1. MUHAMMAD SALEEM JESSAR, J.---Through instant Criminal Revision Application the applicants have assailed Order dated 17.08.2016, passed by learned III-Additional District and Sessions Judge, Karachi South whereby he allowed application under section 7 of the Illegal Dispossession Act, 2005, moved by respondent No, 1/complainant Haji Mohammad Rafiq, thereby directing the applicants/accused to put the complainant in physical possession of subject property viz. Shop No,G-1, ground floor, City View Shopping Lines, Depot Line, Saddar , Karachi within ten days and the SHO concerned was also required to do the needful in accordance with the law and procedure, prepare proper inventory and submit his report.
2. Precisely , the facts giving rise to the filing of instant Criminal Revision Application are that respondent No,1 filed complaint under sections 4 and 5 of the Illegal Dispossession Act, 2005. Thereafter , an interlocutory application under section 7 of the Act, 2005 was also filed by him. It was stated by the complainant that he purchased Shop No,G-1, ground floor, City View Shopping Lines, Depot Line, Saddar , Karachi by virtue of conveyance deed dated 10.02.2012 and got mutated the same in his name. However , he obtained the possession of the shop in question through proceedings in Civil Suit No,1 108/2014 and was enjoying its possession but the owners of Shandar Coach viz. the present applicants started creating troubles in smooth running of business by the complainant. It was further stated that on 13.10.2014 at about 6'O Clock the accused/present applicants along with 15/20 gunda elements duly armed with deadly weapon s came at the shop. broke open the lock of the shop, illegally occupied the shop in question and also took Rs,15,00,000/- from the drawer lying in the shop.
3. After taking cognizance of the complain ant, trial Court issued bailable warran ts against the accused/present applicants who executed bail bonds before the trial Court.
4. It appears that the said complaint was referred by the trial Court to SHO Preedy Police Station under section 5 of the Act, 2005 for investigation and report which was duly submitted on 24.11.2014. In the said report the SHO stated that the complainant/respondent No,1 Mohammad Rafiq is the actual owner of the shop in question and that the accused/applicants Atta Rasool and his companions have fraudulently occupied the same.
5. During the pendency of the complaint the applicants moved application twice for transfer of the complaint but the same were dismissed.
6. The accused/applicants also filed objections to the application under section 7 of the Act, 2005. They raised legal objection to the maintainability of the complaint on the ground that the criminal complaint cannot be filed through attorney; also moved an application that the proceedings may be stayed till the said legal objection regarding locus standi of the attorney to file criminal complaint is finally decided. According to them, the complaint has been filed with mala fide intention in order to frustrat e the proceedings of Civil Suit No,745/2014 filed by applicant Atta Rasool wherein title of the property in question is subjudice.
7. After hearing the arguments advanced by the learned counsel for the parties, vide impugned order learned trial Court, allowed the application under section 7 of the Illegal Dispossession Act. 2005 as stated above, which has been challenged by the applicants accused through instant Criminal Revision Application.
8. I have heard learned counsel for the appli cants/accused, learned counsel for respondent No, 1/complainant as well as learned D.P .G. appearing for the State, and perused the material available on the record.
9. Learned counsel for the applicants has contended that while passing the impugned order , the trial Court has not properly considered the relevant facts and law and has passed the impugned order in a hasty and mechanical manner . He further contended that the learned trial Court has not taken into cons ideration the counter affidavit of applicant Atta Rasool and the document s annexed thereto. He further contended that as per complainant's own version the incident took place on 13.10.2014 and on the same day complaint was filed, whereas Nazir of the Court had submitted his report on the very same day in Suit No,745/2014 filed by applicant Atta Rasool to the effect that possession of the shop in question was with the applicants, as such the compl aint is false and fabricated. He further contended that there is no provision in the criminal law which empowers an attorney to file a criminal complaint on behalf of the principal. He further contended that the applicants were not provided proper opportunity of hearing while deciding the application under section 7 of the Act, 2005. He lastly prayed for setting aside the impugned order and issuing directions to the trial Court to proceed with the case and decide the complaint in accordance with the law .
10. Conversely , learned counsel for respondent No, 1/complainant contended that the impugned order has been passed in accordance with law after properly taking into consideration factual and legal aspects of the case. He further contended that the learned trial Court had referred the complaint to the concerned SHO for investigation and report who has submitted his report in favour of the respondent and has stated that the possession of the shop in question was with respondent No,1 and that the accused/applicants had occupied the same by fraudulent means. He further contended that the application under section 7 of the Act, 2005 was filed and signed by respondent Haji Mohammad Rafiq himself and not through his attorney which fact has been concealed in the Criminal Revision Application as such the legal objection of the applicants regarding maintainability of the complaint is not sustainable. He further contended that applicant Atta Rasool has admitted that during the pendency of the complaint as well as the suit filed by him he has sold the shop in question to one Mohammad Hussain as such instant revision application is not maintainable because admittedly applicants are not in possession of the shop in question. He prayed for dismissal of the Criminal Revision Application.
11. In the first instance, I would deal with two legal question(s), one raised by the respondent/complainant's side and other by applicants. The question, so raised by respondent/complainant, that since admittedly during pendency of /is the applicants have sold out the property in question to Muhammad Hussain hence they have lost their locus standi , is without any substance. If such proposition is accepted, it shall open a room for an accused (unauthorized occupant) to defeat least frustrate an order for restoration which normally would be in respect of person, complained as illegal occupant. Normally , an order against a person , though impliedly , would always include all acting under him. Neither a mere change of hands nor a manoeuvre by accused (unauthorized occupant) would be a sufficient ground to defeat a lawful order for possession or title even which is obtained by an aggrieved from a competent court of law. Even otherwise, a reference to section 8 of the Act would make position clear which is reproduced hereunder:- "Section 8. Delivery of possession of property to owner , etc.--
(1) ................. the Court may, at any time of passing order under subsection (2) of that section direct the accused or any person claiming through him for restoration of the possession of the property to the owner or, as the case may be the occupier , if not already restored to him under section 7 .
12. The deliberate use of 'or any person claiming through him' itself makes it clear that mere delivery of possession by accused to any body under any plea would not be an excuse to legal consequence of an order , passed under section 7 or 8, as the case may be.
13. Now, I would take up the legal objection regarding maintainability of the complaint and application under section 7 of the Illegal Dispossession Act, 2005. The impugned order has been passed on the application under section 7 of the Act, 2005. Respondent No,1/complainant while filing Objections to the instan t Revision Application, has also annexed copy of his application filed under section 7 of the Act, 2005 which clearly shows that the supporting affidavit to the said application is that of respondent Haji Mohammad Rafiq himself and not of his attorney . Even otherwise, honourable Supreme Court in the case of Abdul Hafeez v. Usman Farooqui throu gh his daughter Sharmila Farooqui and another reported in 2008 PSC (Crl.) 959 held as under: "A complaint need not necessary be made by the person injured but may be made by the person aware of the offence---The rule is that if a general law is broken, any person has a right to complaint whether he himself has suffered any particular injury or not.
14. Art. 185(3)---Illegal Dispossession Act, 2005, S.3--- Complaint against unauthorized possession---Locus standi of attorney---Held: complaint could be filed by the attorney acting on behalf of original owner of disputed property ."
15. In view of this legal position, the objection raised by the applicants to the maintaina bility of the complaint under the Illegal Dispossession Act, 2005 by the attorney seems to be carrying no weight.
16. Reverting to merits of the case, I would say that the provision of section 7 is a deliberation whereby the 'interim relief' could well be granted in favour of owner/occupier if during trial the Court is satisfied that a person (accused) is prima facie not in 'lawful possession' . I needs not be insisted that term 'prima facie' can never be a substitute to the term proof' which aspect also needs to be kept in view by the Court(s) while exercising jurisdiction under section 7. It may well be added that the provision of section 7 of the Act appears to have been couched in a manner whereby the accused is to prima facie establish his being in `lawful possession'. Bare reading of the section 7 of the Act makes it quite clear that such exercise has not been restricted to any particular stage hence, I would feel-safe to say , such exercise can well be exercised before recording of evidence or completion thereof.
17. Needless to add that an interim order (relief) never necessarily controls the fate of main complaint/case which otherwise has to be decided on conclusion of trial. Thus, wisdom of deliberate insertion of interim relief must always be given its weight because the object of the Act is to protect the lawful owners, which, surely , would include right to be put in possession as early as possible even by course of interim relief.
18. From perusal of the record it reveals that after filing of the complaint under the illegal Dispossession Act, 2005 by respondent No,1, the same was referred to SHO Preedy Police Station for investigation and his report. Accordingly , the SHO submitted his report dated 24.11.2014 wherein he, inter alia, stated that FIR No, 493/14 was lodged by applicant Haji Mohammad Ashiq against complainant Haji Mohammad Rafiq and others under sections 302/324/109/427/34 on 11.07.2014, whereas applicant Atta Rasool in his statement and also in the pleadings of his Suit No,745/2014 claimed possession of the shop in question on the basis of Sale Agreement since 24.04.2014.
19. According to SHO, if the possession of the shop in question was with Atta Rasool since 24.4.2014, then as to how in the aforesaid FIR No,493/14 which was filed subsequently i,e, on 11.07.2014 in respect of the shop in question, complainant Haji Mohammad Rafiq was named as an accused?. This fact supports the plea of the complainant that the possession of the shop in question was with him.
20. It appears that respondent No,1/complainant claimed to be the owner of the shop in question having purchased the same through Sale Deed dated 16.02.2012 vide Registration No,250 duly executed before the Sub-Registrar , Jamshed Town-II, Karachi. This fact has also been admitted by the applicants. Applicant No,1 in para 3 of the plaint of his Suit No,745 of 2014, wherein comp lainant Haji Mohammad Rafiq was arrayed as Defendant No,1, stated in clear terms: "That the Defendant No,1 being lawful and legitimate owner of the aforesaid property had sold out the Suit Property to the Plaintif f...."
21. At this juncture, I feel it quite appropriate to refer operative parts of the case of Shaikh Muhammad Naseem v. Mst.
22. Farida Gull 2016 SCMR 1931 whereby the honourable apex Court has made two aspects relating to scope and object of the Act clear . The operative parts are reproduced hereunder:- "3. ...As the term 'property grabbers' appearing in the preamble of the Act has been used in general sense, it cannot be identified with any particular category of offenders in order to restrict the scope and applicability of the Illegal Dispossession Act, 2005 to a particular category' of offenders . Additional the substantive provision of Illegal Dispossession Act i,e, section 3 expressly uses general term such as 'no one' and 'whoever' for the offender . This clearly indicates that the widest possible meaning is to be attributed to these terms. Thus the provisions of section 3 clearly demonstrate that whosoever commits the act of illegal dispossession as described in the Illegal Dispossession Act. 2005 against a lawful owner or a lawful occupier , he can be prosecuted under its provisions without any restriction."
23. 5....No one can be allowed to take law in his own hands and unlawfully dispossess an owner or lawful occupier of an immovable property and then seek to thwart the criminal proceedings initiated against him under the Illegal Dispossession Act, 2005 on the pretext that civil litigation on the issue is pending adjudication between the parties in a court of law .
24. Therefore, irrespective of any civil litigatio n that may be pending in any Court, where an offence, as described in the Illegal Dispossession Act, 2005, has been committed, the proceedings under the said Act can be initiated as the same would be maintainable in law ." The above principles, so enunciated by apex Court, help me to conclude that the remedy , provided by the Act, cannot be defeated even if the accused comes with any claimed status, including tenant and purchaser even if otherwise the offence, as described in the Act, appears to have been committed i,e, dispossession of lawful owner/occupier from F immovable property without any lawful authority'. I would respectfully add that in the case of Muhammad Ismail Nizami and another v. Javed iqbal and another 2016 SCMR 2039 , the order of this Court, directing landlord to put tenant into possession under section 7 of the Act, was maintained.
25. Keeping in view the above guidelines as well scope and object of section 7 of the Act, I find that the report of the SHO is against the applicants whereby the manner of possession of the applicants/accused has not been shown as 'lawful' . Further , FIR No, 493/14, lodged by applicant Haji Mohammad Ashiq against complainan t Haji Mohammad Rafiq and others under sections 302/324/109/427/34, on 11.07.2014 which is also in respect of shop in question the possession whereof was obtained by complainant/respondent through court of law, which claim of respondent/complainant, at any time, was challenged by applicants/ accused rather while claiming sale agreement with complainant/ respondent, the lawful possession of complainant stood admitted.
26. Be that as it may be, the applicants have been claiming their possession under the sale agreement between applicant Atta Rasool and complainant/respondent." The complainant/respondent No,1 has totally denied to have executed such sale agreement and claims that the same is fake, fabricated and bogus. Here it needs to be made clear that a sale agreement does not confer any- title on the person in whose favour such an agreement is executed. It, in fact, only grants him the right to sue for such a title hence till final outcome of the litigation, such a person cannot be heard to deny the title of the owner or to deprive him of any benefits accruing to him or arising out of the property . Reference may well be made to the case of Syed Imran Ahmed v. Bilal and others PLD 2009 SC 546. Once, the ingredients of section 3 of the Act appear to have constituted the remedy , including that of interim relief, could not be denied merely with reference to a sale agreement else the object and purpose of the Act shall stand frustrated which otherwise was insisted to be protected in the case of Shaikh Muhammad Naseem supra regardless of pendency of any civil litigation or claimed title therein. Needless to add that a purchaser continues enjoying all his rights, arose out of a sale agreement, and can well be put into vacant possession of subject matter , on success of his only available right i,e, to file a suit for Specific Performance of Contract which however can well include compensation. Guidance is taken from the principles, so enunciated by apex Court, while dealing with similar situation but in rent matters.
27. As regards the Nazir Report filed in Suit No,745 of 2014 filed by applicant No,1 Atta Rasool, which has heavily been relied upon by the applicants in support of their claim to be in possession of the shop in question, it would suffice to say that this, at the most , could help possession at relevant time i,e, 'time of inspection' but would never establish the possession as lawful. Further , it seems from the perusal of the said report that nowhere in the said report the Nazir has disclosed that on the date of alleged inspection who were present and available in the shop in question. He has simply relied upon the statements of Managers and owner of other shops viz. Shop No,12, Shop No,3 and Shop No,G-5 respectively . It is also surprising that although order for inspection was passed on 3rd October , 2014, then as to why he condu cted inspection after a delay of ten (10) days viz. 13th October , 2014 although in the matters of inspection time factor must always be considered as very important because the site inspection may either be maneuvered for protection of illegal possession or may help to prevent an attempt of illegal dispossession. Thus, contention of the complainant/respondent No,1 that the accused/applicants were waiting for appropriate event to forcibly occupy the shop in question and then get the same inspected through Nazir of the Court at appropriate time, seems to be carrying weight. In the said inspect ion report. while stating that the plaintif f and his advocate accompanied the Nazir at the time of inspection, it was also mentioned. "Notice duly not served upon the defendant ," which also makes the inspection doubtful. According to the complainant/respondent No,1, the accused persons forcibly occupied the shop in question with the help of gunda elements on 13th October , 2014 at 0600 Clock i,e, at 6'0 Clock in the morning and the inspection was carried on the same day at 2.30 p.m. i,e, in the afternoon which seems to be an explanation of complainant/respondent that after forcibly occupying the shop in question in the morning, the accused persons got inspected the shop in questio n through Nazir of the Court on the same day in the afternoon.
28. All the aforesaid facts and circumstances, lead me to no other option but to conclud e that prima facie the applicants have failed to establish their being in 'lawful possession' hence the learned trial Judge has rightly allowed the application under section 7 of the Illegal Dispossession Act, 2005 filed by the complainant/respondent Haji Mohammad Rafiq vide the impugned order and I find no justification to interfere with the same. Accordingly , instant Criminal Revision Application is dismissed. Consequently , impugned order dated 17.08.2016 passed by learned III- Additional Sessions Judge, Karachi South in Criminal Misc. Application No,1514/2014 is hereby maintained.
29. Applicants are directed to make compliance of the impugned order as directed by the trial Court. Let copy of this order be faxed/sent through Sessions Judge concerned for compliance. The trial Court is, however , directed to expedite the trial and conclude it within shortest possible time. However , it is made clear that in case the complainant/respondent No,1 deliberately avoids to proceed with the case and/or longer on the possession of the shop in question on any flimsy ground or lame excuse, the trial Court would be at liberty to recall the impugned order passed on the application under section 7 of the Illegal Dispossession Act, 2005, of course after providing proper opportunity of hearing to him to explain his position.
30. Needless to add that since the matter , in hand, was relating to an interim relief therefore, observations, if any, would not prejudice the merits of the case nor should influence the trial court while concluding the case.
31. These are the reasons for my short order passed in open Court.