FAHIM AHMED SIDDIQUI, J.---By filing the instant criminal revision application, the applicant has assailed the impugned order dated 12-10-2015 passed by the learned Additional Sessions Judge-I, Karachi East in Criminal Complaint No.89/2014 filed under Sections 3 and 4 of the Illegal Dispossession Act, 2005 (hereinafter 'the IDP Act'). Through the impugned order, the learned trial Court has dismissed the said criminal complaint with the observation that the applicant may approach the appropriate civil forum for redressal of his grievance.
2. Succinctly, the facts of the instant criminal revision are that the applicant/ complainant has filed a complaint under the IDP Act, regarding Plot No. C/192;- Sector 32/A, Korangi Township, Karachi, measuring 448 square yards. He claimed the ownership of the indicated plot on the basis of a registered sale deed, which was originally leased out in the name of Mst. Fozia wife of Akbar Ali.
Purportedly, after the execution of sale deed, the possession of the indicated plot was handed over to him.
Allegedly, in September 2011, the complainant went to Punjab due to some domestic affairs and on 15-10-2011, his friend informed him that the respondents have forcibly occupied the said property by breaking the locks. The complainant returned to Karachi on 20-10-2011 and approached the ADO (KDA wing), CDGK for removal of encroachment, who issued a letter to the respondents on 28-11-2012 but in vain. Since the property was not mutated in his name; therefore, the complainant initiated the mutation process and subsequently the same was mutated in his name. After getting the property mutated in his name, the complainant approached to the respondents on 06.10.2014 and requested them to vacate the same but they became annoyed and manhandled the complainant. After such an incident, the complainant approached the lower forum, where he filed an IDP complaint, which was later on dismissed through the impugned order.
3. Ms. Kauser Ameen, the learned counsel for the applicant argued the matter at length. After describing the background of the entire case, she submitted that since the applicant has a registered sale deed coupled with the mutation in his name; therefore, he had a preferential right against all the other claimants. She submitted that the said property was actually an open plot in the year 2014 and the respondents have forcibly occupied the same, as such the IDP complaint is the proper remedy available to the applicant. She submitted that the applicant, being owner and occupier of the property in question, may initiate the criminal proceedings under Sections 3 and 4 of the IDP Act 2005. In support of her contentions, she relied upon Rahim Tahir v. Ahmed Jan and 2 others (PLD 2007 Supreme Court 423) and Abdul Hafeez v. Additional District Judge-VH, South Karachi and others (PLD 2009 Karachi 350).
4. On the other hand, Mr. Qureshi, the learned Counsel for respondent No. 1, submitted that the applicant has not approached the Court with clean hands and he had no preferential right over the subject plot. He submitted that the applicant has got a false lease deed executed in connivance with some of the officials and when the respondent came to know about the same, he had challenged the same by filing a Civil Suit No. 378/ 2019, wherein he had sought cancellation of the said document. He submitted that the indicated plot was actually allotted in the name of the predecessor-in-interest of the respondent from whom it was purchased by the applicant. Mr. Qureshi further submitted that the original allotment order in the name of Mst. Fozia is in possession of the respondent and if the applicant is a genuine person, he must assure the original allotment order. According to him, the respondent has purchased the plot in question through a registered power of attorney much prior to the alleged lease deed and sale deed and being an earlier registered document, the said power of attorney prevails on all the subsequent documents. He submitted that the applicant is trying to dispossess the respondent through a criminal proceeding based upon a false document. He submitted that the proper course in the existing situation is to initiate civil proceedings instead of taking criminal action. In the end, he strongly supported the impugned order and submitted that the same should be upheld. He relies upon Zahid Hussain v. Muhammad Hassan Saleem Vato and others (2015 PCr.LJ 308), Alamgir Khan v. Ghulam Rasool and others (2015 YLR 2512), Muhammad Qasim v. SHO, Police Station Khudabad, Dadu and others (2016 MLD 1238), Waqar Ali and others v. The State (PLD 2011 Supreme Court 181) and Nazir Ahmed v. Tanveer Ahmed and others (2007 YLR 2236). Learned DPG also supported the impugned order.
5. I have heard the arguments advanced and have gone through the relevant material available on the record in respect of the disposal of instant criminal revision application. I have also enlightened myself from the case laws cited by either side during the course of arguments.
6. In the instant case, the applicant is claiming that he has purchased the said property from the original owner/allottee through a registered sale deed. The respondent No. 1 is also claiming his right over the property through a sale agreement coupled with a registered Power of Attorney executed by the original allottee. He has also challenged the veracity of leased deed through a civil suit, which is pending adjudication. It is claimed by the applicant that after purchasing the indicated plot he left to the Punjab in the year 2011, when the 'respondent illegally occupied the same. The learned counsel for the applicant submitted that the subject property was an open plot and it remained an open plot till 2014. The applicant in his complaint states that the respondents have entered into the property in 2011 after breaking the locks. If it was an open plot then how the locks can be broken. The applicant also contends that he got the property mutated after illegal dispossession by the respondents. On the other hand, the respondent No. 1 claimed that the same was already built-up since long and the family of the respondent and others are residing therein. The learned counsel for respondent No. 1 has placed on record certain utility bills showing the use of utilities much earlier than the year 2014 or 2011. In such a situation, a doubt regarding the entire affair arises. It is a settled legal proposition that in a criminal case either initiated through FIR or private complaint, the benefit of doubt always goes in favour of nominated or proposed accused.
7. Another aspect of the case is important. The applicant claims that he is the owner of the property based on some registered sale-deed. The respondents have already cast clouds over the lease deed by filing a civil suit.
A complaint under IDP Act is not meant either to equate a civil proceeding or to frustrate a civil suit. In the present case, the applicant and respondent claimed that they had purchased the property from the original allottee, who allegedly executed a sale agreement coupled with registered power in favour of the respondent and subsequently a sale deed was also registered in favour of the applicant. Purportedly, the said original allottee has got the indicated plot leased in her name and then sold out to the applicant. Now two registered documents are in the field, allegedly executed by the same person, and their eminence can only be decided through a civil suit. The respondent No. 1 has filed a civil suit wherein the actual status of lease of the indicated plot is yet to be determined. The learned counsel for the applicant has relied upon the case of Rahim Tahir (supra) and Abdul Hafeez (supra) in which extent and scope of the IDP Act are discussed and held that against illegal occupants, an action under Sections 3 and 4 of the IDP Act can be taken. Nevertheless, in the present case, the respondent No. 1 is claiming his right over the indicated plot on the basis of a registered Power of Attorney coupled with a Sale Agreement. In such a situation, it cannot be said that he is under occupation with some mens rea, coupled with actus reus which is the necessary ingredient for a criminal action against the respondents. While dilating upon the same issue, the Hon'ble Supreme Court has observed in the case of Waqar Ali (supra), as under: "It is clear from section 3 ibid that in order to constitute an offense thereunder the complaint must disclose the existence of both, an unlawful act (actus reus) and criminal intent (mens rea). In view of the allegations and circumstances considered above, it is apparent that even if it is ultimately established that the appellants are in occupation of an area owned by the respondent-complainant, there is no indication that they also had the necessary criminal intent. On the contrary, the averments in the complaint point in the opposite direction and show at best, that there is a dispute of a purely civil nature between the parties as to the exact location of their respective parcels of land. It is in these circumstances, and with the aforesaid background in mind that learned counsel for the respondent-complainant was asked to state if an inadvertent encroachment would constitute an offence under section 3 of the Act. He replied in the affirmative. We are afraid his response is against the express wording of the statute which requires the existence of a guilty intention for the purpose of assuming jurisdiction. For reasons considered above, guilty intent, does not exist in the present case."
8. No doubt, a criminal and civil proceeding can be initiated simultaneously but it is not an inflexible rule. It happens that a cause involved between the parties had overtones of a civil dispute with certain criminal facets. I am of the view that it will not be proper to give a criminal twist to such a dispute which mainly of a civil nature to bring the same within the scope of some penal section. Such a tactic is usually used with the intention to pressurize the opponent party, which cannot be appreciated.
I am of the view that unless the fate of the two registered documents is not decided through a civil action, a criminal action under the IDP Act will not be proper.
9. With the above observations, the instant criminal revision application is dismissed.