Mst. MARIAM BAI and 2 others vs MUHAMMAD ASHRAF and 12 others

ORDER

1. ' DR. RANA MUHAMMAD SHAMIM, J.---Through this Criminal Revision, the applicants have assailed the order dated 21-8-2006 passed by learned V- Additional Sessions Judge Karachi Central whereby the application under sections 3 and 4 of Illegal Dispossession Act, 2005 filed by them was dismissed.

2. ' Brief facts are that the applicants are the lawful owners of Flat No,6 constructed on Second Floor at Plot No,847, Block No,3, F.B. Area, Hussainabad, Karachi and on 6-7-2006 at 6-15 p.m. The possession of the same was handed over to them through the process of law in Execution Application No,65 of 2005 from the tenant i,e, respondent No,1, who was living there with his sons respondents Nos. 2 to 5. However, on the same day at 7-00 p.m. The respondents broke open the lock and put one couple in the flat in question. The applicants have also alleged that in this process the respondents also entered in his flat which is on third floor of the same building and maltreated applicants Nos. 2 and 3 and so also damages his flat and took away valuable articles including the gold etc. In this background applicant filed application under sections 3 and 4 of Illegal A Dispossession Act, 2005 praying for restoration of the possession, which application was dismissed vide impugned order.

3. ' On service of notice all the respondents appeared and have contested the revision application and so also proposed respondent Muhammad Yaqoob.

4. ' Contention of Mr. Anwar Hussain, learned counsel for the applicant, is that the applicant came in possession of the flat in question after he succeeded in rent case filed against the respondent No,1.

5. Subsequently one Muhammad Yaqoob has been put into possession after break opening the locks of the facts in collusion with respondent No,1 and other respondents and the learned trial Court has not taken into consideration these flats; that the learned trial Court has solely relied upon the report submitted by the police, which is against the principle laid down by the Superior Courts; that the learned trial Court has neither examined the applicant nor the respondent Muhammad Yaqoob, who was a trespasser and is in possession of the property in question; that learned trial Court has erred in law by not allowing the application for joining Muhammad Yaqoob as party to the proceedings; that being a criminal complaint it was the duty of the learned trial Court to cause presence of Muhammad Yaqoob in the proceedings being involved in a criminal act; that the learned trial Court has failed to consider what has been alleged in the complaint and has only relied upon the police report. In support of his contentions he has placed reliance on the cases of Rahim Tahir v. Ahmed Jan (PLD 2002 SC 423) and Safdar Ali v. Zafar Iqbal (2002 SCM R 63).

6. ' Mr. Asadullah Baloch, learned counsel appearing for the State, has supported the arguments of learned counsel for the applicant. He contended that the learned trial Court has failed to examine the main accused which was alleged to be in illegal occupation of the flat in question and has solely relied on the police report.

7. ' Mr. Raja Shamsuz Zaman and M. Jeewani, appearing for the respondents and Raja Ali Asghar appearing for proposed respondent Muhammad Yaqoob, have supported the impugned judgment. They contended that there is no irregularity or illegality in the impugned order therefore the same does not call for any interference; that since the applicants have filed the suit pertaining to the flat in question, therefore, the dispute should be left to be decided by the civil Court; that since the proposed respondent Muhammad Yaqoob, who is in possession of the flat in question was not a party to the proceedings before the learned trial Court, hence the application was rightly dismissed by impugned order.

8. ' I have heard the learned counsel and with their assistance perused the material available on record.

9. From a careful reading of the impugned order it appears that the learned, trial Court has not allowed the request of the applicants to make Muhammad Yaqoob a party/accused to the proceedings who illegally occupied the property in question hence his evidence/cross- examination was not recorded. Consequently, the only material available with the learned trial Court was police report and on the basis of which the impugned order was passed. In my humble opinion in a criminal proceeding there is no bar that at first instance the evidence of the complainant and illegal occupant/accused should be recorded to ascertain as to whether the prima facie case is made out as prayed. It is also well entrenched legal principle that when a Court takes cognizance of complaint he takes cognizance of the offence and not merely of a particular person charged in the report as an offender thus he can issue process against other persons who also appear to be concerned/involved in the commission of the offence hence the learned trial Court ought to have summoned the proposed respondent Muhammad Yaqoob who illegally and forcibly occupied the property in question to ascertain the, correct position. Reliance is placed on the case of Safdar Ali (Supra). As regards the contention of learned counsel for the respondents and proposed respondent that since the suit is pending hence the application has rightly been dismissed, I am fortified by the Hon'ble Supreme Courts in the Case of Rahim Tahir (Supra) wherein it has been held that mere filing of the suit subsequent to the filing of complaint on the basis of a document which has no legal foundation, would be of no significance to protect the illegal and unauthorized possession.

10. In view of the above since the learned trial Court has only relied on the police report and did not examine' Muhammad Yaqoob, alleged to have illegally occupied the flat in question, the learned trial Court has arrived at the conclusion without having all material with him. Accordingly, this Criminal Revision Application is allowed and the impugned order dated 21-8-2006 passed by learned V-Additional Sessions Judge Karachi Central is set aside and the case is remanded to the learned trial Court to decide the application of the applicant afresh after summoning Muhammad Yaqoob, alleged to be in illegal possession of the flat in question, and recording his statement.

11. ' Above are the reasons of my short order dated 20-11-2007.