FARRUKH ZAHEER Versus CIVIL AVIATION AUTHORITY'S DIRECTOR GENERAL
1. MUHAMMAD SALEEM JESSAR, J.--- By means of instant Criminal Revision Applications, applicant Farrah Zaheer has assailed order dated 07.06.2018 passed by learned IVth Additional Sessions Judge, Malir. Karachi whereby he dismissed the complaint filed by the applicant under sections 3, 4 and 5 of the Illegal Dispossession Act, 2005.
2. Concisely, the relevant facts giving rise to the filing of instant Criminal Revision Application are that the complainant filed complaint under sections 3, 4 and 5 of the Illegal Dispossession Act, 2005 stating therein that he had entered into an agreement with respondent No.1, Civil Aviation Authority on 16.11.2011 for assignment of various contracts which was duly extended time to time but on 30.09.2015 official of respondent No.1 had sent letter to Additional Director M&D(S), JIAP, Karachi with proposal to cancel the Central Rate Running Contract of the complainant etc. Subsequently, said official cancelled the Central as well as Local Contract Agreements, vide letter dated 14.10.2015 and complainant had sustained heavy monitory losses as he had spent millions of rupees towards purchase of most advanced, modern articles, equipment and heavy machineries etc. He further narrated in the memo of complaint that on 12.10.2017 a pre-planned theft had been committed by the officials of respondents Nos. 1 and 2 who had stolen all valuable articles worth of Rs.25.00.000 - and after such mega theft. he had approached before the Court of law under section 22-A, Cr.P.C. for registration of FIR and obtained orders on 06.12.2017 against the respondents Nos.1 and 2. He further stated that respondent No.2 being incharge of the Godown/ warehouse situated in their premises made telephone call to him and said that respondent No.2 had broken the lock and key of the warehouse of complainant along with other officials of respondents Nos. 1 and 2 then removed all valuable articles lying there as per directions of the respondent No.1.
3. After hearing the counsel for the complainant and perusing the material available on record, trial Court dismissed the complaint on the ground that the complainant has failed to establish prima facie case for taking cognizance under the Illegal Dispossession Act, 2005, hence this Cr. Revision by the applicant/ complainant.
4. I have heard learned counsel for the applicant, learned counsel for the respondents/accused as well as learned A.P.G. appearing for the State and have gone through the material available on the record.
5. From the perusal of the complaint filed by the applicant it reveals that complainant entered into an agreement dated 16.11.2011 with the respondent No.1 for assignment of various contracts. A copy of the said agreement has been filed by the applicant with the memo of revision application as Annexure A/3 which is available at page 53 of the case file. It is further alleged that respondent No.1 cancelled the said contracts vide letter dated 14.10.2015 duly signed by Additional Director Works (M&D)(S). The applicant's plea is that he was allotted the premises/store in question where his valuable equipment and machineries were lying. However, without adopting legal process in the odd hours of the night of 12.10.2017 a pre-planned mega theft had been committed by the officials of respondents Nos.1 and 2 who had stolen all valuable articles worth Rs.25,00,000/- thereby complainant has sustained heavy monitory losses as he had spent millions of rupees towards purchase of most advanced, modern articles, equipment and heavy machineries etc.
6. It seems that the trial Court has dismissed the complaint on the ground that Illegal Dispossession Act, 2005 is the special enactment, which had been promulgated to discourage the land grabbers and Qabza Group and to protect the rights of owner and the lawful occupant but the instant manor pertains to a dispute of civil nature between the parties. It would be advantageous to reproduce hereunder the relevant portion from the impugned order:
7. "I am of the humble view that the Illegal Dispossession Act, 2005 is the special enactment, which had been promulgated to discourage the land grabbers and to protect the right of owner and the lawful occupant but the instant matter is pertained to civil nature between the parties and complainant has failed to establish his prima facie case for taking cognizance under the Illegal Dispossession Act, 2005 and he can avail his remedy in such a case by approaching to a Civil Court of competent jurisdiction for his redressal, hence the instant complaint is hereby dismissed accordingly."
8. It also appears that the complainant/applicant had also lodged FIR against the respondents Nos.1 and 2 after getting orders on an application moved by him under section 22-A and B Cr.P.C. in respect of mega theft which was disposed of by 1st Additional Sessions Judge Malir, Karachi, vide his order dated 06.12.2017. Thereafter, the complainant filed instant complaint.
9. It seems that the trial court has disposed of the complaint in a hasty manner because in the peculiar circumstances of the case it was incumbent upon the trial Court to have recorded evidence of the parties, in order to arrive at a just and proper conclusion with regard to the claim of the complainant of illegal dispossession from the premises in question by the respondents. Such exercise was not undertaken by the trial Court and without doing so the impugned order of dismissal of the complaint has been passed in a hasty and mechanical manner.
10. In the case reported as Walifa Jana and 2 others v. Rahim Jan and anther (2012 MLD 1652) while dealing with a similar situation, it was held by Honourable Peshawar High Court as under:
11. "For the purpose of attracting provision of section 3 of Illegal Dispossession Act, 2005, court is required to examine as to whether property was an immovable property, secondly that the person was owner or the property was in his lawful possession; thirdly that accused entered into or upon the property unlawfully; fourthly that such entries was with intention to dispossession i.e. ouster, evict or deriving out of possession against the will of person in actual possession or to grab i.e. capture, seize suddenly, take greedily or unfairly, or to control i.e. to exercise powers or influence over, regulate or govern or relate to authority over that what is not one's physical possession or to occupy i.e. holding possession, residing in or something. In order to prove all these and to reach just and proper conclusion and specially in the instant case recording of pro and contra evidence was a requirement and we feel that the learned trial court while not recording pro and contra evidence in the prevailing circumstances committed gross illegality due to which a party has suffered miscarriage of justice."
12. Likewise, in the case of Daim Ali Khan v. Mushtaque Ali alias Farooq reported in 2017 YLR 1456 this Court held as under:
13. "Ss 3 & 4-Illegal Dispossession, Complaint, dismissal of---Non-recording of evidence---After seeking reports from the Station House Officer and revenue official trial court dismissed the complaint---Validity---Question of illegal dispossession different from civil liability and trial court was bound to ascertain as to whether allegations leveled by the complainant constituted offence under Illegal Dispossession Act, 2005 or otherwise---Trial Court failed to exercise jurisdiction vested in it in appropriate manner and committed material illegality and gross irregularity while dismissing the complaint without recording evidence of the parties and affording them opportunity to produce their documents during trial."
14. The trial Court has also laid much stress on the fact that the dispute between the parties is of civil nature, therefore, the provisions of Illegal Dispossession Act, 2005 which falls under the criminal administration of justice, cannot be invoked. In this regard, suffice it to observe that pendency of civil litigation does not debar the complaint under Illegal Dispossession Act. In this connection reference can be made to a judgment of Hon'ble Supreme Court of Pakistan passed in the case of Sheikh Muhammad Naseem v. Mst. Farida Gul reported in 2016 SCMR 1931 wherein it was held under:-
15. "In the impugned judgment, it was also held that where civil litigation with regard to illegal dispossession from immovable property is pending between the parties, the proceedings under the Illegal Dispossession Act, 2005 cannot be maintained. This finding is also based on the decision of the Lahore High Court in Zahoor Ahmed's case (PLD 2007 Lahore 231), reasoning of which was adopted by three member bench of this Court in Bashir Ahmed's case (PLD 2010 SC 661). We are of the view such a finding is also not sustainable in law. Any act which entails civil liability under civil law as well as criminal penalty under criminal law, such as the Illegal Dispossession Act, 2005 then a person can be tried under both kinds of proceedings, which are independent of each other. Once the offence reported in the complaint stands proved against the accused within the confines of the provisions of the Illegal Dispossession Act, 2005 then he cannot escape punishment on the ground that some civil litigation on the same issue is pending adjudication between the parties. No one can be allowed to take law in his own hands and unlawfully dispossess an owner or lawful occupier of an immovable property and then seek to thwart the criminal proceedings initiated against him under the Illegal Dispossession Act, 2005 on the pretext that civil litigation on the issue is pending adjudication between the parties in a court of law. Therefore, irrespective of any civil litigation that may be pending in any Court, where an offence, as described in the Illegal Dispossession Act, 2005, has been committed, the proceedings under the said Act can be initiated as the same would be maintainable in law".
16. (Emphasis is supplied for the sake of convenience)
17. In the case of Muhammad Aslam v. The State and others (2017 SCMR 390) it was observed by Honourable Supreme Court that there is no universal principle that whenever a civil suit and a criminal case involved similar or identical subject matters, the proceedings before the criminal court must necessarily be stayed.
18. In the case reported as Walifa Jana and 2 others v. Rahim Jan and another (2012 MLD 1652) it was held by Honourable Peshawar High Court as under:
19. "The pendency of civil litigation also does not debar the complaint under Illegal Dispossession Act nor the court can summarily dispose of the proceedings the way, has been done."
20. In the case of Sheikh Muhammad Nafees v. Additional Sessions Judge. Hafizabad reported in 2010 PCr.LJ 1442 [Lahore] it was held as under:
21. "Respondents/accused contended that during pendency of civil suit, criminal proceedings could not be initiated about the same matter between the same parties and that the petitioner had filed complaint to pressurize them. Pendency of civil suit was no bar to initiation of criminal proceedings and both civil and criminal cases could proceed simultaneously."
22. Learned counsel for the respondents contended that the Illegal Dispossession Act, 2005 has been enacted with the object to curb the illegal and unlawful activities of land-grabbers and Qabza Mafia to forcibly and illegally dispossess the owners / legal occupiers of the immoveable property. In this connection he relied upon the case of Habibullah and others v. Abdul Manan and others reported in 2012 SCMR 1533. In the said case the dispute was between a tenant and landlord wherein it was held as under:
23. "Complainant while appearing as P.W. 1 has not stated a single word that the appellants belong to a Qabza Group and were involved in such activities, so it is the complainant side who has failed to establish that the appellants belong to Qabza Group or they were land grabbers. The complainant side has not produced any evidence oral or documentary to establish that the appellants had the credentials or antecedents of being property grabbers. So, it was dispute between two individuals over immovable property, being rightful owners, from the tenant who has taken the property on rent and committed the default in payment of rent and electricity bills inasmuch as the appellants do not belong to a class of property grabbers or Qabza Group and no case was made out under section 3 of the Illegal Dispossession Act In view of the case-law referred above, it is established that the said law is applicable only to those accused persons who have the credentials or antecedents of Qabza Group and are involved in illegal activities and belong to the gang of land grabbers or land mafia.
24. Learned counsel for the respondents also placed reliance on the case of Qabil Khan v. Vth Additional Sessions Judge South Karachi and others reported in 2018 PCr.LJ 1027 decided by this Court wherein it was held as under:
25. "12. Section 3 of Illegal Dispossession Act, 2005 can only be attracted when any person dispossess, grabs, controls or occupies the property without having any lawful authority to do so with the intention to dispossess, grab, control or occupy the property from owners or occupier of such property. In this case, per record Appellant is neither lawful owner nor lawful occupier of the subject, premises. Therefore, section 3 of the said Act, 2005 is not attracted."
26. However, in the judgment relied upon by the learned counsel for the applicant passed in the case of Sheikh Muhammad Naseem (supra) which was decided by a larger bench of five Honourable Judges of Supreme Court, while making reference to earlier unreported decision of Honourable Supreme Court given in the case of Gulshan Bibi and others v. Mohammad Sadiq and others in Civil Petition No.41/2008 along with Civil Appeals No.2054/2007 and 1208/2015 decided on 18.07.2016. declared the judgment passed in the case of Habibullah and others, relied upon by the learned counsel for the applicant as not to be good law. It was held as under:
27. "The five member bench of this Court in Gulshan Bibi's case supra while examining both the sets of cases came to the conclusion that it was not the intention of the legislature that only a particular category of persons can be prosecuted under the Illegal Dispossession Act, 2005. Thus the second set of cases was declared not to be good law."
28. It was further held:
29. "We may state that the term 'property grabbers' is not one of those terms that is popularly associated with any particular class of offenders such as terms 'Land grabbers', 'Qabza Mafia' or 'Qabza-Group'. In fact none of the popular terms which are identified with a specific category of offenders have been used anywhere in the Act. As the term 'property grabbers' appearing in the preamble of the Act has been used in general sense, it cannot be identified with any particular category of offenders in order to restrict the scope land applicability of the Illegal Dispossession Act, 2005 to a particular category of offenders."
30. In view of above, it appears that trial Court has passed the impugned order in a slipshod, hasty and mechanical manner which cannot be sustained in law. In view of above factual and legal position, the trial Court was obliged to have recorded evidence of both the parties, and after considering their evidence and the material / documents produced by them, it should have decided the complaint.
31. Consequently, impugned order dated 07.06.2018 passed by learned IVth Additional Sessions Judge, Malir, Karachi whereby he dismissed the complaint filed by the applicant under sections 3, 4 and 5 of the Illegal Dispossession Act, 2005, is hereby set aside. The case is remanded back to the trial Court with direction to proceed with the complaint and after providing opportunity to the parties to adduce their respective evidence, decide the complaint filed by the applicant under the Illegal Dispossession Act, 2005 on merits.
32. Before parting with this order, it may be observed that the observations made herein are only of tentative nature and the trial Court shall not be influenced by these observations and would decide the complaint on its own merits on the basis of evidence to be adduced and the documents to be produced by the respective parties.
33. SA/F-26/Sindh Case remanded.