SYED MUHAMMAD FAROOQ SHAH, J.---Through this Criminal Revision Application applicant has called in question the order dated 24.2.2012 passed by the learned IVth Additional District and Sessions Judge, Karachi-West in Direct Complaint No,18/2011, whereby accused were acquitted.
2. To ascertain and determine the maintainability of instant Criminal Revision Application filed under sections 435 and 439, Cr.P.C. Counsel for the applicant was directed to satisfy this Court as to how the Revision Application is maintainable against an order of acquittal passed by the trial court though remedy of filing an appeal against such order is available under section 417(2-A), Cr.P.C.
3. Learned counsel for the applicant submitted that impugned order passed by the learned trial court is liable to be set aside mainly on the ground that learned trial court had not considered all the aspects of the case and the law on it, while recording the impugned order under section 265-K, Cr.P.C.
4. Briefly stated the facts stated in the complaint lodged under sections 3, 4, 7 and 8 of the Illegal Dispossession Act are that complainant is law full owner of Plot No,37-A, 38 and 38-A, Shah Waliullah Nagar, Sector 11-1/2 Orangi Town, Karachi duly leased in his favour by the competent authority the complainant after purchase of the above said plots constructed the house thereon.
The said plots are situated adjacent to the Jamia Masjid Abu Hurraira and the proposed accused wants to usurp and dispossess the complainant from his lawful right in 2007 so the complainant approached the concerned Union Council No,7, Orangi Town Karachi for redressal of his grievance.
The said Union Council, after hearing the parties, decided the matter in favour of the complainant vide their decision dated 12.11.2007 and thereafter respondent kept quite; that again in the year 2008, when the complainant started further construction on the said plots, the respondents objected to the same and claimed the said property to be of Masjid, whereupon the complainant filed Suit No.106/2008 for permanent injunction and plaint was rejected by the learned Judicial Magistrate Vth Karachi-West under Order VII, Rule 11, C.P.C. Thereafter the respondent No,1 being the Vice President initiated Suit No,1034/2009 against the complainant and others for declaration, cancellation and permanent injunction, which was dismissed by the trial court for non-compliance and non-prosecution on 19.10.2010. After dismissal of Suit No,1034/2009 the respondents remained silent and on 10.3.2011 suddenly illegally and forcibly occupied the above said plots and started construction thereon; that on protest by the complainant, the respondents extended threats of murder showing the arms and demanded to leave the place and plots whereupon the complainant submitted an application to the concerned police for justice and legal action.
5. In application under section 265-K, Cr.P.C. Accused persons have challenged the maintainability of provisions of Illegal Dispossession Act, 2005 for the reasons that before filing of Direct Complaint No,18/2011, the accused have already filed a Suit No,1034/2010 for declaration, cancellation and permanent injunction which was pending before the learned IVth Sessions Judge, Karachi-West and prior to it plaint of Suit No,106/2008 filed by the complainant for permanent injunction was rejected under Order VII, Rule 11, C.P.C. It is settled proposition of law that a complaint under Illegal Dispossession Act cannot be entertained as the matter of possession is subject of civil or revenue court as held in the case of Zahoor Ahmad v. State (2007 PLD Lahore 231). The trial court placed reliance upon the ruling of Hon'ble Supreme Court of Pakistan reported as Mumtaz Hussain v. Dr. Nasir Khan (2010 SCMR 1254) wherein the Hon'ble Supreme Court held that after decision of civil court in favour of the complainant, he can approach the Court under section 4 of the Act, if so advised.
6. Section 9 of the Illegal Dispossession Act, 2005 provides that Code of Criminal Procedure 1898 shall apply to the proceedings under the said Act unless provided otherwise in the Act, if we take into consideration the provision of Criminal Procedure Code then against the order of acquittal and dismissal of private complaint remedy is by way of appeal under section 417, subsection (2), which reads as under:-
417. Appeal in case of acquittal.---(1) Subject to the provisions of subsection (4) the Provincial Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by Court other than a High Court.
(2) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.
(2A) A person aggrieved by the order of acquittal passed by any Court other than a High Court, may, within thirty days, file an appeal against such order.
(3) No application under subsection (2) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order.
7. Perusal of above mentioned provision of law clearly indicates that right of appeal against the order of acquittal has been conferred to an aggrieved person. Section 439, subsection (5) of the Code contains prohibition to the effect that where right of appeal is provided and no appeal is brought under this Code, no proceedings by way of revision shall be competent against the order of acquittal, meaning thereby that under the law, revision application against the order of acquittal is not competent.
8. So far as the Revision Application against the order of acquittal passed by the learned Additional Sessions Judge, Karachi-West is concerned, remedy of filing of appeal under section 417(2-A), Cr.P.C. Is available as held in the following reported judgments:-
(i) Mst. Mamoona Akhtar v. Magistrate Section 30, Wazirabad, District Gujranwala and 2 others (2005 MLD 896)
(ii) Haji Muhammad Ashraf v. The State and 3 others (1999 MLD 330)
(iii) Jehangir Masih and others v. The State (2003 YLR 1785)
(iv) Muhammad Aslam v. Ghulam Muhammad and another (PLD 2004 Karachi 73)
(v) Tehzeeb v. Wajid Mahmood alias Abdul Wajid and The State (PLD 1987 Pesh. 112)
9. The contention of learned counsel for the applicant that Revision Application is competent under section 439-A, Cr.P.C. Against the order of acquittal recorded under section 249-A, Cr 4).C. Is against the preponderance of view recorded by the Superior Courts. After going through the aforesaid provisions of law I am of the considered view that no revision is competent against the order under section 265-K, Cr.P.C. Which is challenge able by way of appeal.
10. It is not out of context to mention here that the appeal against the order of acquittal under section 417(2-A), Cr.P.C., announced on 24.2.2012, was to be filed within thirty days in view of amended provision of section 417(2-A), Cr.P.C. But deliberately and intentionally knowing about the bar contained under section 29(2)(a) and (b) of Limitation Act and that inordinate delay of about 23 months in filing the appeal against acquittal of accused would not be condoned, present Revision Application has been instituted on 16.01.2014 by the applicant so that the point of limitation may not come in his way.
11. On 12.2.2016 after hearing the learned counsel for the parties, by a short order, the captioned Revision Application filed against the acquittal of respondents was dismissed. Above are the reasons for the said short order.