Malik MUHAMMAD NAEEM AWAN Versus Malik ALEEM MAJEED

ORDER

MUHAMMAD AKRAM QURESHI, J .---Malik Muhammad Naeem Awan, petitioner has assailed the order dated 13-11-2007 passed by learned ASJ, Lahore, dismissing complaint under section 3 of the Illegal Dispossession Act, 2005 read with sections 5 and 7 of the same Act.

2. Brief facts of the present case are that father of the petitioner Malik Muhammad Shafi was owner of 155 Kanals of land located in Rakh Jhabeel, Tehsil Cantt., District Lahore, which was gifted by him to his four sons namely Muhammad Naeem Awan (petitioner), Muhammad Naseer, Shaukat Mehmood, Muhammad Naseem alias Naseem Akhtar and four daughters Mst. Khalida Parveen, Mst. Tahir Naheed, Mrs. Shakira Naheed and Mrs. Fakhira Naheed through registered deed dated 11-2-1997. However, two of the daughters Mst. Amjad Majeed and Mrs. Shahida Aslam, were deprived of their shares. They were not gifted any land through the said deed.

Two of the brothers Muhammad Naseer and Muhammad Naseem appointed and constituted Mrs. Amjad Majeed and husband of Mst. Shahida Aslam, as their general attorney with regard to land measuring 7 Kanals 16 Marlas, from their share of gift.

Mrs. Amjad Majeed, mother of Malik Aleem Majeed, filed a suit on 21-4-2007 for invalidation of the gift deed before a learned Civil Court at Lahore, but subsequently, withdrew the same on 24-7-2007. Thereafter, she filed another suit through her son Aleem Majeed for administration, partition, and declaration through specific performance with consequential' relief relating to the property left by Malik Muhammad Shafi, her father, at the time of his death.

On 21-7-2007, the petitioner filed a complaint before the learned Sessions Judge, Lahore under section 3 of the Illegal Dispossession Act, 2005 read with sections 5 and 7 of the same Act alleging that on 1-8-2007 at about 5 p.m. Aleem Majeed, respondent No.1 Hamid Majeed respondent No.2 armed with deadly weapons along with 12 unknown persons, forcibly destroyed the standing crops, in the fields of the complainant and committed theft of six shesham trees grown in the fields of the complainant. They also destroyed the watercourse (Khaal) and filled it up and illegally occupied the land of the complainant. It was further alleged that the accused mentioned in the complaint have committed the offences quoted in the complaint.

3. After filing the complaint, summary evidence of the complaint was recorded and report of S.H.O, Police Station Manawan Lahore was requisitioned, so as to reach the Court with his opinion whether respondents Nos. 1 to 4 belong to Qabza group and have been previously involved in such events to grab the property of others.

S.H.O., submitted his report in favour of the said respondents.

After hearing the compliant, learned Judge opted to dismiss the compliant while observing as under:--

"After promulgation of the Illegal Dispossession Act, 2005, Honourable Lahore High Court Lahore, provided guidance in .case titled Zahoor Ahmed and 5 others v. The State, reported in PLD 2007 Lahore 231, to the court of Sessions in the Province of Punjab. According to which, the compliant under the Illegal Dispossession Act 2005, cannot be entertained where the matter of possession of relevant property is being regulated by civil or revenue courts. This is an admitted fact that litigation regarding land in dispute is pending in the civil Court. moreover, there is nothing on record to reveal whether the respondents belong to Qabza group and have been previously involved in such-like activities to grab the property of other. Hence, in this situation, keeping in view the principle laid down in case-law cited supra, the instant compliant is not maintainable and there is no ground to summon the respondents and to proceed against them under Illegal Dispossession Act 2005, hence the instant complaint is hereby dismissed."

Hence the present writ petition.

4. Learned counsel for the petitioner submits that from the perusal of the evidence of the petitioner, and the other material, it is proved on record that the respondents Nos.1 to 4 while armed with fire-arms resorted to indiscriminate firing and thereby forcibly took possession of the portion of land fallen to the shares of the petitioners and occupied by them and that while committing theft of the property of the petitioner, he also made them liable to punishment provided for the offence under section 3 of the Illegal Dispossession Act, 2005, and that the respondents Nos.1 to 4 be summoned. He quoted the precedent of the apex Court in case reported as Rahim Tahir v. Ahmed Jan and 2 others (PLD 2007 SC 423) and states that the judgment reported as Zahoor Ahmed and 5 others v. The State and 3 others (PLD 2007 Lahore 231) is no more in the field and that it has been overruled by the judgment of the apex Court supra. He also mentioned that the Courts are supposed to observe as to whether the case in hand relates to unauthorized occupancy and whether it is supported by the judgment of the apex Court referred to above. He submits that sufficient material was available in the shape of evidence and that learned Judge, committed an error by dismissing the complaint despite the quoting the above mentioned judgment of the apex Court.

5. Conversely, the learned counsel for respondents Nos.1 to 4 vehemently opposed this writ petition contending that civil litigation was pending between the parties and on the score of the same allegations, the complainant has approached the learned A.S.J., Lahore to redress the civil grievance to the criminal one. He also states that the complaint consists of false and fabricated allegations and that the S.H.O, has endorsed the falsehood of the complaint and that as a matter of fact, no offence stood established from the available material and that the complaint was filed to force the said respondents to withdraw themselves from pursuing the civil suit. He also states that it is well-established principle of law that in the presence of civil proceedings, criminal Courts cannot step forward and the criminal proceedings about the same points in issue merits dismissal. He prays for the dismissal of the writ petition.

6. I have heard the lengthy arguments of both the learned counsel for the parties and perused the record with their able assistance.

7. In the case reports Rehmatullah v. Abdul Aziz and another (4974 P.Cr.LJ 541) it has been observed by the High Court that continuation of civil suit is no bar to criminal proceedings even though both cases relate to the same subject-matter. In another case, reported as Sh. Ahmad v. Sh. Muhammad Yunus (1971 P.Cr.LJ 331), it was held:--

"Having heard the learned counsel for the parties, I am clearly of the view that no case is made out for quashing of criminal proceedings simply on the ground that civil litigation is also pending between the parties. However, it would be pertinent to consider the question of the stay of these proceedings till the disposal of the civil cases pending between the parties. In support of this learned counsel has drawn my attention to Muhammad Akbar v. The State and another (PLD 1968 SC 281) and N. Manak Ji v. Fakhar Iqbal and another (1969 SCMR 198) wherein their lordships have held that in cases which are intimately connected with a view to avoid a possibility of conflicting decisions, .it would be appropriate to stay criminal proceedings till the decision of the civil matter."

In another case reported as Muhammad Shafi v. Deputy Superintendent of Police (Malik Gul Nawaz) Narowal and 5'others (PLD 1992 Lahore 178) a learned Full Bench of this Court held that the pendency of a civil suit is no bar for the initiation of criminal proceedings and that both the cases may continue side by side.

8. While guided from the above dictums I have no hesitation to agree with learned counsel for the petitioner that in the presence of civil suit, filed by above mentioned respondents, the present complaint can continue side by side and that no bar existed to decide it even prior to the decision of the civil suit.

While interpreting the Illegal Dispossession Act 2005, a Full Bench of this Court reported as PLD 2007 Lahore 231 held as under:--

"The Illegal Dispossession Act, 2005 applies to dispossession from immovable property only by property grabbers/Qabza group/land mafia. A compliant under the Illegal Dispossession Act, 2005, can be entertained by a Court of Session only if some material exists showing involvement of the persons complained against in some previous activity connected with illegal dispossession from immovable property or the compliant demonstrates and organized or calculated effort by some persons operating individually or in groups to grab by force or deceit property to which they have no lawful, ostensible, or justifiable claim. In the case of an individual, it must be the manner of execution of his designs which may exposed him as property grabber.

(ii) The Illegal Dispossession Act, 2005 does not apply to run of the mill cases of alleged dispossession from immovable properties by ordinary persons having no credentials or antecedents of being property grabbers/Qabza groups/land mafia i.e. cases of disputes over possession of immovable properties between co-owners or co-shares between landlords and tenants, between persons claiming possession on the basis of inheritance, between persons vying for possession on the basis of competing title documents, contractual agreement or Revenue Record or cases with a background of an ongoing private dispute over the relevant property."

This judgment was pronounced by a Full Bench of this Court on 19-1-2007.

In case of Rahim Tahir v. Ahmed Jan and 2 others, reported as PLD 2007 SC 423, it was held by the apex Court as under:

(b) Illegal Dispossession Act (IX 2005)---Section 3---Prevention of illegal possession of property, etc.---Expression "Grab", "control or occupy" used in section 3 of 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 except the cases which were pending adjudication before other forum."

It was also observed by the apex Court in the same judgment:--

---Mere filing of the suit subsequent to the filing of compliant on the basis of a document having no legal foundation, was of no consequences and significant to protect the illegal and unauthorized possession."

9. In the above circumstances, it is clear that Illegal Dispossession Act was not only applicable to the land grabbers, Qabza groups or the persons habitually indulged in such activities but to all the persons illegally occupying or possession any premises. While holding so, I am inspired by the supra judgments of the apex Court.

10. The contents of the compliant, summary of evidence, and the documents filed by the complainant, sufficient reasons existed to proceed with the trial of the present case. The complainant has specifically levelled allegations of forcible dispossession of his land from the hands of the respondents and thus brought such evidence on record which if not rebutted would have been sufficient to convict the said respondents Nos.1 to 4. In case of Zeeba Bakhtiar v. Adnan Sami reported as (1998 SCMR 922), the apex Court held that:--

"Although there can be no cavil with the view taken by the Calcutta High Court and the Court upon the material placed before it .by the complainant in support of the allegations may issue process to the accused named in the complaint if a case is made out against him on first impression nevertheless, the Court would be duty bound to exercise such discretion with great care and caution. Unless evidence produced before the Court is such that, if un-rebutted, conviction may be based thereon, the Court would be justified to decline issue of process to the person complained against."

11. The contentions raised by leaned counsel for respondents Nos.1 to 4 are not well-founded and thus cannot be exceeded to.

12. In the above circumstances, this writ petition is accepted, the impugned order dated 13-11-2007 is set aside, being illegal.

13. The instant case is remanded to the learned trial Court, who shall hear the arguments of the parties and pass appropriate orders while proceeding further in the case keeping in view the above mentioned dictums of the apex Court and the observation of this Court.

M.H./M-80/L Case remanded.