' SHAHNAWAZ TARIQ, J.---Through captioned revision application, applicant Salamuddin has impugned order dated 16.05.2015, passed by the Court of learned Additional Sessions Judge, Kandiaro, whereby Criminal Complaint No,Nil of 2014, filed by the applicant, was dismissed.
2. Relevant facts mentioned in instant revision application are that applicant is owner of 0-20 ghuntas of land in S.No,441 situated in Deh Behlani, admeasuring 2-29 acres near by Halani Mehrabpur Road, on its southern side, which was purchased by applicant from Karamdin son of Fazaldin on 05.10.2012 against the valuable consideration and possession of said land was handed-over by its previous owner on the same day in presence of witnesses as there was a pond in the said land, therefore, applicant brought fish seeds as the said area is being used as Fish Pond.
It is further stated that respondents in collusion with each other came on the said land on 12.7.2014, during the night time at about 11 p.m. Brought their tractor trolleys and started filling the Fish Pond with mala fide intention to take its illegal possession and as soon as applicant came to know about such fact, he approached SHO Police Station Halani, so also to Muhammad Haneef son of respondent Muhammad Ramzan, who is Reader to. DSP Mehrabpur and requested them to restrain respondents from filling the said Fish Pond. Applicant moved a written application to SHO but he did not initiate any action because of the Reader of DSP had influenced him. It is also stated that DSP and SHO concerned had received a handsome amount from the proposed accused; hence they did not take any action against respondents. It is further stated that applicant has filed Pre- emption Suit No, 31 of 2013 in the Court of learned Senior Civil Judge, Kandiaro on 22.2.2013, in which Mukhtiarkar (Revenue) Mehrabpur submitted his site inspection report on 20.09.2013, which was conducted on the application of respondent No,
1. Respondents have committed an offence punishable under sections 3 and 4 of the Illegal Dispossession Act, 2005.
3. Learned counsel for applicant contended that proposed accused Muhammad Ramzan has filed F.C. Suit No,31/2013 before the Court of learned Senior Civil Judge, Kandiaro, on 22.2.2013 for pre- emption and permanent injunction and Mukhtiarkar submitted his report in said suit and confirmed peaceful possession of applicant over the disputed land; that applicant also filed suit for possession, mesne profits and permanent injunction under section 9 of Specific Relief Act on 06.04.2014, which is still sub-judice; that on 11.07.2014, applicant also moved an application to SHO respondent No,1 for taking legal action against proposed accused but no action was initiated against them. Learned counsel further contended that learned trial Court did not consider the documents submitted by applicant and without recording evidence of the applicant, said complaint was dismissed; said Mukhtiarkar has issued two different reports i,e, first report dated 20.08.2013, and second report dated 26.09.2014, and learned trial Court had illegally observed that concerned SHO and Mukhtiarkar had not submitted any report that accused persons are land grabbers, while in first report Mukhtiarkar had stated that neighbours of the applicant informed that applicant was in peaceful possession of the land in question and even then trial Court had dismissed his complaint on the ground of filing of civil suit by him. Learned counsel further contended that when proposed accused No,1 filed suit for preemption on 22.02.2013, possession of the said land was with applicant, but on 12.07.2014 accused party had forcibly got the possession of the land in question from the applicant with the help of official respondents, hence learned trial Court may be directed to decide the complaint on merits.
4. While controverting the above submissions, learned counsel for respondents contended that applicant has filed instant complaint with mala fide intention as he has already filed F.C. Suit Nil of 2014 against the respondents for possession, mesne profits and permanent injunction before the Court of learned Senior Civil Judge, Kandiaro, against the said property; that applicant without delivery of peaceful possession of land, has filed criminal complaint with mala fide intention only to pressurize the respondents; that concerned SHO and Mukhtiarkar had not submitted any report that respondents are land grabbers or belonging to a Qabza group, hence plea of forcible dispossession is false and fabricated; that respondent No,1 Muhammad Ramzan is owner of land admeasuring 1-38 acres out of S.No,441, total admeasuring 2-29 acres is also in possession of said land including area of 0-20 ghuntas of his brother Karamuddin and 0-11 ghuntas of his sister Mst.
Bibo, but said survey numbers have not been privately partitioned and respondent No,1 being major shareholder, is in possession of entire land since its purchase in the year, 1995; that respondent purchased area of 0-30 ghuntas in the year 1995 by way of registered sale deed and since then he is in possession of whole area of 2-29 ghuntas of S.No,441 of Deh Behlani and cultivating the same and paying land revenue; that learned trial Court has passed a proper order, hence instant revision application is liable to be dismissed.
5. Learned APG supported the impugned order and submitted that instant revision application is liable to dismissed.
6. I have heard the arguments of the learned counsel for the parties and perused the material available on record minutely.
7. Perusal of material available on record emanates that applicant claimed to be the owner of 0.20 ghunta of agricultural land by way of sale by its actual owner namely Karamdin who had also sworn his affidavit dated 25.04.2015, before the trial Court and supported the claims of the applicant and stated that he sold out his land to applicant and applicant was also in peaceful possession of said land but he was dispossessed by his brother respondent Muhammad Ramzan.
The averments of affidavit are controverting, the contention of respondent Muhammad Ramzan that he has been enjoying the peaceful possession of land in question since its purchase with the consent of his family members. Learned trial Court should must have such affidavit prudently and ignoring said affidavit is serious infirmity committed by the Court.
8. Indeed, applicant has prima facie established to be owner of the land in question, and to determine the allegations of forcible dispossession by the respondents, thus recording of evidence of the parties was essential. It is well settled that civil suit and direct complaint can be filed by the same party simultaneously and through civil suit any party can approach the concerned civil Court for determination of his legal rights over the property in dispute, and through criminal complaint the offender should be punished for the offence which he had committed.
Consequently, Mere pendency of the civil suit regarding declaration etc., would not debar and prohibit the applicant from availing other efficacious remedy by approaching the Court having competent jurisdiction.
9. In the case of Muhammad Ramzan alias Jani v Muhammad Aslam and others (2007 PCr.LJ 1784), it has been observed as follows:- "Respondents allegedly having forcibly and illegally trespassed the land owned by applicant with a common intention to grab the property, applicant filed civil suit for seeking restoration of possession along with an application for obtaining status quo. Senior Civil Judge issued notice to respondents and maintained status quo. Applicant, in the meanwhile filed application in the Court of Session under section 4 of Illegal Dispossession Act, 2005, in offence under Ss.3 and 7 of the Act.
District Attorney opposed complaint stating that applicant had already filed civil suit for seeking declaration regarding his title over disputed property. No bar existed for any party to choose to file civil suit or criminal proceedings, as per law both the remedies could be availed by the applicant.
Court had to protect the rights of the person and property. Respondents had encroached upon the land of applicant with ulterior motive in order to usurp the land of the applicant. Court had to see the grounds realities regarding the hardship of the parties. Applicant had rightly filed application for seeking eviction of respondents from the land involved in the application. Mere pendency of the civil suit regarding declaration, would not mean that applicant could not avail other efficacious remedy by approaching the court having jurisdiction. Application by applicant before Sessions Judge under section 4 of Illegal Dispossession Act, 2005, in offence under Ss.3 and 7 of said Act, was maintainable."
10. Bare perusal of the impugned order emanates that learned trial Court while dismissing instant complaint on the ground of pendency of a civil suit, has committed serious illegality and material infirmity which calls for interference and same stands set-aside. Consequently, instant criminal revision application stands allowed as prayed and learned trial Court is directed to decide the direct complaint strictly on merits after recording evidence of the parties.