant observations made by the learned trial Court in acquitting the respondents Nos.1 to 5 are reproduced, which read as under: "25. The witness No,2 of the complainant had admitted one suggestion and replied the same as under: "It is correct to suggest that two other properties have been sold out by her (Bakht Begum) and her husband, however, share of your respondents have (sic) duly been paid."
26. This admission shows the plea of the accused quite true to some extent, if the parents of the respondents have paid any share to the respondents then there must be some explanation in what form and in what shape said share of the respondents have been paid. Though this court exercising jurisdiction under Illegal Dispossession Act is not concerned whether and what dispute is existing between the respondents and their parents and whether the parents of the respondents have paid the shares or not, but since life and liberty of the respondents are in question in this complaint, therefore some admitted facts must be taken into consideration like it is an admitted position that Mst. Bakht Begum is a step mother of all the respondents. The subject property was the property of respondents' step mother's property [this is not correct as House No, 318, Baloch Colony, Manghopir Road, Karachi belonged to the real mother of the respondents] who had sold out other properties as well. The residence of the respondents in the subject property cannot be proved as illegal dispossession of the complainant. There are certain justifiable claims like dispute between legal heirs, between co-sharers, rightful claim, between landlord and tenant, inheritance, contractual agreement etc., but to attract the provision of Illegal Dispossession Act, and its operation, is restricted in its scope and applicability into those cases where dispossasion from immovable property has come about.
27. It is also not out of place to mention here that the step mother, who is also a seller of the present house and witness of the complainant, filed another complain bearing, No, 3 of 2012 which was transferred to learned II Additional District Judge, Malir. In this case complainant Mst. Bakht Bibi (Begum) had alleged that all these five step sons (present respondents) dispossessed the complainant (step mother) from House No, 149, Saiful Goth on 1-12-2011 and occupying the same illegally, whereas in this matter dispossession is alleged against similar respondents and on 21-11- 2012 interim order of handing over possession of House No,67 is obtained from this Court.
28. Again the plea of the respondents that they are subject to victimization sounds true. Further, complainant's counsel produced on record one "Aak Nama" by which real father of the respondents declared all the real sons and a daughter "Aak" from his property. Once Mst. Bakht Begum replied the suggestion that we have given share to the respondents and on the other hand "Aak Nama" is also produced, ..."
18. In view of the above discussion, the learned trial Court dismissed the complaint under Illegal Dispossession Act of the appellant was dismissed and directed the complainant to restore the possession of the disputed property to the respondents.
19. Learned counsel for the appellant relied on the case reported as Inayat Khatoon v. Muhammad Ramzan (2012 SCM R 229) to counter the argument of the learned A.P.-G. That since this is an acquittal appeal emanating from a direct complaint filed by the appellant, therefore, the appellant should have sought leave of the Court before filing the appeal. In this regard he referred to section 417(2) of the Cr.P.C. In the cited judgment it has been held by a Division Bench of the Hon'ble Supreme Court that report under the Act, 2005 can be termed as complaint under section 154, Cr.P.C. And the same cannot be equated with a private complaint to be processed under section 200, Cr.P.C.
Thus, the objection raised by the learned A.P.-G. Is repelled.
20. So far as the question of transfer of land allotted under the Goth Abad Scheme is concerned, it is surprising that no date is mentioned on the Sanad issued in favour of Bakht Begum. However, since I have already reached the conclusion that this appeal is not maintainable and even on Merits also deserves to be dismissed, therefore, I refrain from making any comments on this aspect of the case.
21. The respondents have filed copy of a judgment dated 14-11-2009 passed in Cr. Case No,550 of 2007 which shows that this case was also lodged by the father of the respondents against the respondents under sections 448/506-B, P.P.C. At Police Station Sohrab Goth in which also the respondents were acquitted.
22. What transpires from the above discussion is that neither the respondents are members of some land mafia or Qabza group nor they have illegally dispossessed any one from the disputed property. The Act, 2005 was specifically promulgated for curbing the illegal activities of the land mafia/Qabza Group/land grabbers and thus is only applicable to those cases where it is shown that the accused belong to any of the above category i,e, land mafia/Qabza Group/land grabbers and have illegally dispossessed someone to grab his property. The appellant has miserably failed to show that at any point of time he was put into physical possession of the disputed property from where he was dispossessed by the respondents. On the contrary, it has been established by cogent evidence that the respondents are living in the disputed property since 2007. Therefore, the provisions of the Illegal Dispossession Act, 2005 are not attracted to the present case. It may be clarified that the Act, 2005 would come to the rescue of not only the owner of an immovable property but also to the occupier of an immovable property. The dispute between the appellant, Bakht Begum on the one side and the respondents 1 to 5 on the other side clearly is a dispute of civil nature and the same has' to be decided by a civil Court having jurisdiction.
23. The upshot of the above discussion is that this Criminal Acquittal Appeal is found to be devoid of any merit and is, accordingly, dismissed on the ground of maintainability as well as on merit. The appellant is directed to restore the possession of the disputed property to the respondents within seven days. Learned trial Court is directed to ensure that the Order of this Court is complied with in letter and spirit without any further delay.