1. MUHAMMAD SALEEM JESSAR, J.---Through this Criminal Revision Application, the applicant has assailed the Order dated 28.5.2016 passed by learned Vth Additional Sessions Judge, Karachi South whereby he dismissed Complaint No.1598 of 2015 filed by the applicant under the Illegal Dispossession Act, 2005.
2. Precisely, the relevant facts giving rise to the filing of instant Criminal Revision Application are; that the present applicant, being attorney of Saleh Muhammad Hussain, filed a complaint under Sections 3,4 and 5 of Illegal Dispossession Act, 2005 stating therein that he is lawful owner of Plot/ House bearing No. 186/2 B.V-3 Street 40th, Off main Ittehad DHA Phase-6 by virtue of registered sale deed dated 01-12-2014. He further alleged that he was residing in the said house for the last ten years and had entered into sale agreement with respondent No.2 Mohammad Ahsan on 15.07- 2012 in respect of selling of the said property to him against sale consideration of Rs. 16 Million, out of which respondent No.2 paid an amount of Rs.96,00,000/- (Rupees Ninety Six Lac only) in two instalments and balance of Rs.64,00,000/- (Rupees Sixty Four Lac only) was agreed to be paid at the time of transfer/ registration of sale deed. He further stated that at the request of the respondent, the complainant/applicant provided him access to the property but the vacant possession was never handed over to the respondent. It was further alleged that on 23.12.2014 at about 9 to 9.30 am. Respondents Nos.1, 3 and 4 illegally took possession of the property and illegally dispossessed the complainant and his family from the property. He further alleged that respondent No.1 has denied to vacate the property in question although having knowledge that the applicant/complainant is the owner of the property in question. It was further stated that the respondents/accused have no locus standi over the property and they have no legal character or right to possess the same. Complainant further stated that cause of action for filing of the present petitioner/complainant arose to him in December, 2014 when the respondent had forcibly entered in the subject property and illegally dispossessed the complainant.
3. The trial Court directed S.H.O. Police Station Darakshan to carry out the investigation and submit his report which was submitted by the S.H.O. Thereafter, the trial Court vide impugned order dismissed the complaint, which gave rise to the filing of instant Criminal Revision Application.
4. I have heard learned counsel for the applicant, learned counsel for respondents Nos. 2 and 3 as well as learned D.P.G. appearing for the State and perused the material available on the record.
5. Learned counsel for the applicant has contended that the impugned order has been passed in a hasty and mechanical manner without applying judicious mind to the factual as well as legal aspects of the case. He further contended that the trial Court erred in dismissing the complaint on the ground that the case is of civil nature and that civil litigations are pending between the parties.
6. According to him, there is no legal bar in continuation of civil as well as criminal proceedings simultaneously. He further contended that at no point of time vacant possession of the property in question was handed over to the respondents but the respondents were allowed access to the property only for renovation purpose. He further contended the trial Court did not take into consideration the factual as well as legal aspects of the case properly and has passed the impugned order in a hasty and mechanical manner which is not sustainable in law. According to him, in view of the facts and circumstances of the instant case, it was incumbent upon the trial Court to have recorded the evidence of the parties and then decided the fate of the complainant which was not done, thus the impugned order is not tenable in law. He prayed for setting aside the impugned order and issuance of direction to the trial Court to proceed with the criminal complaint in accordance with the law. In support of his contentions he relied upon the case-law reported in PLD 2016 Supreme Court 769 (Mst. Gulshan Bibi and others v. Muhammad Sadiq and others), 2016 SCMR 1931 (Shaikh Muhammad Naseem v. Mst. Farida Gul), 2009 SCMR 1066 (Muhammad Akram and 9 others v. Muhammad Yousaf and another), 2010 SCMR 1254 (Mumtaz Hussain v. Dr. Nasir Khan and others), PLD 2010 Supreme Court 725 (Shahabuddin v. The State), PLD 2010 SC 661 (Bashir Ahmed v. Additional Sessions Judge) and (2012 SCMR 1533) (Habibullah v. Abdul Manan).
7. Conversely, learned counsel appearing for respondents Nos. 2 and 3, while supporting the impugned order, contended that the same has been passed in accordance with law after properly taking into consideration factual and legal aspects of the case. According to him, the criminal complaint under the Illegal Dispossession Act, 2005 was not maintainable as admittedly the respondents have been in possession of the premises in question prior to filing of the complaint. He further contended that the question of title / ownership cannot be decided in the proceedings under the Illegal Dispossession Act and it is only the Civil Court of competent jurisdiction to determine such fact. He further contended that various civil litigations have been filed by the parties against each other and certain civil litigations are still pending before the concerned courts, as such the complaint was rightly dismissed by the trial Court. He prayed for dismissal of instant Cr. Revision Application. In support of his contentions he relied upon the -case-law reported in, PLD 1970 SC 470, PLD 2009 SC 404, 2010 SCMR 1254, PLD 2016 SC 769, 2012 PCr.LJ [Lahore] 1405, 2013 YLR 1088 [Sindh], PLD 2009 Peshawar 81, 2008 MLD 1702, 2013 YLR 133, 2010 YLR 593 and 2000 SCMR 122.
8. On the other hand, learned D.P.G. appearing for the State, while adopting the arguments advanced by the counsel for private respondents, stated that the impugned order has been passed in accordance with law and the same does not call for any interference by this Court in exercise of its revisional jurisdiction. She also prayed for dismissal of the Criminal Revision Application.
9. The perusal of the impugned order prima facie shows that the learned trial Court seems to have departed from certain principles of law, so enunciated by honourable Apex Court while dealing with question of maintainability of a complaint under Illegal Dispossession Act. None can deny the binding effects of such enunciated principles of law hence 1 ,feel it quite justified to attend such observation (s) of learned trial Court Judge first.
10. The learned trial court judge did observe in the impugned order that where civil litigation with regard to illegal dispossession from immovable property is pending between the parties, the proceedings under the Illegal Dispossession Act cannot be maintained is concerned, I am unable to agree with such a finding because such a view shall not only prejudice the very object of the Act.
11. I would add that the Act, being a special enactment, was / is always to be taken as an 'addition' to what such a victim already has in 'ordinary law'. No doubt, the provisions of the Act legally cannot be taken as a substitute to what could only be determined by a competent 'Civil Court' but similarly the 'object and purpose' thereof cannot be defeated for reason that one has approached to a 'civil court' if commission of an offence, within meaning of the Act, is otherwise made out. I would also add that purpose and object of the Act needs to be kept in view which has got nothing to determine title of the 'owner' or 'occupier' but his otherwise guaranteed right to have protection to an 'immoveable property'. I would go a little further that since law is quite clear and obvious that no one is , permitted to take the law into his own hands but was / is always required to follow the law. Thus, even if one is claiming an agreement in his favour yet he is not legally entitled to enter into or upon the subject property (immoveable) but if there is any denial to his right to 'possession' he shall be required to have possession by following the procedure i.e. 'filing a suit for such relief. Similarly, if one (falling within meaning of owner or occupier) alleged one to have unlawfully entered into or. upon his immovable property or claims to have been dispossessed forcibly or wrongfully then he can competently file a complaint under the Act without prejudice to his rights to resort other available legal remedies which are not limited but includes 'civil remedy'.
12. This could well be defined from another angle. Legally, an 'agreement', at the most, creates a right to get enforcement of all rights, interests and privileges, through competent court of law if one complains infringement of any such right etc but no where would authorize him to get such claimed right etc. at his, own without resorting to course, provided by the law. Similarly, a grievance of illegal possession or forcible or wrongful dispossession would not ipso facto authorize the aggrieved to take possession but would certainly give a right to such aggrieved to have 'possession or removal of illegal possession' . Any departure from either sides' shall be nothing but a violation of law. Reference may well be made to the case of Government of Sindh through Secretary and DG Excise and Taxation and another v. Muhammad Shafi and others PLD 2015 SC 380 wherein it is held as:-- "It is settled principle of law that where law requires an action to be done in a particular manner, it has to be done accordingly and not otherwise. At this point, we may also add that if an act is done in violation of law, the same shall have no legal value and sanctity, especially when the conditions/ circumstances which may render such an act invalid have been expressly and positively specified in law."
13. Since, the Act itself provides a remedy on a grievance of illegal possession and forcible / wrongful dispossession, therefore, such complaint would be maintainable regardless of pendency of any 'civil litigation' if prima facie the complained possession is without lawful authority. In short, principles of Lis Pendens and Res Subjudice are not applicable in such like cases.
14. Further, I would say that such question already stood answered by honourable Apex Court in the case of Sheikh Muhammad Naseem v. Mst. Farida Gul 2016 SCMR 1931 wherein such question was not only discussed but answered as:- "5. In the impugned judgment it was also held that where civil litigation with regard to illegal dispossession from immoveable property is pending between the parties, the proceedings under the Illegal Dispossession Act, 2005 cannot be maintained. This finding is also based on the decision of the Lahore High Court in Zahoor Ahmed's case (PLD 2007 Lahore 231, reasoning of which was adopted by three member bench of this Court in Bashir Ahmed's case (PLD 2010 SC 661). We are of the view that such a finding is also not sustainable in law. Any act which entails civil liability under civil law as well as criminal penalty under criminal law, such as the Illegal Dispossession Act, 2005 then a person can be 'tried under both kinds of proceedings, which are independent of each other. Once the offence reported in the complaint stands proved against the accused within the confines of the provisions of the Illegal Dispossession Act, 2005 then he cannot escape punishment on the ground that some civil litigation on the same issue is pehding adjudication between the parties. ...Therefore, irrespective of any civil litigation 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.
15. The above principle, since stood enunciated by the honourable Apex Court, hence leaves no courts, including High Courts, to make any departure from such principle. Reference may well be made to the case of Mirza Shaukat Bain v. Shahid Jamil PLD 2005 SC 530 wherein it is observed as:- 30....that the judgments of this Court being apex Court are binding upon the learned High Court in the view of the provisions as enumerated in Article 189 of the Constitution of Islamic Republic of Pakistan which, inter alia, provides that any decision of the Supreme Court shall to the extent that it decides a question of law or is based upon or initiate a principle of law shall be binding on all other Courts in Pakistan and the learned Lahore High Court is no exception to it...
16. Further, perusal of the impugned order shows that the trial court has placed it's reliance upon the cases of Bashir Ahmed v. Additional Sessions Judge (PLD 2010 Supreme Court 661) and Habibullah v. Abdul Manan (2012 SCMR 1533) (supra) without appreciating the dictum laid down by the Honourable Supreme Court of Pakistan in the case of Mst. Gulshan Bibi and others v. Muhammad Sadiq and others (PLD 2016 Supreme Court 769), whereby the captioned law has been declared to be not good law.. It will be conducive to reproduce the relevant Paragraph-9 of the judgment from the case of Mst. Gulshan Bibi and others (supra), which reads as under:-
9. In view of the above conclusion, we hold that the first set of cases Muhammad Akram v.
17. Muhammad Yousaf (2009 SCMR 1066), Mumtaz, Hussain v. Dr. Nasir Khan (2010 SCMR 1254) and Shahabuddin v. The State (PLD 2010 SC 725) is good law whereas the finding arrived at in the second set of cases i.e. in the case of Bashir Ahmad v. Additional Sessions Judge (PLD 2010 SC 661) and followed in the case of Habibullah v. Abdul Manan (2012 SCMR 1533) which restrict the scope and applicability of the Illegal Dispossession Act, 2005 is not a good law. Resultantly, Civil Petition No. 41 of. 2008 is converted into appeal and allowed. Likewise, Civil Appeals Nos. 2054/2007 and 1208/2015 are also allowed. The impugned judgments in all three connected cases are set aside and the cases are remanded back to the High Court for their decision afresh on merits in accordance with law."
18. It needs not be reiterate that every judge is always supposed to have all laws of the lands on his sleeves which (laws of lands) shall always include the principles, so enunciated by honourable Apex Court. Once, the honourable Apex Court declares an earlier view of its own court as 'not good law' then same needs not be 'referred' nor needs to be 'followed'. Such liability equally falls upon the counsel (s) as they (counsels) are legally believed to assist the Court (s) in reaching the just conclusion. I do not want to go in deep on such approach of the trial court judge but do hope that in future such principle shall always be followed.
19. Now, would revert to merits of the case but first would have a direct referral to Section 3 of the Act which reads as:-
3. Prevention of illegal possession of property, etc.---
(1) No one, shall enter into or upon any property to dispossess , grab, control or occupy it without having any lawful authority to do so with the intention to dispossess, grab, control or occupy the property from owner or occupier of such property.
(2) Whoever contravenes the provisions of the, subsection (1) shall,....
(3) Whoever forcibly and wrongfully dispossesses any owner or occupier of any property and his act does not fall within subsection (1), shall be punished with imprisonment which may extend to three years or with fine or with both, in addition to any other punishment to which he may be liable under any other law for the time being in force. The person dispossessed shall also be compensated in accordance with provisions of section 544-A of the Code)
20. The provision of the section 3 of the Act prima facie has been parted in two parts. First one i.e. section 3(1) speaks about prevention of illegal possession while the later i.e. 3(3) speaks about illegal and unauthorized dispossession. To make out an offence within meaning of section 3(1) of the Act, the complainant is required to establish nothing but that one (accused) has entered into or upon an immovable property without lawful authority with an intention to dispossess, grab, control or occupy the property. Reference may well be made to the case of Gulshan Bibi v.
21. Muhammad Sadiq PLD 2016 SC 769 wherein it is held as:-- "7. ....Section 3(1) of the said Act by using the terms 'anyone' and 'whoever' for the offenders clearly warns all persons from committing the offence described therein and when found guilty by the court are to be punished without attaching any condition whatsoever as to the maintainability of the complaint. So all that the Court has to see is whether the accused nominated in the complaint has entered into or upon the property in dispute in order to dispossess, grab, control, or occupy it without any lawful authority. Nothing else is required to be established by the complainant as no precondition has been attached under any provision of the said Act which conveys the command of the legislature that only such accused would be prosecuted who holds the credentials and antecedents of 'land grabbers' or 'Qabza Group' ....
22. From above, it is also quite obvious that section 3(1) of the Act is not subject to a complaint of dispossession but there has been deliberate use of phrase 'entry without lawful authority'.
23. Though, undeniably the parties have entered into an agreement of sale which, legally, does create certain rights in favour of the 'vendee' but if such agreement is not coupled with delivery of possession the 'vendee' under garb of such agreement would not be entitled to have possession or control of such property but would be required to seek enforcement of all such rights e.t.c., including possession by way of filing a suit. I am guided in such view with the case of Syed Imran Ahmed v. Bilal and others PLD 2009 SC 546 wherein it is observed as:- "5. It is principle too well, established by now that a sale agreement did not itself create any interest even a charge on the property in dispute that unlike the law in England, the law in Pakistan did not recognize any distinction between the legal and equitable estates, that a sale agreement did not confer any title on the person in whose favour such an agreement was executed and in fact it only granted him the right to sue for such a title and further that such an agreement did not affect the rights of any third party involved in the matter. It may be added that till such time that a person suing for ownership of a property obtains a decree for specific performance in his favour, such a person cannot be heard to deny the title of the landlord or to deprive the landlord of any benefits accruing to him or arising out of the property which is the subject-matter of the litigation.
24. Postponing the ejectment proceedings to await the final outcome of a suit for specific performance would be causing serious prejudice to a landlord and such a practice, if approved by this Court, would only give a license to un-scrupulous tenants to defeat the interests of the landlords who may be filing suits for specific performance only to delay the inevitable and to throw spanners in the wheels of law and justice.
25. I, while insisting, would clarify that if the possession is with reference to an obligation, arose out of the agreement then such possession/entry would not qualify the term 'without lawful authority'.
26. Thus, while dealing with such plea even while dealing with question of maintainability of a complaint under the Illegal Dispossession Act the Court (s) must keep such difference in view.
27. Now, I would attend the contention of learned Counsel for Respondents that the Respondents had not illegally dispossessed the applicant / complainant but the disputed property was sold out by the applicant / complainant to them and therefore, certain suits for Specific Performance, Declaration as well as possession were filed by the either side, thus, no criminal case in terms of the, provisions of Illegal Dispossession Act, 2005, was made out. Prima facie, the respondent No.2 claims to have been in possession with reference to the agreement of sale which (agreement to sale), no where, indicates about putting of respondent No.2 into vacant possession of such property. At this juncture, it would be conducive to refer the paragraph "1-B" of such an agreement, which reads as under:-- "1 1-A.......
28. 1-B. That the Vendor received Rs.8,000,000/-(Rupees Eighty One Lacs only) and gave permission to start renovation work under the relevant of DHA Laws. He reserves right of making regular / normal visits and the Vendee has also signed undertaking for verbal taking over the possession for renovation/repair purpose."
29. Without saying any thing about legality or otherwise of such an agreement, the above term of the agreement prima facie shows that the possession was never handed over to the 'vendee'
30. (respondent No.2) but he was only permitted to start renovation / repair work. Thus, his entry into property was for such purpose only and cannot be exploited for any other purpose including one of grabbing or controlling the subject matter particularly when such permission (right to renovate / repair) was admitted to be with right of owner to have free access to visit the property.
31. Be that as it may, since, per the above referred term of the agreement, it is evident that the vendee (respondent No.2) also did execute an undertaking in terms of the agreement dated 15.07.2012. It will be conducive to reproduce the undertaking given by the Respondent No.2 / accused, which reads as under:- UNDERTAKING I, MUHAMMAD AHSAN SON OF MR. MUHAMMAD KAZIM QURESHI, Muslim, adult, Resident of House No.19/5-J, Nazimabad No.1, Karachi holding CNIC No.42101- 6142742-1, do hereby undertake and confirm as under:- 1) That I have entered an agreement of sale for purchase of 50% un-divided share in Double Storied (Ground Plus One) Bungalow bearing No.186 out of total measuring 600 square yards 40th Street, B.VIII, Phase-VI, situated at Pakistan Defence Officers Housing Authority Karachi with Mr. Shazeb son of Mr. Saleh Muhammad Hussain (NIC No.42301-4619056-7) owner of the said Bungalow) according to my entire satisfaction.
32. 2) That I hereby undertake and confirm that the owner has only given 'permission to me for renovation/painting and alteration of bathroom of the 'above house.
33. 3) That I hereby further undertake and confirm that I will not move any household items in the said House before full and final payment/registration of Sale Deed along with proper handing over the physical possession of the said Bungalow.
34. 3) That I hereby further undertake and confirm that I will also abide by the rules and regulation of Agreement of Sale dated 15/07/2012 and I will also abide by all the rules and regulations of Pakistan Defence Officers Housing Authority Karachi during renovation of the House.
(4) That I will carryout the repair/renovation at my own cost and risk and in case of any damage to the neighboring house I will be fully responsible to bear all losses/damages.
(5) That whatever has been stated above is correct and true to the best of my knowledge and belief.
35. Sd/- MUHAMMAD AHSAN DEPONENT" From above, undertaking, it also stands clear that there had never been any delivery of possession in favour of the vendee (respondent No.2) rather he (vendee/respondent No.2) himself admitted that the proper delivery of possession was to take effect at time of full payment. Thus, such entry was / is prima facie cannot be said to be with a lawful authority to have possession and control over such property. In consequence to what has been discussed above, I would say that such contention of the learned counsel for the respondent No.2 carries no weight. The position, being so, prima fade would lead to no other conclusion that possession of the vendee (respondent No.2) even with reference to sale agreement cannot be said to be with lawful authority hence, prima facie, a complaint within meaning of section 3(1) of the Act only is made out and requires proper trial thereof.
36. As regard pendency of civil litigation (filing of suit for Specific Performance of Contract etc) it would suffice to say that mere pendency of such lis would never debar entertaining a E complaint under the Act if, otherwise, an offence within meaning of the Act appears to have been made out.
37. Reference may well be made to the dictum laid down by the, Honourable Supreme Court of Pakistan in the case of Mst. Gulshan .Bibi and others (supra).
38. The upshot of the discussion made hereinabove and while relying on a the dictum laid down by the Honourable Supreme Court of Pakistan in the case of Mst. Gulshan Bibi (supra), I am of the considered view that this is a case where controversy with regard to the Illegal possession is to be thrashed out through evidence. Accordingly, the instant Criminal Revision Application is allowed.
39. The impugned order dated 28.05.2016, penned down by Additional Sessions Judge-V, Karachi (South), is hereby set aside and the case is remanded back to the trial court with direction to record the evidence of the parties and decide the case in accordance with law after providing opportunity of hearing to both sides.
40. While parting,, needless to add that trial of such complaint would not prejudice the merits of the civil litigations, pending between the parties, nor the trial court shall be influenced with observations, if any, made here-in-above, while evaluating the evidence. There however shall be no departure to principles, enunciated by honourable Apex Court.