ABDUL HAFEEZ vs ADDITIONAL DISTRICT JUDGE-VII, SOUTH KARACHI and 2

ORDER

1. ' GULZAR AHMED, J.---Petitioner claims to be owner of Shop. No, M.R. 5, property No,32, measuring 23 square yards, Juria Bazar, Karachi, stated to have been purchased by him from Mrs. Haleema Bai, on 1-6-2000. Petitioner alleges that he was in possession of the shop in question but was dispossessed from it by the respondent No.2, on 22-9-2007 and Since then the respondent. No.2 is in illegal possession of 'the shop. Petitioner has filed a Criminal Miscellaneous Application under sections 3/4 of the Illegal Dispossession Act, 2005 in the Court of District and Sessions Judge South Karachi, registered as Criminal Miscellaneous No,906/2007. Such application of the petitioner came to be heard and dismissed by the learned VII Additional Sessions Judge Karachi South, vide his order, dated 31-3-2008 impugned in this petition. On examination of the impugned order what we find is that the learned VII Additional Sessions Judge, Karachi-South has dismissed the said application of the petitioner on the ground that the petitioner has lodged an F.I.R. No,232 of 2006 in respect of his illegal dispossession and the application filed before him for similar relief will amount to a double jeopardy which is not permissible in law and thus dismissed it.

2. ' We are very disturbed with such cursory disposal of the matter by the learned VII Additional Sessions Judge, Karachi-South, more so when we find that the learned Judge has not even examined the law under which he was required to consider and decide the matter. Section 3 of the Illegal dispossession Act, 2005 is as follows:-- "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 owners or occupiers of such property.

(2) Whoever contravenes the provision of the subjection (1) shall, without prejudice to any punishment to which he may be liable under any other law for the time being in force, be punishable with imprisonment which may extend to ten years and with fine and the victim of the offence shall also be compensated in accordance with the provision of section 544-A of the Code."

3. It may be noted that the Illegal Dispossession Act, 2005 is a special law providing remedy to aggrieved person who has been illegally dispossessed from the property and provides for a new punishment for offence committed under the Act. The punishment that is provided in subsection

(2) of section 3 of the Act appears to be in addition to the one that a person may entail under any other law. There seem to be no bar on the aggrieved person from availing remedy against the offender under any other law as well as under the Act. Subsection (2) of section 3 of the Act is very clear in this respect. Apparently the lodging of F.I.R. By the petitioner under general law will not act as a bar to avail remedy under the Act nor the availing of remedy under the Act will act as bar from initiating proceeding under any other law for the time being in force. The concept of double jeopardy is attracted where the accused has been tried for the offence charged in the competent Court and there is judgment or order of conviction or acquittal. Merely lodging of F.I.R. And filing of complaint under the Act will not attract the rule of double jeopardy. The learned VII Additional Sessions Judge, Karachi-South has seriously erred in reaching the conclusion as he has done in this case.

4. ' The respondents were issued notice of this petition. The notice was again issued to the respondent No,2 of the today's date of hearing by Bailiff, the Registered Post A/D as well as by Courier Service.

5. Bailiff report shows that notice was served on the respondent No,2 but he is not in attendance. The receipts of notice having been sent by Registered Post A/D as well as Courier Service, have also been filed with confirmation of the Courier Service that respondent No,2 has received the notice.

6. Consequently, we admit this petition to regular hearing and allow the same and set aside the impugned order, dated 31-3-2008 and remand the matter to the learned VII Additional Sessions Judge, Karachi-South for deciding the matter afresh on its merits in accordance with law.