1. HASAN FEROZ, J.---This revision application arises-out of the impugned order dated 13.9.2013 passed by learned 1st Additional Sessions Judge Karachi South in Illegal Dispossession Complaint.
2. No.182/2013 under the Illegal Dispossession Act, 2005, (hereinafter referred-to-as '2005 Act') whereby the learned trial court dismissed the complaint as such the present applicant being aggrieved with the impugned order has approached this Court challenging the legality, propriety and correctness of the aforesaid impugned order.
3. The crux of the case is that since marriage of the applicant with her deceased husband viz. 15.4.1995, the applicant in possession of the flat No. 20, 3rd floor, Hussain Building M.B. Dalai Road, Jamila Street, Karachi [hereinafter referred to as the 'subject property]. The property in question was acquired by her deceased husband on goodwill basis and the landlord in acknowledgment of her husband's tenancy used to issue tenancy receipts after payment of advance rent and during the last several years the applicant resided with her deceased husband in the subject property.
4. After the demise of the applicant's husband she used to reside in the subject property along with her two minor children and continued depositing rent of the subject property on behalf of her deceased husband.
5. After the death of her husband the conduct of respondents [brothers and sisters of the deceased husband of the applicant/ complainant] became cruel towards the applicant and the respondents Nos. 2 to 8 started to harass and create hurdles in her peaceful life or their ulterior motives and demanding to vacate the subject property else they shall forcibly dispossess the applicant.
6. Subsequently on 08.2.2013 the applicant filed a Civil Suit No. 110/2013 before the learned XIVth Civil Judge Karachi South for declaration and permanent injunction against the respondents Nos. 2 to 5 who refused to receive the notices of the said suit and rushed towards the subject property which was at the relevant time was closed under the lock and key of the applicant. They broke the locks of the applicant and threw all household articles on road and also put their own lock and key over the main gate of the subject property and afterward when the applicant arrived at the subject property, the respondents Nos. 2 to 8 forcibly restrained the applicant and did not allow her to enter into the subject property. The applicant/complainant filed a complaint under section 5 of the Illegal Dispossession Act, 2005 and her statement under section 161 was recorded. The learned trial court had directed to the SHO, PS Nabi Bux to submit his report whereby complainant/applicant produced her witnesses and their statements under section 161, Cr.P.C. Were recorded. The respondents' side have also produced their witnesses and as per statement of the witnesses it has transpired that complainant had left the premises in question just after the death of her husband and the flat under tenancy was given to the respondents and such statement was made by the daughter of the applicant/complainant as both son and daughter are under the supervision of their real uncles grandmother.
7. The Applicant filed the captioned revision application inter alia on the grounds that dispossession of the lawful occupants is also covered under section 3 of the Illegal Dispossession Act, 2005 hence the impugned order is illegal and against the canons of justice as the same passed completely in disregard to the settled principle of law as held in cases reported in 2008 YLR 2259, PLD 2007 SC 423, PLD 2008 Karachi 94 and PLD 2008 Lahore 59. Learned counsel for the applicant/complainant has contended that the inquiry reports submitted by the police are beyond the scope of section 5 of the Illegal Dispossession Act and contrary to each other. He contended that the learned trial judge has misread and misconstrued the statement of witnesses and has failed to peruse the statement of Mst. Kinza who has repeated the version of complaint of the applicant in her statement under section 161, Cr.P.C. That applicant left her house on its own motion and put lock on its door. The learned trial court has not examined all the aspects, pros and cons of the prosecution case, therefore, there has been a miscarriage of justice. Learned counsel for the applicant has further contended that the impugned order is not sustainable in law and on facts in as much as the trial court has failed to appreciate that there was sufficient evidence brought on record which itself is sufficient for warranting the conviction' of the respondents Nos. 2 to 8 in the commission of offence under sections 3 and 4 of the Illegal Dispossession Act, 2005, as the impugned order passed in haste manner and bypassed the mandatory provisions of sections 3 and 4 of the Illegal Dispossession Act, 2005 and only relied on the police report hence impugned order dated 6.4.2013 is liable to be set aside. He further contended that the applicant has produced all relevant documents as the facts of the case have constituted offence under section 3 which is cognizable by the trial court but the trial court dismissed the complaint without affording opportunity to lead evidence and did not put the inquiry officer into witness box for purpose of cross-examination. In suppor; of his arguments, learned counsel has relied upon following cases:-
1. 2010 SCMR 1254 [Mumtaz Hussain v. Dr. Nasir Khan and others].
2. PLD 2008 Lahore 59 [Iftikhar Ahmad v. Zulfiqar All and others].
8. PLD 2007 SC 423 [Rahim Tahir v. Ahmed Jan and others].
4. 2008 YLR 2259, PLD 2007 Sc 423, PLD 2008 Karachi 94 and PLD 2008 Lahore 59.
9. On the contrary learned counsel for the respondent as well as learned APG have contended that revision against impugned order by applicant is not maintainable. Learned counsel for the respondents has contended that the applicant/complainant immediately after the sad demise of her husband, had left the premises in question without any cogent reason. While leaving the said property, she has also left her two minor children [one daughter and one son] helplessly and the respondents being grandmother, real uncles, had taken over the responsibilities of the said two minors and have looked after the health, education, as well as all necessities of life of the minors.
10. He contended that the said property is on `PUGREE' basis and rent is being paid regularly every month. Learned counsel further contended that Illegal Dispossession Act is a special law enacted through Act XI of 2005 to curb the activities of the property grabbers and to protect the lawful owners and occupiers of immovable properties from their illegal and forcible dispossession. He has further contended that preamble of the Illegal Dispossession Act, 2005 is wide enough as by the use of words it is expedient to protect the lawful owners and occupiers of immovable properties from their illegal or forcible dispossession therefrom by the property grabbers wide powers have been conferred and it aims at to protect the interest of lawful owners and occupiers of immovable property from their illegal or forcible dispossession and the Act is not remedial but protective and the same is destined to be prospective .In operation and that the Act is not meant to decide the ownership of the property in dispute, which can only be decided by a civil court but the intent and object of the law is to protect the rights of owners and the lawful occupants of the property as against the unauthorized and illegal occupants. Report from the police was called and since prima-facie offence was not found to have been made-out the cognizance of the matter was not taken and, therefore, contended that impugned order is legal, proper and within the four corners of law and same calls for no interference by this court while sitting as a court of appeal and enjoying the revisional powers conferred as scope of revision is limited to the extent to determine the legality and propriety of the order impugned.
11. He further contended that impugned order is quite legal and proper and the action so taken by the Respondents was within their domain and the impugned order calls for no interference by this court in exercise of the revisional jurisdiction as is not mandatory that in each and every case interim relief is to be allowed as a matter of routine., rather facts of each case are to be looked into and the impugned order on its bare reading speaks that the learned court has passed the detailed order while taking into consideration all the aspects of the matter, so also observing that the controversy between the parties in respect of possession and dispossession from the said property can only be filtered after recording of evidence in the matter before the Civil Court.
12. After hearing the learned counsel of both the sides at length, I have considered the submissions made before me and have consulted the law on the subject, gone through the reported dictums cited by the learned counsel for the applicant/complainant.
13. Perusal of the record shows that the learned trial court while entertaining the Criminal Miscellaneous Application/complaint under the Illegal Dispossession Act, 2005, had called for the report from the concerned Police Station and it was reported that complainant Mst. Naseem produced her witnesses Muhammad Jawaid son of Fateh Muhammad, Shaikh Tariq Ahmed son of Abdul Ghafoor and recorded their statements under section 161, Cr.P.C. The respondent side produced witnesses Malik Zahid, Perwaiz Sohail Rana and as per statement of witnesses it revealed that complainant on her own accord had left the flat in question after the death of her husband and the flat is under tenancy was given to the respondents and such statement was made by the daughter of complainant Kinza who is under the supervision of uncles and grandmother. As per report the complainant was not dispossessed by the respondents, whereas the applicant/complainant has filed the captioned Criminal Miscellaneous Application/Complaint under the Illegal Dispossession Act, 2005 alleging her dispossession from the said flat and respondents dispossessed her from her legitimate legal and lawful rights of the said property. The learned trial court had called for the report from the concerned police station and it was found that complainant had left the premises just after the expiry of her husband. The learned trial court had observed that there was no registered document available in favour of the applicant/complainant.
14. The learned trial court came to the conclusion that the dispute so involved is of civil nature and the applicant/complainant to seek remedy before the civil court in appropriate manner.
15. The learned counsel for the applicant/complainant in support of his submissions has stated that under the scheme of Illegal Dispossession Act-2005 it is well settled principle of law that the civil and criminal proceedings to run simultaneously and there was a suit pending as per reported decision and it was held that the applicant was justified in moving to the Court of Session. I am in agreement with the view expressed in the reported decision but I am of the view that facts of the reported dictum are altogether different from the facts of the case in hand as the applicant/complainant has no title documents in her name and she is claiming to herself as owner of the said property, as such, said reported dictum will not come for her rescue.
16. I have in my mind that for the purposes of taking cognizance of the complaint the courts have only to see the existence of a prima facie case either on the basis of averments made in the complaint and the statements of Complainant on oath on the basis of inquiry if the court thinks fit to hold inquiry in order to ascertain truth or falsehood of the complaint, but I am also conscious of the position that the criteria in respect of complaints brought under the Illegal Dispossession Act, 2005 have limited scope and further at the very outset intent and object of the Act, 2005 have to be kept in view and since in all fairness in the present case the applicant/complainant herself was not having the clear title and she was also not able to establish her stand so taken about her forcible dispossession. On the contrary it is pre-requisite of the Act, 2005 that all the ingredients or elements must be made-out before it is established that the offence has been committed by the accused person. If even one of the ingredients or elements is missing, then no offence is made-out and in this context, I may refer to the decision as appeared in 2010 PCr.LJ p.1046 as in all fairness under the Act, 2005 it is the basic pre-requisite that in order to constitute an offence under section 3(1) of the Illegal Dispossession Act, 2005 the complainant is to allege and show before the court:
(i) That the complainant is the actual owner (or occupier i.e. In lawful possession) of the immovable property in question.
(ii) That the accused has entered into (or upon) the said property.
(iii) That the entry of the accused into (or upon) the said property is without any lawful authority and
(iv) That the accused has done so with the intention to dispossess (to grab or to control or to occupy) the complainant.
17. While examining the instant criminal miscellaneous application/ complaint, I have noticed that such pre-requisites being missing as such in the light of decisions of the Honourable Apex Courts as appeared in 2009 SCMR 1066 in the circumstances of the present case the observations made by the learned trial court dismissing the criminal miscellaneous application/complain seems to be based on sound footings as such the same calls for no interference by this court in exercise of the revisional powers. However, the remedy is available with tie applicant/complainant who is at liberty to approach the civil court.
18. In the result while maintaining the impugned order dated 13.9.2013 I see no force in the revision application which is hereby dismissed.