AFTAB AHM ED GORAR, J.---The application under section 265-K, Cr.P.C. filed by the applicant before learned XIIth Additional Sessions Judge, Karachi South was dismissed vide order dated 26.03.2019, penultimate para of which is reproduced as under;- "It is on record that complainant is registered owner of the property viz. office No. 10, 8th floor office Tower MA Jinnah Road adjacent to Gul Plaza Karachi and accused is occupying the same having no title document or any license with her. Moreover, the statements recorded by the inquiry officer have supported the version of complainant. Witnesses are yet to be examined; therefore, it cannot be said at this stage there is no probability of accused being convicted of alleged offence.
In view of above discussion, I do not find any substance in the instant application and the same is hereby dismissed with no order as to cost."
2. Being aggrieved and dissatisfied with the above order, the captioned Criminal Revision Application under sections 435/436/439 read with section 561-A, Cr.P.C., is preferred by the applicant on the facts and grounds as set forth in the memo of instant revision application.
3. Arguments advanced by both the sides are considered and record is also perused.
4. Learned counsel for the applicant submitted that there is no evidence in possession of respondent No.1 directly or remotely against the applicant or in support of his case and the prayer is also not maintainable as the applicant being his Ex-wife is not a property grabber and she had committed no offence. He further submitted that applicant is innocent and has been falsely implicated by the respondent No.1 just to harass her and there is no evidence which can connect the applicant.
5. Conversely the complainant appeared in person and submitted that sufficient material is available to connect the applicant in commission of offence. He further submitted that cognizance has been taken and it will be clear from the evidence that applicant has committed the offence.
6. The learned Addl. P.G contended that the applicant has remedy to exhaust before the competent forum/court having jurisdiction for redressal of her grievance.
7. A perusal of record transpires that the cognizance had been taken against Applicants/ Accused under Section 3 of Illegal Dispossession Act, 2005. Subsequently, the applicant had filed an application under Section 265-K, Cr.P.C. for her acquittal, on the ground that there is no probability of her conviction in the complaint even if evidence is recorded and the trial is concluded. The said application was dismissed vide order dated 26.03.2019 which is impugned before this Court through the captioned revision application.
8. The trial court in the order impugned herein has observed that there is no cavil to the proposition that application under section 265-K, Cr.P.C. has to be dealt with strictly on merits in the light of relevant provision of law. Though the application under section 265-K, Cr.P.C. can be filed at any stage i.e. before or after recording evidence. however, while considering the feasibility of application at any particular stage the facts and circumstances of case have to be kept in view.
9. To ascertain the legal implications of Section 265-K, Cr.P.C. in a complaint case, registered under sections 3/4 of Illegal Dispossession Act, the record has been perused. On applicability of Section 265-K, Cr.P.C. in a complaint case, it will be appropriate to discuss here such legal aspect as undisputedly the provisions of Section 265-K,, Cr.P.C. can be invoked at any stage of the trial. Bare reading of Section 265-K, Cr.P.C. reveals that the said section is not meant for the cases registered upon complaint, more particularly, once a cognizance has been taken in terms of sections 3 and 4 of the Illegal Dispossession Act, 2005, the complaint could not have been dismissed summarily, under section 265-K, Cr.P.C. as the remedy under section 3 of Illegal Dispossession Act. 2005 could be invoked by the owner or occupier of the property, who has been dispossessed or whose property has been grabbed or occupied without lawful authority.
10. It is not out of context to mention here that the cognizance under the aforesaid provision was taken by the learned trial court after perusing the report submitted by the SHO concerned. It is an admitted position that both parties are claiming to be the ownership of the property in dispute and to resolve this controversy both parties have to adduce their oral as well as documentary evidence to show their ownership and then the court will determine that as to whether the complainant being occupier or owner of the land in question was illegally dispossessed or not. Deeper appreciation about the merits and demerits of the complaint cannot be gone into, until and unless the material is placed on the record during the trial proceedings by both the parties.
11. Undisputedly, the owner and occupier can approach the court of competent jurisdiction for enforcement of their rights under Illegal Dispossession Act, 2005 and since both parties are claiming their title over the property, the dispute cannot be resolved or decided under Section 265- K, Cr.P.C., by acquitting the accused person. As a sequel to the above, I am of the considered view that the learned trial court after taking cognizance of the matter has correctly dismissed the application filed under Section 265-K, Cr.P.C. which order does not warrant any interference by this court. Resultantly, the Revision. Application is dismissed. However, the trial court is directed to expedite and conclude the trial at an earliest, preferably within a period of three months, on receipt of this order, strictly on merits, by providing fair opportunity to both the parties to adduce oral as well as documentary evidence.