FAHIM AHMED SIDDIQUI, J.---By filing the instant criminal revision application, the applicant has questioned. the legality and propriety of the impugned judgment dated 24-03-2017 passed by Atlditional Sessions Judge-IV , Karachi East in Criminal Complaint No. 26/2014 filed under Section 3 of Illegal Dispossession Act. Under the verdict of impugned judgment, the learned trial Court, after a full-fledged trial, came to the conclusion that a case of illegal dispossession was not made out, as such the criminal complaint filed by the applicant was dismissed and respondent present before the court was acquitted.
2. The matrix of the prosecution case is that the applicant (complainant) is claiming that he is the lawful owner of property bearing Shop No. 4, 2nd Floor , Block-B. Taj Medical Complex, Karachi measuring 900 square yards since 1984. The applicant after completing his MBBS went to UK for higher studies/specialization and could not return to Pakistan till October 2012. However in his absence, he authorized his cousin namely Syed Hassan Masoom for looking after his shop. His cousin used to come to his shop once in a month but due to his serious illness, he could not look after the shop; therefore, the respondents broke open the locks and occu pied the shop in the year 2005.
When the applicant came to Pakistan in October 2012 and visited the shop, he found respondent No. 1 occupying a portion of the shop wherein he was running a business of medical store in the name and style of "Tayyab Medical Store". The remaining portion was locked but the locks were changed and it came to the knowledge of applicant/ complainant that respondent No. 2 had illegally occupied the remaining portio n of the shop. The applicant/ complainant sent a notice to respondent No. 1 which was not replied. The applicant/complainant had also filed a similar complaint earlier but the same was dismissed on the ground that title documents were not available with the applicant/ complainant. The dismissal judgment of earlier complaint was challenged before this Court but the same was dismissed with direction to file a fresh complaint after completing the requisite formalities, Hence, the applicant/complainant filed the complaint afresh before the lower forum, which, met the ill-fated dismissal under the impugned judgment.
3. In support of the instant criminal revisio n, the learned counsel for the applicant submits that the applicant is the lawful owner of the premises, which was purchased by him from the builder directly and such proof is available with the applicant/complainant and the same was placed before the learned trial Court but the same was not properly appreciated by the learned trial Court. According to her, the applicant/complainant has booked the Office No. 4 2nd Floor , Block-B, Taj Medical Complex, Lines Area Redevelopment Project, KDA Scheme No. 35. M. A. Jinnah Road, Karachi directly from the builder Messrs Bajwa Sons Constructors and Developers (Pvt.) Limited and it was booked in the name of applicant and it was subleased. to him as a single unit. She submits that there was no provision under the sublease to bifurcate it, as such there was no question of giving or renting out the same to anyone else including respondents. He further submits that the respondent has entered into the premises illegally and his claim of tenancy is false as it was never rented out by the applicant/complainant to the respondent or any other person.
According to her, respondent No. 1 claims that he has taken the said property , on rent from one Naveed Yunus after paying Rs. 500,000/- as pugree but the said Naveed Yunus himself has no right over the premises in question. She submits that in fact respondent No. 1 is available within the premises of applicant as such he is the person who has illegally dispossessed the applicant from the said property .
4. Conversely , the respondent No. 1 submits that he has obtained the premises on tenancy after paying pugree of Rs. 500,000/- as such he cannot be termed as illegal occupier of the premises in question. He further submits that he has also filed a suit against Naveed Yunus with prayer that he should not be dispossessed from the premises without due course of law and the same was decreed in his favour . He suppor ts the impugned judgement by submitting that the learned trial judge after going through the entire material has pronounced a verdict which is just and proper .
5. I have heard the arguments advanced and have 'gone through the relevant record available before me. It is the case of the applicant that he is the owner of the premises and in support of his contention; he has produced a sublease executed in his favour . It will make no difference that the date of execution of sublease is comparatively fresh one. It is a factual position that Sub-Lease is a registered document executed in favour of applicant and as long as a registered document remained in field, it will be considered as genuine. Besides, the respondent No. 1 is not claiming the ownership on the premises in question but he claims himself as a tenant on pugree basis.
Nevertheless, his plea regarding tenancy is also not sustainable as to the status of Naveed Yunus as landlord is not clear . If the said Naveed Yunus is neither the owner nor he was authorised to enter into tenancy agreement than the status of respondent No.1 will not be more than an encroacher .
6. On the other hand, the respondent No. 1 has taken plea of tenancy and not the ownership of the premises. He himself has stated, that he was inducted in the premises by a person namely Naveed Yunus and the same plea was taken by him before the lower forum . Even, the address of said Naveed Yunus is available in the title of suit filed by respondent No.2 against him and the copy of the same is available in the record. The applicant after getting such information did not try to associate the said Naveed Yunus as one of the respondent in his complaint of illegal disposition. It is worth noting that in the earlier complaint, he did not associate Naveed Yunus as one of the respondents and at the time of filing of the 2nd complaint, he avoided to do so.
7. It has been observed that the oversea s Pakistanis are deprived from their valuable properties by playing tricks from encroachers and illegal occupiers. It has come on the record that the property in question belongs to the applicant as sublease is executed in his favour . So far there is no adverse claim against him from respondent No. 1 or any other person, as such his owners hip is not disputed. Contrariwise, it cannot be said with certainty that the respondent No. 1 entered into the premises in question with intention to deprive the applicant from his property .
The said Naveed Yunus is out of pictur e since long and if he was not an authorised person in respect of the property in question, then respondent No. t will be in real difficulty in respect of his rights as tenant. Nevertheless, in such a situation the status of respondent No. 1 will be no more than an encroacher .
8. The respondent No. 1 continuously claims that he is the tenant and he was inducted in the premises as tenant by a person namely Naveed Yunus and he has placed on record not only a rent agreement but also the documents pertaining to a suit filed by respondent No.1 against him (Naveed Yunus) with a prayer that he should not be dispossessed without due course of law and the said suit was decreed in his favour . However it is also a fact that Naveed Yunus did not bother to appear in the suit filed by the respondent No. 1 and the same was decreed ex- parte in his favour . Nonetheless, a decree in favour of the respondent No.1 restraining to dispossess the respondent No. 1 without due course of law will not amount to give him a perpetual right over the property in question. As I have discussed above, in case Naveed Yunus is not an authorised person, the status of respondent No. 1 will not more than an encroacher without a criminal intent (mens rea) of dispossession of the applicant. It is astonishing that the applicant has not made the said Naveed Yunus as an accused/respondent in the present case.
It is necessary at the time of dealing with a complaint under the Illegal Dispossession Act, that the complainant should specifically describe the unlawful act of dispossession (actus rea) by complete detail of action done by all those, who are responsible for his dispossession of the property illegally and nominate them as proposed accused in the complaint. What is more, it is also necessary for a complainant to establ ish that there exists a clear-cut criminal intention (mens rea) on the part of such proposed accused. I am of the view that in absence of descrip tion of unlawful act (actus rea) and a wilful knowledge a belief that he is doing an unlawful act (animous nocendi) or criminal intention (mens rea), a complaint under Illegal Dispossession Act, 2005 even against an encroacher cannot succeed. It is a settled principle of criminal law that the person, who alleg es some fact, has to prove the same without reasonable doubt. In this regard reliance is placed on the case of Waqar Ali and others v. The State and others (PLD 201 1 SC 181 ).
9. Now I would like to discuss about the applicant/complainant case. It is the case of the applicant/complainant that he is the owner of the premises and has purchased the same directly from the builder . Subsequently , he succeeded in getting execution of sublease in his favour . As long as the sublease is intact, apparent status of the applicant/ complainant as the owner of the property will be acceptable in the eyes of law However , the applicant could not establish his case before the trial Court as some of the important witnesses were not examined by the applicant. Besides, the applicant could not appreciate that in the peculiar circumstances of the case, Naveed Yunus is also a necessary party and his name is to be included as accused/respondent. I am of the view that an important witness of applicant is his cousin namely Hassan Masoom Case such he should be produced before the trial court as witness or a reason is to be given by the applicant for his non-examining. As a routine and to fulfil the requirement of law, a complaint under the Illegal Disposition Act, is sent for investigation. The officer who has conducted investigation was also not called by the applicant to examine before the trial Court. The applicant may move an application for calling the of ficer who conducted investigation, as court witness but he avoided to do so.
10. From the above discussion, it is clear that the applicant/ complainant remained fail to establish its case against the respondent No.1, as such the complaint was rightly dismissed by the trial Court, as such the instant criminal revision is dismissed. However , the applicant is at liberty to file a fresh complaint or seek any other remedy available to him under the law , if he is advised so.