NISAR AHMED Versus State

ORDER

1. KHAWAJA NAVEED AHMED, J .--- This revision application has been directed against the order, dated 30-5-2008, passed by the learned V-Additional Sessions Judge, Karachi East, whereby a complaint under section 203, Cr.P.C., by a detailed order has been dismissed on the basis of inquiry report of S.H.O. Korangi, who had submitted report after recording of evidence of both the parties. The relevant portion is reproduced hereunder:

2. "He has stated in his detail report that the shop in question is a small size shop situated at Plot No.1, Street No.13, "C" Area, Qayyumabad and except the medicines there is no possibility of existence of Pathology Laboratory and other equipment in the said small size shop as alleged by the complaint. He has further stated that during inquiry it is found that complainant gradually has taken away his medicines and presently the shop in question was under the control of landlord and no illegality whatsoever has been committed by the owner. The instant criminal complaint is false and fabricated and does not hit under Illegal Dispossession Act. It is further stated that dispute was placed before the Area Nazim and Masalihiti Committee and the complainant and his father were granted 7 months to vacate the shop in question, the landlord has also given Rs.60,000 as past rent to the complainant party. Instead of vacating the shop the complainant party started multiple litigations against the landlord and the instant complaint is also the result of the illegal act of the complainant party."

3. The learned Advocate appearing for the applicant has stated that area police was biased against the applicant. They in fact wanted to take the possession of the shop without due process of law. At the first instance, complainant had lodged a false F.I.R. against the applicant and his father in which both the father and son are on bail. Thereafter, it was alleged that a dacoity was committed on the shop of the applicant wherein the father and son were locked in the shop after the dacoits had looted the shop. The applicants were released from the bolted shop after the police opened door from outside. When the landlord did not succeed in getting the possession of the shop through coercive methods he had resorted to Area Nazim. The Area Nazim by assuming the role of Rent Controller forced the applicant and his father to vacate the shop within 7 months. During this period instead of complying with the orders of the Area Nazim, the applicant had resorted to litigation and filed a civil suit in the Court and had obtained a status quo order. Learned counsel had argued that in spite of pendency of civil litigation and continuation of status quo order, the landlord had forcibly taken over the possession of the shop and all articles lying in the shop have been taken away by the landlord. Learned Advocate has further argued that it is fit case, where this Court can interfere. Learned Advocate in support of his argument has relied upon Noor Muhammad v The State PLD 2007 SC page 9 in this authority Honourable Supreme Court has observed that:--

4. "If a complaint is made before the Court, it is only to see existence of a prima facie case either on the basis of averments made in the complaint and the statement's of complainant on oath or on the basis of inquiry if the Court thinks fit to hold inquiry in order to ascertain truth or falsehood of the complaint."

5. It is further observed in the same authority that:---

6. "Court is not expected to examine material minutely at the stage of issuance of process, whereas at the stage of trial, Court appraises evidence thoroughly and records its findings on the basis of such appraisal and any benefit of doubt arising out of such inquiry should be given to accused. Preliminary inquiry is not the stage where a material available on record is assessed in depth but a prima facie case has to be made out to proceed further with the matter for issuance of process."

7. He has relied upon an old authority reported in Sunder Das v. The State and others 1975 PCr.LJ page 511, by his Lordship Mr. Justice Abdul Hayee Kureshi, (as he then was). This authority has been placed in reply to the query made by this Court as to why the accused have not been made respondents in this case. His Lordship while dealing with this question has observed:---

8. "It would be clear from the proviso that notice is mandatory only when an order of discharge is sought to be set aside but it has no application in cases where the revision application arises out of an order of dismissal of complaint. No mandatory notice is contemplated in case of revisions against an order of dismissal of complaint."

9. Regarding the applicability of Illegal Dispossession Act in this matter, learned counsel has relied upon following authorities:---

(1) Jalal and 11 others v. Kapri Khan and another PLD 2008 Kar. page 369, (2) Malik Muhammad Naeem Awan v. Malik Aleem Majeed and 5 others PLD 2008 Lah. page 358, (3) Iftikhar Ahmad v. Zulfiqar Ali and 3 others PLD 2008 Lah. page 59, (4) Muhammad Rafique v. Major Abdul Waheed Rind 2008 PCr.LJ page 1309, (5) Muhammad Ramzan alias Jani v. Muhammad Aslam and others 2007 PCr.LJ page 1784, (6) Rahim Tahir v. Ahmed Jan and 2 others PLD 2007 SC page 423, (7) Muhammad Arif v. Additional Sessions Judge and 6 others 2007 PCr.LJ 918 (8) Haji Sardar Khalid Saleem v. Muhammad Ashraf and others 2006 SCMR page 1192.

10. Ms. Fatima Jarnila Jatoi, learned State Counsel has supported the order of the learned Additional Sessions Judge. She states that revision application is not maintainable as the applicant is not an owner of the property.

11. I have heard both the counsel and perused the record as well as the authorities placed by the learned counsel mentioned above. Admittedly, it is a dispute between the landlord and tenant, in which the landlord wants the possession of the demised premises expeditiously by whatever methods. At first instance, as the record shows the landlord has resorted to lodging false F.I.R. against an old man who had gone to perform Hajj and his son under section 337-J, etc., in which the applicant, his father and brother were implicated and now they are on bail from the Court. When this F.I.R. did not work, a dacoity was committed at the shop of the applicant wherein the dacoits after looting the shop had locked the father and son inside the shop. This also did not work, thereafter the landlord went before the Area Nazim for ejectment of tenant from the demised premises and had managed to obtain an order from the Area Nazim that tenant will vacate the shop within 7 months and arrears will be forgiven. This also did not work as the tenant after order of Nazim went to Civil Court and had obtained a status quo order. Notice of status quo order by the Civil Court in the matter was issued to the landlord, but instead of complying with the order he resorted to take the possession of the shop by force and he succeeded in it.

12. In this background of the matter the applicant had preferred a private complaint under section 3 of the Illegal Dispossession Act, 2005 learned Additional Sessions Judge at the first instance without looking into the facts of this petition, on inquiry report of S.H.O. who was helping the landlord since long for getting the possession of the shop dismissed the complaint.

13. I have observed during hearing of this case and has taken serious view that Area Nazim assumed the role of Rent Controller. I have noticed in many cases that initially people, who have influence with the Area Nazim use threats, force, pressure on tenants for forcing them into compromise and Area Nazim hold "JIRGA" proceedings and takes commitments from the tenant for vacating the shop/houses/flats and recovery of money. This role on the part of the Area Nazim nullifies the purpose of Sindh Rented Premises Ordinance, 1979 and the role of the Rent Controller who has been empowered by law to look into such disputes. Even in family cases I have observed that on many occasions the Area Nazim have forced husbands to divorce their wives or in child custody matter and all matrimonial disputes the Area Nazim assume the role of Family Judge/Guardian and Ward Judge.

14. As far as reconciliation proceedings are concerned, the Area Nazims are competent and justify in holding reconciliation between the parties and for issuance of such certificates but as far as trial of the case is concerned they are not competent to hold trial, record evidence, pass judgments and force its execution by using influence of their offices. The present case in my opinion is an example, wherein the Area Nazim had assumed the role of the Rent Controller and forced the party to vacate and finally got its execution through illegal methods. Police is also supporting the judgment of the Area Nazim in the reports.

15. In the circumstances mentioned above, I set aside the order, dated 30-5-2008, passed by the learned V-Additional Sessions Judge, Karachi East, against which the instant revision application has been filed and remand the case back to District and Sessions Judge, Karachi East, with direction to transfer the case to some other Additional Sessions judge or try the same by himself.

16. The above observations made by me are tentative in nature and the Sessions Judge or the Court to whom the case may be transferred shall decide the same on its merits without being influenced by the above observations made by me. The Criminal Revision Application bearing No.76 of 2008 is disposed of, accordingly.

17. AMR/N-37/K Petition allowed.