MUHAMMAD BAKHSH vs ADDITIONAL SESSIONS JUDGE and others

ORDER

' SARDAR TARIQ MASOOD, J.--- Petitioners filed this criminal revision for setting aside the order, dated 14-5-2009 passed by learned Additional Sessions Judge, by which the petition under section 265-K, Cr.P.C. Filed by the petitioners was dismissed.

2. Ghulam Sarwar and Muhammad Akram respondents Nos.2 and 3 filed a complaint under section 3 of the Illegal Dispossession Act, 2005 against Muhammad Bakhsh petitioner and others. The petitioner filed Criminal Miscellaneous No,1084/Q of 2006 for the quashment of orders of learned Additional Sessions Judge as the complaint was not referred to the police for investigation as required under section 5 of the Act but on 30-10-2006 my learned brother Muhammad Khalid Alvi, J. Dismissed the said petition as it was not mandatory provision to refer the case to the police for investigation. Consequently, the petitioner's application under section 265-K, Cr.P.C. Was moved before the learned Additional Sessions Judge for their acquittal in the complaint filed by respondents Nos.2 and 3 and vide order, dated 14-5-2009, learned Additional Sessions Judge dismissed the said application.

3. Learned counsel for the petitioner contends that the petitioner and his co-accused in the complaint did not belong to the property grabbers, Qabza group or land Mafia and there is no previous record against them. Further contends that the complaint under section 3 of the Illegal Dispossession Act, 2005 cannot be entertained when the matter of possession of relevant property is being regulated by Civil Court as the petitioner has filed a suit for specific performance of contract which is pending adjudication in the Civil Court and the Civil Court had accepted the application for temporary injunction in favour of the petitioner and the respondents have not objected the same. He relies on the case of Zahoor. Ahmad and 5 others v. The State and 3 others PLD 2007 Lah.231.

4. Learned counsel for the respondents opposed the contention of the learned coune,61 for the petitioner while relying upon the cases of Rahim Tahir v. Ahmad' Jan and 2 others PLD 2007 SC 423, Wali Muhammad;. . Additional Sessions Judge and 5 others PLD 2008 Lah.

392 and Malik Muhammad Naeem Awan v. Malik Aleem Majeed and 5 others PLD 2008 Lah.

358.

5. Heard. Record perused.

6. Provisions of Illegal Dispossession Act, 2005 were not only applicable to the land grabbers, Qabza groups and other persons habitually indulging in such activities but to all persons illegally occupying or in possession of premises. If from summary of evidence and documents filed by the complainant and from the contents of the complaint, sufficient reasons existed to proceed with the trial of the case and trial Court can strictly act under the provisions of Illegal Dispossession Act, 2005.

' In the case of Rahim Tahir v. Ahmed Jan and 2 others PLD 2007 SC 423, it was held that:- "Expression "Grab, control or occupy" used in section 3 of the Illegal Dispossession Act, 2005, cannot be restricted to the illegal occupants who entered in the premises subsequent to the promulgation of the Act, rather all cases of illegal and unauthorized occupants would be subject to the Illegal Dispossession Act, 2005."

' From the guidance of this judgment; it is crystal clear that all cases of illegal occupants without any distinction would be covered by the Illegal Dispossession Act, 2005 and the object of the Act was to protect the property of the lawful occupants from the illegal and unauthorized occupants across the board. Even if a relative takes possession of a property through illegal and unauthorized means from a lawful owner, the provisions of Illegal Dispossession Act, 2005 would be attracted.

Provisions of Illegal Dispossession Act, 2005 were not only applicable to land grabbers, Qabza groups or other persons habitually indulging in such activities but to all persons illegally occupying or in possession of any person.

' So far pendency of civil suit is concerned, it is argued that criminal proceedings cannot proceed when civil suit is pending.

' In the case reported-as Rehmatullah v. Abdul Aziz and another 1974 PCr.LJ 541, it has been observed by the High Court that "continuation of civil suit is no bar to criminal proceeding even though both cases relate to the same subject-matter".

' In the case reported as Sh. Ahmed v. Sh. Muhammad Yunus 1971 PCr.LJ 331, it was held that "no case.Is made out for ousting of criminal proceeding simply on the ground that civil litigation is also pending between the parties".

' In the case reported as Malik Muhammad Naeem Awan v. Malik Aleem Majeed and 5 others PLD 2008 Lah. 358, it was observed that:--- "In presence of civil suit, complaint under section 3 of Illegal Dispossession Act, 2005 can continue side by side. No bar exists to decide the complaint even prior to the decision of civil suit."

' In the recent judgment of the Honourable Supreme Court reported as Seema Fareed and others v.

The State and another 2008 SCMR 839 it is held that:--- "It is well-settled that a criminal case must be allowed to proceed on its own merits. Merely because civil proceedings relating to the same transaction have been instituted has never been considered to be a legal bar to continuance of criminal proceedings which can proceed concurrently because conviction for a criminal offence is altogether a different matter from civil liability. While the spirit and purpose of criminal proceedings is to punish the offender for commission of a crime, the purpose behind the civil proceedings is to enforce rights arising out of contracts. In law both proceedings can co-exist and proceed simultaneously without any legal restriction."

' In the case of Rafique Bibi v. Muhammad Sharif and others 2006 SCMR 512, it is observed that "there is no bar existed to initiate both the proceedings i.e. Civil and criminal simultaneously".

From the guidance of this judgment, it is crystal clear that both the proceedings of civil and criminal can be initiated side by side and Courts cannot stifle one proceeding for the other.

' The complainant/respondents in this case had specifically levelled allegations of forcible dispossession of his land from the hand of the petitioner and his co-accused and brought evidence on the record and then learned Additional Sessions Judge summon the petitioner and his co-accused in the said complaint to face the trial.

' Learned counsel for the petitioner had argued regarding the alleged exchange of land, so the validity of the said exchange is yet to be determined during the trial of the said complaint and the petitioner and his co-accused during the trial can produce copy of civil suit and exchange deed and can bring their version on the record and it will be premature for the learned trial Court to determine the entire claim of the accused.

' I have gone through the impugned order of the learned Additional Sessions Judge, dated 14-5- 2009 and found no illegality or perversity in the said order.

7. Consequently, this criminal revision is dismissed.