' FAROOQ ALI CHANNA , J.---The appellant Sarfaraz Ahmed through this Criminal Acquittal Appeal has assailed the order dated 23-10-2013 passed by learned lInd Additional Sessions Judge, Karachi South in Criminal Miscellaneous Application No. 495 of 2013, whereby acquitting the respondent under section 265-K, Cr.P.C. Observing that the appellant has failed to prove his title of ownership over the subject property and signature of Nooruddin was not available on the last page of sub- lease executed in favour of appellant.
2. Learned counsel for the appellant has contended that the trial Court has passed the order without recording the evidence of prosecution witnesses, whereas findings of the trial Court are based on mere assumptions and presumptions and the same are also contradictory to his earlier findings recorded during Preliminary Enquiry. It is further contended that the learned trial Court has exercised its jurisdiction in excess by observing that the appellant is not owner of property whereas the question of ownership of the property is to be decided by the Civil Court in civil proceedings and not in criminal proceedings hence the impugned order is illegal, suffering from legal infirmity and liable to be set aside.
3. The respondent who is present in person, submits that her ex-husband Nooruddin had purchased the subject property and after dissolution of marriage she along with her children is residing in the subject property, however she admits that she has no title documents to support her claim, that property was mutated in the name of her ex-husband Nooruddin.
4. Learned D.P.-G. Has submitted that the question of ownership is to be decided by the Civil Court, the trial Court in the criminal proceedings under the Illegal Dispossession Act has to only determine as to whether the complainant was dispossessed illegally or the respondent is occupying the subject property without lawful authority and such controversy can only be resolved after recording the evidence of both the parties, therefore, the impugned order acquitting the respondent under section 265-K, Cr.P.C. Is not sustainable and is liable to be set aside.
5. I have heard the learned counsel for the appellant, respondent in person, DPG and have also examined the impugned order. The trial Court during preliminary enquiry recorded the statement of the complainant, called the report from S.H.O concerned and after examining the same along with the sub-lease executed in favour of the complainant, took the cognizance of the offence and issued process against the respondent vide order dated 6-7-2013 which is reproduced as under:-- "This petition is filed under section 3/4 of Illegal Dispossession Act, 2005, against the proposed accused lady, accordingly the inquiry was called upon. As per Inquiry Report the applicant/complainant has purchased the Flat No.4, 4th floor, situated at Plot No, B/10/3, Madniabad Bazar, Clifton Karachi, from previous owner namely Muhammad Safdar son of Eid.
Muhammad in the year 2012 and the applicant has also produced Sub-Lease in his name and in this respect the Investigating Officer has also recorded statements of two mohalla witnesses namely Muhammad Faisal son of Muhammad Rafiq and Shaikh Muhammad Yasin son of Shaikh Muhammad Saeed, who have also confirmed that the said flat is in the name of the applicant/complainant and the respondent lady along with her nusband are in illegal possession of the said flat, as they could not produce any title document in respect of said flat. The prima facie case in aforesaid, section is made against the above namely lady accused.
6. During pendency of the proceedings, the appellant filed application under section 7 of the Illegal Dispossession Act, 2005 seeking the interim possession of the subject property, the trial Court after providing opportunity of hearing to both the sides dismissed the application under section 7 of the Act, 2005 and also acquitted the respondent under section 265-K, Cr.P.C., the relevant part of impugned order reads as under:-- "I have heard the learned counsel for the respective parties and perused the record. According to the para No.3 of the complaint in hand, the complainant took the possession of the disputed property on 3rd November, 2012 being lawful owner. It is also available in para. No.5 of the complaint that the complainant very first time came to know about the alleged illegal possession upon his Flat/case property on 14-2-2013 and it is also available in para No.7 of the complaint that people of locality informed the complainant on 5-124012 that the accused along with her four companions entered in the flat. Whereas according to the indenture of lease, which was typed upon the stamp paper of dated 1-1-2013 vide , registration No. 604 Sub-Registrar-II, Clifton Town, Karachi. The date of presentation of such indenture of lease is of 22-2-2013, whereas there is no date mentioned upon the first page of such sub-lease. Furthermore, the copy of last page of said sub-lease, which was filed along with this complaint is without any signature of witnesses, whereas the copy of last page, which was filed during the arguments by the learned counsel of the complainant having signature of one Noor Din bearing CNIC No. 42401-8413435-3, which is sufficient to show that either the indenture of sub-lease is bogus or is a manipulated documents.
Furthermore, the date of illegal dispossession as alleged in the complaint is also not matched as on date of alleged illegal dispossession, the present complainant was not owner or occupier of the disputed/case property. Furthermore, during the inquiry conducted by the area police upon the order of this court, two witnesses namely Muhammad Faisal and Shaikh Muhammad Yaseen not specifically stated the date and time of the incident and even both witnesses are not residents of the building and police nor recorded any statement of the resident of the building as it is available in para No.7 of the complaint as referred by me herein-above that according to the complainant the locality people informed him about the date of illegal occupation by the accused.
' In view of the above discussion, no case under Illegal Dispossession Act is made out and complainant is at liberty to approach the civil court to obtain the possession in accordance with law, if he desires so, the case laws relied upon by the learned counsel for the complainant are distinguishable according to the present facts and circumstances of the case. With the above observations, I dismiss the application under section 7 of Illegal Dispossession Act, 2005 and acquit the accused namely Mst. Naheed wife of Noordin under section 265-K, Cr.P.C. She is on bail, her bail, bond stands cancelled and surety discharged."
7. It is pertinent to dote that both the above referred orders have been passed by the same Judge on the basis of the same evidence, police report and the documents brought on record during Preliminary Enquiry. However, surprisingly, both the findings are inconsistent and contradictory to each other whereas there has been no further development in the evidence as neither the parties were cross-examined nor they have produced any further documents or evidence which may justify the change in the opinion of the Court. From perusal of the impugned order passed by the learned trial Court it is evident that on the same set of allegation, statement, police report and the material which was available at the time when the learned trial Court took cognizance and passed the order dated 6-7-2013 by observing that a prima facie case under illegal dispossession has been made out, the learned trial Court while deciding an application under section 7 of the Illegal Dispossession Act, has changed its opinion on the same material and acquitted the respondent under section 265-K, Cr.P.C., without notice to the complainant in this regard. The object of exercise of powers as vested in Court under section 265-K, Cr.P.C. Is to prevent the abuse of law, however in a case wherein the opinion to learned trial Court sufficient prima facie evidence is available, as observed by the trial Court in its order dated 6-7-2013, such powers should not be exercised as to stifle the prosecution or to pre-empt the legal proceedings and to avoid decision of the case on merits after examining the evidence produced by both the parties. The trial Court apparently has acted in haste while passing the order of acquittal in the instant matter, whereas, the proper course would have been to record the evidence subject to cross-examination of both the parties and then to ascertain the truth or falseness of the charge. I therefore set aside the impugned order dated 21-3-2013 and remand the case to the trial Court with the directions to record the evidence and hereafter decide the case strictly on merits preferably, within a period of 3 months. Appeal is allowed.
' It is clarified that the observations made hereinabove are tentative in nature and will not affect the case of either party which shall be decided on the basis of material and the evidence available on record.