1. ' HASAN FEROZ, J.---The above Criminal Revision Application has been filed by applicant Dr. Baber Yaqoob Sheikh being aggrieved and dissatisfied with the impugned order dated 30-3-2013 as passed by the learned Ist Additional District and Sessions Judge, Karachi East whereby dismissing the Complaint/Application under sections 3/4 of Illegal Dispossession Act, 2005 with an observation that applicant/ complainant has miserably failed to show any title document in respect of the shop in question which could show that he is the owner of the shop in question.
2. In nutshell on 5-1-2013 the applicant/complainant made appearance before the court by filing Complaint/ Application under sections 3/4 of the Illegal Dispossession Act, 2005 stating therein that he is bona fide owner of the property bearing Shop No,4, 2nd Floor approximately measuring 900 Sq. Yds. His father in year 1980 had purchased the said shop on his behalf because he was student studying in the Medical College in Lahore and he was only 18 years of age. He completed his M.B.B.S. From King Edward Medical College at Lahore and then he went to U.K. For specialization in his field of surgery from Royal College of Surgeons in U.K. He didn't come to Pakistan but he authorized his cousin brother namely Syed Hassan Masoom to look after his shop and his said cousin brother used to come to see the shop once in a month but unfortunately he was sick and therefore the respondent took advantage of this and had occupied the said shop by breaking open the lock in year 2005. In the last week of October, 2012 he came to Pakistan from U.S.A. After completing his business in U.S.A. And wanted to establish his clinic in the said shop and when he arrived at Taj Medical Complex he was shocked to see that the respondent No,1 is running a medical shop under the name and style of Tayyab Medical Store in half portion whereas the remaining half portion was locked by replacing the lock and new locks were there. He moved an application to the office of the maintenance society who advised that the police will solve this problem. He through his counsel had sent notice dated 18-12-2012 but to no result and so he filed the complaint/application under reference, praying therein as under:-- "It is respectfully prayed that this honourable Court be pleased to pass direction an order in the fallowing terms:- ' To pass ejectment order against the respondent/accused from the property bearing shop No,4 and to take possession of the said quarter from the respondent or any person claiming to be in possession on his behalf and hand over/restore the same to the complainant/owner above- named.
(ii) To pass an order to be booked the respondent and punished him under section 3 of the Illegal Dispossession Act, 2005.
(iii) To pass an order against the accused person in respect of compensation to the complainant under section 3(ii) of the said Act for causing damage to the said quarter.
(iv) Any other relief or reliefs may be awarded which this honourable Court deem fit and proper".
2. ' Perusal of the impugned order speaks that the learned trial Court had passed order whereby directing the S.H.O. To make investigation and to submit his report and such investigation was got carried out by the S.H.O. Brigade Police Station through S.I. Asghar Ali Chohan of said police station and as per report filed it was reported that applicant is owner of the shop in question while the respondent No,1 namely Haris Hafeez had failed to produce any evidence about its ownership over the shop in question. It further appears that the learned trial Court who was required to have formed an opinion in terms of section 5(2) of the Illegal Dispossession Act, 2005 and at such stage appearance was made by Mr. Muhammad Asghar, Advocate on behalf of respondent No,1 who filed legal objection/counter-affidavit and wherein certain objections were raised as to the competence of the complaint/application under sections 3/4 of the Illegal Dispossession Act, 2005 and the learned trial Court after hearing has passed the impugned order whereby the said complaint/application under the Illegal Dispossession Act, 2005 was dismissed with captioned observation; hence this revision.
3. ' Mrs. Rifat Bano, learned counsel for applicant has mainly contended that the impugned order is illegal, without jurisdiction, beyond the facts and the same has been passed in flagrant violation of law as according to her in relation to the complaint/application filed under the Illegal Dispossession Act, to which is a special law, special procedure has been provided and so according to her unless the especial law itself indicates about the application of certain penal provisions, the same cannot be applied or set into motion and so according to her the procedure adopted by the learned trial Court in hearing the counsel for the respondent No,1 at the initial stage and so also entertaining the objections in shape of counter affidavit and then making reliance on the same actually has resulted in serious miscarriage of justice and further according to him after the receipt of report by the Incharge of the Police Station in compliance to subsection (1) of section 5 of the. Illegal Dispossession Act, 2005 the trial Court was supposed to have taken cognizance of the matter since the applicant has stated clearly and candidly that he is owner of the subject shop and the police report also support his stand and she has contended that under section 2(d) of the Illegal Dispossession Act, 2005 the term owner has been defined to be 'owner' means the person who actually owns the property at the time of his dispossession, otherwise than through a process of law. She has further contended that once a complaint is filed under the Illegal Dispossession Act, 2005 then a presumption could be drawn that the person approaching to the court has got some right to the property and in criminal law there is no prescribed limitation provided and so view taken by the learned trial Court as to non-filing of the document is erroneous and according to her after the receipt of report of police to which being in consonance with the stand taken by the applicant in the complaint/application cognizance of the offence ought to have been taken and then it was pursuant to recording of evidence it was to be seen as to whether the applicant was having the documents of the property in dispute or otherwise and she has prayed to set aside the impugned order and to remand the case back to the learned trial Court to proceed in accordance to law and in support of her submissions he has relied upon the decisions of the Honourable superior courts as appeared in PLD 1996 SC 152 (Abdul Latif v. Bagga Khan and another) PLD 1962 SC 249 (Abdur Rashid and others v. The State and others).
4. ' On the other hand the learned counsel appearing on behalf of the respondent No,1 has supported the impugned order and according to him there is much difference in between the term 'Owner' and 'Occupier' and there was no case made-out to attract to the provisions of the Illegal Dispossession Act, 2005 more-so, when in the very complaint/application no specific date of dispossession was shown and so according to him this in itself was sufficient ground to dismiss the complaint/ application to which was filed by the applicant under the Illegal Dispossession Act, 2005 as accordirg to him the respondent No,1 is a lawful occupier of the said shop and so no question has arisen to illegally dispossess him from the property in question and he has contended that applicant has himself stated that he was not here at Karachi and was firstly at Lahore and then he left for abroad for higher education.
5. ' Mr. Abrar Ali Kitchi, APG appearing for the State, however, has supported the impugned order and has contended that there is sizeable delay in filing the complaint and the alleged dispossession was shown in year 2005 but without mentioning any date and so according to him in absence of filing the title documents coupled with showing specific dispossession from the immovable property in a particular manner and also there was no witness cited in the complaint to show that he had seen to the respondents grabbing the property or dispossessing the applicant and so also in absence of pre requisite for which the law of Illegal Dispossession Act was enacted and enforced, the learned trial Court was justified in passing the impugned order. However, he has conceded that the trial Court was not required to have entertained objection from the respondent No,1 earlier to take cognizance of the matter or afford him chance of hearing as according to him it was once the cognizance of the matter taken then the respondent No,1 was justified to make appearance and to file reply and/or application.
6. ' I have heard the learned counsel at length and have consulted the law on the subject, so also minutely examined the impugned orders and I am of the view that provision of Illegal Dispossession Act, 2005 being a special law is only applicable in cases wherein the person complained against was found to be not having title thereto, second that he has taken possession by use of force, thirdly that he had taken over the property without due course of law and fourthly that such person or persons belonged to group of land grabbers. Further Application/Complaint under this Act, 2005 can only be entertained if there is prima facie material against nominated accused and to my view civil nature dispute in no way can be allowed to be converted into criminal offence and in this respect I may refer to the dictums of honourable Apex Court as appeared in PLD 2010 SC p.661 wherein it was laid down that 'Civil dispute cannot be allowed to be converted into criminal offence by implicating one or more co-owners and this would be misuse of the provisions of the Illegal Dispossession Act, 2005' and to my view if such practice is allowed to be continued the same would amount to misuse of provisions of Illegal Dispossession Act, 2005.
7. Further provision of section 3 is applicable only to land grabbers. Further for the purposes of determination so as to appreciate as to whether case has been made out attracting the provisions of section 3 of the Illegal Dispossession Act, 2005 the court was required to examine, firstly that the property was immovable property, secondly that the person was the owner of the property or same was in his lawful possession, thirdly that the accused entered into or upon property unlawfully and fourthly that such entry was with the A intention to dispossess. Very fact that power of taking cognizance in respect of offence falling under the provisions of Illegal Dispossession Act, 2005 had been exclusively devolved upon the Court of Session had negated the application of section 190, Cr.P.C. And in view of specific and exclusive mandate of the Court of Session to take cognizance and try the offences punishable under Illegal Dispossession Act, 2005 the use of the Magisterial Courts as a post office, could not be attributed to the wisdom of legislature. The word 'complaint' is defined in S.4 Clause (h) of Code of Criminal Procedure, it is a statement of accusation or allegation of fact or information put forth to a Magistrate inferring commission of offence to be taken cognizance of. A complaint is just a statement of allegation to set the law in motion and failure to furnish details of the occurrence cannot by itself means that what is stated at the trial subsequently is false or baseless. No specific form is prescribed in law so as to put in motion the Criminal Law through a complaint. The procedure before the court as to the cognizance of complaint would be the same as provided in the Code of Criminal Procedure, 1898. The essential.
8. Requirement of section 200 Cr.P.C. Is that the substance of the complaint shall be reduced to writing and shall be signed by the complainant. Section 200 Cr.P.C. Makes it clear that the examination of the complainant can only succeed and not precede the taking of cognizance, for, it is an act to be done after the taking of cognizance, whatever might be meaning of the word cognizance or whatever might amount to taking cognizance and my this view is supported by the dictum reported as PLD 1960 Dacca p.631 and even there is no requirement of law that the court on receipt of a direct complaint must hold preliminary inquiry. If a prima facie case is made out, court can take cognizance of the same after examination of the complainant on Oath and if no such case is made out, Court is competent to dismiss the same (2001 PCr.LJ p.914). As mentioned supra section 4 of the Illegal Dispossession Act, 2005 provides that cognizance was to be taken directly by the Sessions Court on a complaint, berefore there was no need to comply with the procedure laid down in section 190, Cr.P.C. By making complaint before Magistrate directly, who after entertaining the same was required to transmit the same to the Court of Session. Further I am of the view that when section 193, Cr.P.C. Itself provides direct cognizance for a complaint, it could not create hurdle in the way of Sessions Court for taking cognizance. A private complaint could be dismissed at preliminary stage under sections 203 and 204(3), Cr.P.C. Accused could also be acquitted and private complaint can be dismissed by the Sessions Court at any stage of the trial under section 265-K and section 265-H(i), Cr.P.C. As regards the contention of the learned counsel for the applicant as to noncompliance of sections 200 and 202, Cr.P.C. I may refer to the dictum as reported in PLD 2006 Kar. P. 221 and 2007 PCr.LJ p.891 wherein it was settled that provision of section 200, Cr.P.C. In no manner bind the court to, record the evidence of complainant despite the fact that the accusations made in the complaint do not constitute an offence or the act complained of was not an offence, at the time of occurrence. Section 5 of the Illegal Dispossession Act, 2005, itself had given discretion to the court to satisfy itself as to the competence and maintainability of the complaint. No doubt spirit of law with reference to the provisions of Illegal Dispossession Act, 2005 is that 'Two persons have been defined, who can approach the court of competent jurisdiction for enforcement of law (i) owner and the other is (ii) occupier and further it has been laid down specifically that the owner must be 'recorded owner' as has been laid down in the dictum as appeared in PLD 2008 Quetta 27. Further it is the essentials ingredients of law with regard to section 2(d) of the Illegal Dispossession Act, 2005 that 'owner, who is claiming the property in dispute must prove his status as lawful, in case he has been dispossessed from the property' and to my view where no evidence or document were shown or produced by petitioner to show that he was owner or occupier of the property in question within the meaning of section 2(c) and (d) of Illegal Dispossession Act, 2005 the very filing of the complaint/application in no way can be said to be justified and further in absence of any document showing title of applicant/complainant or his occupation as lawful owner or occupier of property in question, his claim of its being lawful occupier could not be acceded to and my this view gets support from the dictum as appeared in our own Honourable High Court dictum as appeared in PLD 2008 Karachi p.94. Further I may observe here that 'heavy duty and responsibility lies upon trial Court to decide the matter with sound reasoning and application of mind after occupying with due procedure provided under the law itself and so also in cases where the matter is brought before the court involving Illegal Dispossession Act, 2005 the trial Court is required to act as a sieve and to filter-out those complaints which do not disclose requisite. Criminal intent. The courts which are authorized to try cases under the 2005-Act have responsibility to see that person named in complaint has a case to answer, before they are summoned to face trial and that a criminal court is required and permitted to form a prima facie opinion of the title for the purpose of 2005-Act and disposal of the complaint and that is without prejudice to the final and authoritative adjudication on the matter by the civil court and in this context I may refer to the dictums as appeared in PLD 2011 SC p.181, 2010 YLR P.1982, PLD 2011 Karachi 624. There is yet another aspect of the matter to which may not lost at this juncture is that under the scheme of 2005-Act there seems to be no restriction in filing of second or third complaint on the same subject under sections 3/4 of Illegal Dispossession Act, 2005 if the earlier complaint had not been decided on merits and in this context I may refer to the dictum as appeared in 2010 YLR 3161.
9. ' Having deep glance to the various provisions of 2005-Act and so also taking into consideration that the provisions of section 5(1) are broader in a sense that it empowers the court to have the matter investigated for any purpose as may relate to the complaint and be germane or relevant under the 2005 Act. Further section 202, Cr.P.C. And section 5(1) of the 2005 Act, are to be considered and read together, the legislature's intent behind the later provision is clear and unambiguous.
10. ' Perusal of the impugned order reveals that it was admittedly passed pursuant to the receipt of investigation report from the police station concerned, so also pursuant to affording chance of hearing extended to the counsel for the respondent No,1 whereas the learned trial Court was supposed to have itself formed an opinion and appreciate as to whether prima facie complaint was made out within the four corners of law taking cognizance of the offence as the complaint in itself speaks that alleged dispossession took place in year 2005 whereas the complaint was filed after lapse of several years. In the dictum as appeared in 2011 PCr.LJ. Lahore p.487 wherein it was held that "After going through the complaint and perusal of the record it is clear that the complainant has not given any material particulars of the alleged act of dispossession. It was essential for the complainant to give all the material particulars with regard to act of Illegal Dispossession in the complaint itself In the absence of material particulars, exact time and date of the alleged act of dispossession, no roving inquiry is to be conducted by the learned trial Court to ascertain whether or not the complainant was dispossessed in terms of Illegal Dispossession Act, 2005. In this dictum it was also laid down that there are various remedies available to a person who claims that he has been illegally dispossessed from immovable property both on the civil and criminal side. A new class of persons has emerged in our society who are referred to as property grabber or in local parlance as Qabza Group. 'Illegal Dispossession Act, 2005 was enacted to take to task those persons who have antecedents of grabbing property. It is essential to differentiate between a case where a person is accused of a solitary act of illegal dispossession and where a person proceeded against is a professional land grabbers and is notorious for grabbing property as and when an opportunity presents itself. In this case there is not an iota of evidence to establish that respondents Nos. 2 and 3 had any characteristics or antecedents of a land grabber. The spirit of Illegal Dispossession Act, 2005 is to proceed against persons who are professional land grabbers or members of land mafia and not against a person accused of a solitary act of illegal dispossession".
11. ' Sum up of the above discussion is that the revision application at this stage since failed is hereby dismissed, however, the applicant if aggrieved or advised so, is at liberty to file fresh complaint/application under the 2005-Act if he will be able to fulfil all the prerequisites of law by annexing the title documents and so also this order in revision would not be an impediment in the way of the applicant/complainant to move afresh under the 2005 Act or to secure his right under the law available to him. In terms of above the revision in hand stands disposed of.