KHADIM HUSSAIN SOOMRO, J. Through this Criminal Revision Application, the applicant has impugned the order dated 28.02.2023, passed by learned 4th Additional Sessions Judge, Dadu, in Criminal Complaint bearing No.06 of 2023, under Sections 3, 4, 5, 6 and 8 of the Illegal Dispossession, Act, 2005 whereby the complaint filed by the applicant/complainant was dismissed.
Hence, the applicant prefers this Revision.
2. The brief facts of the case are that the applicant/complainant has the business of real estate in the local limits of Taluka Mehar while the accused is the feudal lord of the locality. The applicant/complainant purchased landed property bearing survey No. 299 (5-2) and survey No. 308 (1-34), a total' area of 6 Acres 36 Ghuntas in Deh Betto Taluka Mehar District Dadu (Subject Land) from the respondent No. 1/accused in November 2020, through sale agreement dated 20-11- 2020. The possession of the subject land was handed over to the applicant/complainant at that time on part payment, while the remaining amount was to be paid by the applicant in instalments.
In case of failure from either side, the fine amount was fixed. The applicant/complainant spent a huge sum of Rs 70,00 000/ (Rupees Seventy Lacks) on the subject land for levelling and drainage to make it suitable for sale and use for residential purposes. The respondent, Ihsan Ali Khan Jatoi, at first revoked the contract of sale agreement by sending an illegal, illogical and unjustified legal notice, which was adequately replied to by the applicant/complainant as there was no such condition to revoke the sale agreement or by making false pretext delay in the payment of remaining consideration amount and revocation of the contract. However, there was only one security clause for the interest of the seller to claim a fine amount of Rs 50,000,00/ (Rupees Fifty Lacs) in case of default from their side. The complainant paid most of the consideration amount as per terms and conditions settled in the agreement and was waiting for the seller/accused to receive the balance amount outstanding against them and execute the registered sale deed, but the delay was caused by the accused consequently the Flood came which endangered and damaged the whole infrastructure and lives of the people in the locality. On 26-11-2022, at 11 AM when, the complainant, along with his brother Ali Asghar, son of Khan Muhammad Mahessar and Zulfiqar Ali, son of Muhammad Hassan by caste Sodhar resident of village Banhon Sodhar Taluka Mehar, was present at the subject land, then accused Ihsan Ali Khan, son of Abdul Hameed Khan Jatoi, resident of Village Betto Taluka Mehar District Dadu, along with 8 unknown accused persons duly armed with deadly weapons came there, and illegally dispossessed the applicant, and his brother issuing threats of murder that if they ever come again to the subject land, they would face dire consequence. By doing such an act of illegal dispossession, the accused had committed an offence under Section 3(1) of the Illegal Dispossession Act, 2005 (The Act), hence, they were liable to be convicted under Section 3(2) of the Act. The complainant/applicant approached the trial court to take cognizance of the offence with the following prayers:
(A) That this Honourable Court may be pleased to take cognizance of the offence under section 3 of Illegal Dispossession Act, 2005 and punish the accused for the offence committed by them.
(B) That the accused may be directed to hand over vacant possession of the land to the complainant and in case of the failure from the part of accused the concerned SHO may be called and directed to take possession and hand over the same to the complainant.
(C) Whatever relief this Honourable Court deems fit and proper in the circumstances.
3. After filing of the complaint, the report from concerned Mukhtiarkar and the SHO PS Mehar was called; meanwhile, the accused, No.1, appeared through his counsel and submitted objections to the complaint. In the wake of considering the submissions and the reports from concerned Mukhtiarkar and SHO, the trial court passed the impugned order, dated 28-2-2023, wherein the complaint of the complainant was dismissed by the trial court relying on the case law reported in 2011 YLR 677 and 2020 PCr.LJ 2020 (Balochistan). Hence, the instant Revision.
4. Learned counsel for the applicant/complainant submits that the subject land was purchased by the applicant through an agreement to sale dated 20-11-2020, for consideration and possession of the subject land was handed over to him; he further submits that the execution of the sale agreement has not been denied by the respondent/accused; even in the legal notice issued by the respondent which was filed along with the statement filed by learned counsel for the applicant admits the execution of the agreement; the counsel further argue that the applicant has set forth the incident of dispossession which is categorically mentioned in the paragraph No. 09 of his complaint; the counsel refers the legal notice wherein the respondent claim that he has taken the possession back from the applicant, which is not warranted by the law; he further argues that the Mukhtiarkar report demonstrates that the same was prepared by the Tapedar of the beat and not by the Mukhtiarkar; he further reffered to the police report which reveals that statement of the witnesses who supported the compliant.
5. Learned counsel for the respondent submits that, admittedly, the respondent/accused is an owner of the subject land; that the claim of the applicant on the basis of an unregistered sale agreement, which does not create any right or title in his favour; that the Mukhtiyarkar report also reflects that The respondent No 1 is an owner of the subject property, and he is in possession; as the agreement does not exist and ceased to have any legal effect; therefore the respondent had taken the possession back from the applicant.
6. I have heard the arguments advanced by the learned counsel for the applicant, the respondents, and the learned Additional Prosecutor General. Furthermore, I have meticulously examined the material available on the record.
7. The record reflects that the applicant/complainant purchased the subject land from the respondent in November 2020 through a sale agreement dated 20-11-2020, and the possession thereof was handed over to the applicant/complainant at that time on part payment, while the remaining amount was to be paid by the applicant in instalments. It is worth noting that the execution of the agreement, part consideration amount and the possession in pursuance of the sale agreement admitted by respondent No. 1. The possession of subject land is protected by law, even in cases where full ownership has not yet been transferred. The complainant has been in possession pursuance of the sale agreement, and no clause in the agreement explicitly allows the respondent to reclaim possession forcibly in case the full payment has not been made. The respondent cannot take possession by force. Instead, legal proceedings would have been initiated.
Forceful eviction of the complainant would generally not be permissible under law without a court order. This would constitute an illegal act.
8. It is a matter of fact and the record that respondent No. 1 filed a suit for Declaration, Cancellation of agreement, Possession and Permanent Injunction being F.C Suit No. 22 of 2023, and the applicant also has a Suit for Specific Performance of a contract, which is pending adjudication in the court of senior Civil Judge 1 Mehar. As long as the suits are pending, the trial court is the proper forum for resolving disputes regarding the terms and conditions of the sale agreement. Taking possession without the court's order would violate the principle of due process, ensuring that legal disputes are settled through a fair trial, not force or unilateral action. In light of the above principles, no one is allowed to take possession by force while the suits are pending in the court, The respondent must wait for the court's decision on the matter, and any dispossession without the court's order is illegal and unlawful against the law. Reliance can be placed in the case of Muhammad Ismail Nizami and another v. Javed lqbal and another 2016 SCMR 2039.
9. Another important aspect in the instant matter, which is worth consideration, is that if individuals were allowed to take possession of property by force, it would undermine the rule of law and create chaos in society. Property rights are fundamental to social order, and allowing forceful possession would lead to the erosion of legal protections for property owners and occupiers. People would resort to self-help measures instead of seeking legal resolution through courts, resulting in violence, vigilantism, and widespread disputes. This would erode trust in the legal system, as individuals would no longer feel secure in their rights to property or the protection of those rights guaranteed by the State in the supreme law of the land Such a shift could destabilize the social and economic framework as people might hesitate to invest in property or engage in contracts, knowing that their rights could be arbitrarily violated. Overall, it would create an atmosphere of fear, instability, and injustice, harming both individual security and broader societal harmony.
10. At this stage, it is pertinent to refer to the operative portions of the judgment in the case of Shaikh Muhammad Naseem v. Mst. Farida Gull, 2016 SCMR 1931, in which the esteemed Supreme Court has elucidated two key aspects concerning the scope and intent of the Act. The operative parts of the judgment 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 he 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."
"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. 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."
11. The term "lawful occupier", as used in the Act, can be defined in light of Halsbury's Laws of England Volume 27, Paragraph 1. According to it, a "lawful occupier" implies that a lawful occupier is one who has legal rights or authority over the property. According to Black's Law Dictionary (11th Edition), a lawful occupier is someone with the legal right to occupy or possess a property. This individual or entity is in possession of the property with legal consent or authority, such as through ownership, lease, or valid contractual arrangement. It is not occupying the property in an unlawful or unauthorized manner. In the instant matter, the applicant has occupied the subject land in pursuance of the sale agreement, the execution of which has not been denied by the respondent.
12. The lawful possession is indeed protected under the Transfer of Property Act of 1882. This Act provides legal recognition and safeguards for individuals who possess property under valid ownership or agreements. Several sections of the Act above address the concept of lawful possession, 'particularly in relation to transfer, rights, and obligations. Section 53-A of the Transfer of Property Act, 1882 is reproduced as under:- 53-A, Part performance. Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty; and the transferee has, in part performance of the contract, taken possession of the property or any part thereof or the transferee, being already in possession continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract.
Then notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by me terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof".
13. The section described above provides a shield to the transferee in possession under an unregistered agreement to transfer property, protecting them from dispossession by the transferor as long as they fulfil their contractual obligations. The principle underlying the protection of lawful possession is to ensure that individuals in rightful occupation of property are not unjustly evicted or deprived of their rights without following due legal process.
14. Turning to the impugned order, the learned trial court has observed that since the respondent/accused does not belong to the land' grabber and land mafia, the provision of the Act is not applicable. In this regard, the authoritative judgment rendered by the Apex Court of Pakistan in the case of Mst. Gulshan Bibi and others v. Muhammad Sadiq and others (PLD 2016 Sc 769), it has been unequivocally established that the provisions of the Illegal Dispossession Act, 2005, are applicable universally and are not confined solely to cases involving land grabbers or individuals with mala fide intent. The court clarified that the scope of the Act mentioned above extends to protecting the rights of lawful owners and occupiers against illegal dispossession by any individual, irrespective of their status or intent. Consequently, any undue emphasis placed by the learned trial court on the restraint of the Act to "land grabbers" or "land mafias" constitutes an erroneous interpretation of the law, as such a restrictive construction is neither warranted by the statutory language nor supported by the principles laid down by the apex court of Pakistan. Therefore, the broader protective scope of the Act must be upheld to ensure justice and safeguard the rights of lawful owners and occupiers.
15. Reverting to another observation of the learned trial court suggesting that the applicant should seek remedy exclusively before a civil court due to a civil dispute. This does not preclude the applicant from pursuing concurrent criminal proceedings. The Supreme Court, in multiple judgments, has deliberated on the coexistence of criminal and civil proceedings arising from the same set of transactions, particularly those involving provisions of the criminal law and contractual civil liabilities. The Supreme Court of Pakistan has consistently treated these proceedings as distinct and separate in nature, emphasizing that both can proceed concurrently. This distinction arises from the differing standards of proof and objectives governing criminal and civil matters, where criminal conviction pertains to criminal law consequences, while civil liability addresses compensatory or contractual obligations. In the case of Seema Fareed and others (2008 SCMR 839), the court observed as follows: -"
4. Interpretation placed by Honourable, Judge of the High Court on the provisions of the contract as well as the repealing statute does not suffer from any misconception of law or violation of the settled principles laid down by this court. It is well-settled that, a criminal case must be allowed to proceed on its own merits and merely because civil proceedings relating to same transaction have been instituted it has never been considered to be a legal bar to the maintainability of criminal proceedings which can proceed concurrently because conviction for a criminal offence is altogether a different matter from the civil liability. While the spirit and purpose of criminal proceedings is to punish the offender for the commission of a crime the purpose behind the civil proceedings is to enforce civil rights arising out of contracts and in law both the proceedings can co-exist and proceed with simultaneously without any legal restriction."
Further reliance can be placed on case titled "Haji Sardar Khalid Saleem v. Muhammad Ashraf and others" (2006 SCMR 1192) and "Muhammad Aslam v. The State and others" (2017 SCMR 390).
16. Before parting with this judgment, it is clarified that the observations made herein are strictly confined to the adjudication of the present criminal proceedings under the Illegal Dispossession Act, 2005, and shall have no bearing on the civil proceedings currently pending before the competent civil court. The determination of civil rights, ownership, contractual obligations, or any other related matters under the pending civil suit remains within the exclusive domain of the civil court, and the findings or directions in this judgment shall not prejudice or influence the outcome of those proceedings. The civil court shall independently adjudicate upon the issues before it based on the evidence and arguments presented in accordance with the applicable law, free from any inference drawn from this judgment.
17. In view of the foregoing, the impugned order of the learned trial court is hereby set aside.
Cognizance of the matter is deemed to have been taken under the provisions of the Illegal Dispossession Act of 2005. The learned trial court is directed to proceed further with the matter expeditiously and preferably decide the same within a period of six months from the date of this order; in accordance with the law, such compliance report shall be submitted through the Additional Registrar of this Court upon conclusion of the proceedings.
18. The instant Criminal Revision application is disposed of in the above terms.