' KHADIM HUSSAIN M. SHAIKH, J.---Through this Criminal Revision Application, the applicant Ibrahim has called in question order dated 03.08.2012, passed by the learned Sessions Judge, Hyderabad in I.D. Complaint No,11 of 2012 (re-Ibrahim v. The State and others) whereby he has dismissed the aforesaid complaint.
2. The facts of the case in brief are that on 03.02.2012, the applicant/complainant had filed I. D.
Complaint No, 11 of 2012 (re-Ibrahim v. The State and others) under Section 3 of Illegal Dispossession Act, 2005, in the Court of Sessions Judge, Hyderabad. The case of the complainant is that he is a lawful owner of two shops constructed on plot No,35 situated in. Tando Muhammad Khan town by way of inheritance from his father Islamuddin and such entry in his favor is made in the Revenue record; accused Muhammad Ramzan and Muhammad Anwar have illegally occupied said plot/shops after death of complainant's father; when the complainant went at the aforesaid shops and contacted the accused persons, who by pointing their weapons abused and threatened him, hence he filed the above complaint.
3. The learned Sessions judge, Hyderabad vide impugned order dated 03.08.2012, has dismissed the aforementioned I.D. Complaint of the applicant, hence this Criminal Revision Application.
4. Learned advocate for the applicant has mainly contended that the applicant is owner of two' shops constructed on a plot No,35 situated in Deh Tando Muhammad Khan by way of inheritance from his father; that accused Muhammad Ramzan and Muhammad Anwar have occupied the said plot/shops of the applicant after the death of his father; that the applicant came to know about illegal occupation of the accused Muhammad Ramzan and Muhammad Anwar on his property when he went to the site; that the impugned order dated 03.08.2012, passed by the learned Sessions Judge, Hyderabad is illegal. He, therefore, prays that the impugned order may be set aside and the case may be remanded to the trial court for its decision after allowing the parties to adduce their evidence.
5. Learned advocate for the respondents Nos.3 and 4 has contended that the respondents Nos. 3 and 4 are in occupation of shops constructed in Survey No,41 of Deh Dodi Taluka Bulri Shah Karim, which is a different property than that of claimed by the applicant; that the provisions of The Illegal Dispossession Act, 2005, are not attracted to this case as the ingredients of Section 3 of The Act Ibid are lacking in this case; that the learned Sessions Judge, Hyderabad after considering the material placed before him, has rightly dismissed the I.D Complaint filed by the applicant. He, therefore, prays that the Criminal Revision Application may be dismissed.
6. Learned A.P.G appearing for the State, adopting the arguments of learned advocate for the respondents Nos.3 and 4, further states that there is no illegality in the impugned order dated 03.08.2012, passed by the learned Sessions Judge, Hyderabad, which does not call for any interference.
7. 1 have heard the arguments of learned counsel for the parties and learned A.P.G. For the State and have gone through the material available on the record.
8. The learned Sessions Judge, Hyderabad vide impugned order dated 03.08.2012 has dismissed the I.D Complaint, filed by the applicant, in the following manner:- ' "Report was called from Mukhtiarkar Revenue, Tondo Muhammad Khan, who submitted his report vide letter No,292 dated 20.6.2012 wherein he has mentioned that the opponents/proposed accused are in possession of the disputed shop since last 15 years. SHO concerned has also submitted his report vide letter No,1169 dated 20.06.2012 wherein he has also mentioned that the opponents are in possession of disputed shop since last 25/26 years.
' To consider the above report submitted by Mukhtiarkar as well as SHO concerned and so also the fact that complainant failed to file objections against the said report of Mukhtiarkar and SHO, therefore, it appears that the proposed accused reside since long much from the promulgation of Illegal Dispossession Act, 2005. It is well settled law that above Act has got no retrospective effect and in this regard, reliance is placed c;; 2012 PCr.LJ 423 (Sindh) (Sarfraz Khan v. Allah Bux and 4 others) wherein it is held that the Illegal Dispossession Act was promulgated on 6.7.2005 and it has got no retrospective effect and could not be made applicable to the cases of unauthorized occupants prior to 2005.
' In view of my above discussion, I consider that the provisions of Illegal Dispossession Act shall not be attracted against the proposed accused and proper remedy available to thecomplainant to approach and seek remedy from the competent Court of law. Accordingly, there is no likelihood of conviction of the accused in above case in hand and as such, the charge against the accused in above case has become groundless relating to the offence under Illegal Dispossession Act which has got no retrospective effect. Hence the above complaint is dismissed."
9. Perusal of record reveals that the petitioner has nowhere mentioned in the complaint that as to since when the accused/respondents Nos.2 and .3 are in occupation of the subject property as no date of alleged dispossession of the applicant (complainant) from the said property is mentioned in the complaint, even prima facie the possession of the applicant over the subject property could not be established from the averments of the complaint and documents annexed thereto and what to say about the alleged dispossession of the applicant from the property in question. Even otherwise mentioning the material particulars such as date and time of alleged dispossession of the applicant in the complaint filed by him, was essential for applicability or attraction of the provisions of The Act Ibid, which was promulgated in the year 2005. However, the investigation conducted by the Incharge Police Station concerned as required under Section 5 of The Act Ibid, revealed that the accused are in possession of the property in question since last 25-26 years i,e, much prior to promulgation of The Act Ibid.
10. According to provisions of The Act Ibid, persons, who can approach the court of competent jurisdiction for seeking relief under the Act Ibid, having been defined, are namely owner and/or occupier of the subject property. Definitions of occupier and owner for the purpose of applicability of the provisions of The Act Ibid, have been provided by clauses (c) and (d) respectively of Section 2 of The Act Ibid, which reads as under:-- "2(c) "occupier" means the person who is in lawful possession of a property; "2(d) "Owner" means the person, actually owns the property at the time of his dispossession, otherwise than through a process of law."
11. For the sake of convenience subsection (1) of Section 3 of The Act Ibid and subsection (1) of Section 4, under which the Court can take cognizance of the offence under the provisions of The Act Ibid, are reproduced:-- "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.
"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."
12. In view of the above, for attraction of provisions of The Act Ibid and in order to get the benefit of subsection (1) of Section 3 of The Act Ibid, the complainant had to show before the court that he was the lawful owner or occupier of the property in question; that accused had entered into or upon the said property was without having any lawful authority; and that he had done so with the intention to dispossess or to grab or to control or to occupy the said property, but the contents of the complaint, filed by the applicant, did not have any such allegations, which could fall within the ambit of Sections 3 and 4 of The Act Ibid. Furthermore, in this case the parties have divergent and conflicting claims over the properties which are alleged to be the different properties. Besides, prima facie the possession of the complainant over the subject property could not be established as no evidence or any document has been produced by the applicant to establish his possession.
In my humble view, in absence of any material prima facie establishing that the applicant was in possession, the contention of the learned advocate for the applicant that he was in lawful possession of the subject property is untenable.
13. In view of what has been discussed above, I am of the considered view that the complaint instituted by the applicant was liable to be dismissed and I do not find any illegality in the impugned order, passed by the trial court, dismissing the complaint of the applicant. Learned advocate for the applicant has also not been able to point out any illegality in the impugned order dated 03.08.2012, passed by the trial Court, attracting the interference of this Court in its revisional jurisdiction. The Criminal Revision Application being devoid of merit is liable to be dismissed.
14. Above are the reasons of my short order dated 08.02.2016, whereby the instant Criminal Revision Application was dismissed. .