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Criminal Revision Application No. 125 of 2012, decided on 24th September, 2013.

----Ss. 265-K & 561-A---Illegal Dispossession Act (XI of 2005), Ss.3 & 4---Illegal dispossession---Dismissal of application for acquittal of accused---Validity---Applicant, from the very beginning had contended that he had nothing to do with the shop in question but he was running his business in a different shop---Inquiry report submitted by the Police revealed that original owner of shop in question was in possession of said shop and was running his business therein---Trial Court did not consider the grounds raised by the accused in his application filed under S.265-K, Cr.P.C.---Accused had also filed affidavit wherein he had reiterated that he had no concern with the shop in question---Trial Court did not record the reasons with regard to statement of the accused, wherein he had denied the ownership or the possession of shop in question---Trial Court was bound to ascertain correct factual position as per allegations made in the complaint---Three consecutive reports submitted by the Police had not been considered; and the contents of application under S.265-K, Cr.P.C., as well as the statement of accused, had also been ignored---Findings and observations of the Trial Court that since allegation had been made, accused/applicant, must undergo the purgation of a criminal trial, was a mockery of whole system, which had nullified the purpose, for which provision of S.265-K, Cr.P.C., were made---Section 265-K, Cr.P.C., allowed the court to exercise discretion to foster administration of criminal justice, but the Trial Court had failed to exercise such discretion---Reasons recorded by passing the impugned order were not plausible, exhaustive or judicious exercise---Impugned order was set aside and applicant was acquitted, in circumstances.

----S. 265-K---Power of the court to acquit accused---Provision of S.265-K, Cr.P.C., was self-explanatory, that accused could be acquitted at any stage of the case even without recording the evidence, when there was no probability of accused being convicted of any offence---Provision of S.265-K, Cr.P.C., were meant to prevent the rigour of prolonged trial, when it was apparent from the record that the trial would not conclude on conviction.

----S. 561-A---Inherent powers of High Court under S.561-A, Cr.P.C. were meant for dispensation of substantial justice. Shakeel Ahmed for Applicant. Muhammad Arif for Respondent No.1. Shehzado Saleem, A.P.-G., Sindh. Date of hearing: 19th September, 2013.

The application under section 265-K, Cr.P.C, filed by the applicant Agha Wazir Durrani in the trial Court was dismissed. Penultimate Para of impugned order is reproduced as under:-- "There are allegations against the accused that he along with the co-accused had forcibly and illegally dispossessed the complainant and occupied the shop in dispute. It appears that on the basis of material available on record my learned predecessor ordered for registration of present complaint against the accused. It appears that the allegations against the accused requires enquiry at trial and prima facie on the basis of material available on record the charge does not appear to be groundless. In my humble view without recording affording of complainant and his witnesses and without affording opportunity of cross-examination to accused, at this stage, it cannot be said that the charge is charge-less. The evidence of complainant side is yet to be recorded. In the circumstances I find no merit in the application at this stage. The same is therefore, hereby dismissed." 2. Being aggrieved and dissatisfied with the impugned order, the captioned application under section 439 read with section 561, Cr.P.C. is preferred by the applicant on the facts and grounds as set forth in the memo of instant revision application. 3. Arguments advanced by both the sides are considered and record is also perused. 4. Relevant facts as narrated by the complainant Muhammad Ziauddin (respondent No.1) are that in response to advertisement published in daily "Jang" dated 23-6-2007 by the owner of Sam Wood Shopping Mall Project, he booked two shops bearing shop No. G-12 on ground floor and shop No. S-48 on second floor of the said shopping mall and paid full and final sale consideration of Rs. two millions and had received the vacant and peaceful possession of the said shop; that the complainant had installed shutters in both the shops and locked the same: that on 6-5-2010, at 2-00 p.m. the complainant found the shutter of said shop was broken and belongings were missing and the intervening wall in between shop No.G-11 and his shop No. G-12 was removed and both shops were converted into one shop; that he found respondents Nos.2 and 3 present in the said shop and during enquiry disclosed him that Agha Wazir Durrani handed over the said shop to them and refused to vacate and handing over the possession of his shop No. G-12 to him rather they issued him threats of dire consequences hence he lodged a direct complaint which was registered and admitted to regular hearing by an order dated 10-5-2011 by learned 1st Additional Sessions Judge, Karachi-South. 5. Learned counsel for the applicant Agha Imtiaz Ali Khan at the very outset contended that the applicant has no concern of whatsoever in respect of Shop No. G-12, who is actually running his business on fourth floor of same shopping mall. He has further submitted that shop in question is not in his possession rather it is in the possession of one Naeem Ahmed Jalbani son of Fatehullah Khan who is running the business of cloths in shop in question. Moreso, the enquiry report submitted by the police also reveals that the said owner of shop is also in possession of original file in respect of shop in question but the learned trial court did not consider the grounds raised by him in application filed under section 265-K, Cr.P.C. 6. It appears that on 30-1-2013, parties along with their advocates have shown their appearance before this court, when the learned counsel for the respondent stated that if the applicant has no concern whatsoever nature with the alleged crime of dispossession, then he was not required to attend the proceedings, however he has stated that if the applicant files an affidavit before this court, clarifying his position in this regard, the respondent will not prosecute the applicant in the instant matter. On the other hand, learned counsel for applicant states that he is willing to file such affidavit before this court. 7. On directions of this court, the respondent No. 1 has filed his affidavit along with statement dated 31-1-2013, wherein he has categorically stated that he has no concern of whatsoever nature in respect of shop in question and that neither he is in possession of the shop in question nor have any claim over the said shop. 8. Perusal of the record transpires that as per information collected by the respondent No. 1 one Dr. M. A. Khan was found occupied the shop No. G-12 on monthly rent basis. It is further stated that respondents Nos. 2 and 3 are his employees and they have left the job which shows that applicant is involved in this case. 9. On the other hand, the applicant in his affidavit in rejoinder once again reiterated that he has no concern of whatsoever nature in respect of shop in question, neither he is in possession of the shop in question nor having any claim/interest over the said shop and further submitted that the story as narrated in the counter affidavit by the respondent is concocted and false. 10. The grounds raised in the application under section 265-K, Cr.P.C. filed by Agha Wazir Durrani (applicant) are that he has been falsely and mala fidely implicated by the applicant in this case as he is running his business in the office situated at the top floor in the said shopping mall/building and not in shop No. G-12 ground floor of said shopping mall/building and that he has no concern of whatsoever nature in respect of shop in question as neither he is in possession of disputed shop nor has any claim over the said shop and his words are duly supported in three consecutive reports dated 7-5-2010, 15-7-2010 and 27-8-2010 by the concerned police, which have also been annexed along with the instant application, wherein it is clearly mentioned that the shop in question is not in possession of respondent No. 3, rather the shop in question is in possession of one who is running the business of cloths merchants being tenant of one Naeem Ahmed Jalbani who claims to be the owner of shop in question and has also in possession of original documents/file in respect of the shop in question. And, therefore, being a factual controversy this is up to the civil court to decide the matter/dispute as to who is lawful owner of shop in question as the applicant herein was neither in possession nor had any claim over the shop in question and if at all, there is a dispute in between respondent No. 1 and the said Naeem Ahmed Jalbani, who claims to be the owner of the shop. 11. Record shows that the applicant has also filed certified copy of the statement dated 17-8-2010 in this court which was filed in the trial court. In para No. 5 of the said statement, the applicant herein has stated that neither he is in possession of shop in question nor have any claim over the said shop but neither statement dated 17-8-2010 filed by the applicant nor contents of the application under section 265-K, Cr.P.C. were considered by the trial court which is a serious error. As stated above, on assurance that the respondent will not prosecute the applicant on filing the affidavit before this court, clarifying his position, the applicant has filed, necessary affidavit wherein he has categorically repeated his statement that neither he took the possession of disputed shop nor he claims its ownership in any manner. Respondent has filed counter affidavit and the applicant has also filed affidavit in rejoinder wherein he has once against reiterated the similar statement on oath. 12. The learned trial court did not record the reasons with regard to statement of the applicant wherein he has emphatically denied the ownership or the possession of said shop in any manner, as trial court bound to ascertain correct factual position as per allegations made in complaint. Penultimate para of impugned order is not speaking one, particularly three consecutive reports dated 3-7-2010, 15-7-2010 and 27-8-2010 submitted by the police have not been considered and the contents of the application under, section 265-K, Cr.P.C. as well as the statement of applicant have also been ignored, therefore, the findings and observation of the trial Court to say that since an allegation has been made, the accused (applicant) must undergo the purgation of a criminal trial is a mockery of whole system, which has nullified the purpose, for which provision of section 265-K, Cr.P.C. were made, as this section allow the court discretion exercisable to foster administration of Criminal Justice, which would flourish only if the courts go for what is just and pragmatic, therefore, the material brought on the record including affidavits and statement sworn by the applicant and statement filed by him, appeals to arise common sense. The provision of section 265-K is itself explanatory, that the accused may be acquitted at any stage of the case even without recording the evidence, when there is no probability of the accused being convicted of any offence. Sufficient incriminating material has not brought on the record implicating the applicant in commission of the offence as the provision of section 265-K, Cr.P.C. are meant to prevent the rigours of prolonged trial when it is apparent from the record that the trial shall not conclude on conviction. Suffice to say that reasons recorded by passing the impugned order are not plausible, exhaustive or judicious exercise; more particularly the order dated 10-5-2011, whereby the complaint was registered, does not show that under what provisions of law the complaint was registered as from perusal of the record it appears that the provisions of sections 3 and 4 of the Illegal Dispossession Act, 2005 are not attracting in the circumstances of the case. It is also settled proposition of law that expression "at any stage" either be the very initial stage after taking the cognizance or subsequent stage or even a later stage, it may be at any stage even before the charge is framed, before recording the evidence as recording of prosecution evidence is not a pre-condition. 13. It is not out of context that inherent power of this court under section 561-A, Cr.P.C. are meant for dispensation of substantial justice. In the instant case there is a controversy regarding the possession and since admittedly the applicant is not in possession of the shops in question as neither he claims its ownership nor holding its occupation, therefore, examining the evidence of the complainant side and also the evidence in defense shall not improve the case, therefore, certainly proceedings of the present case, registered against the applicant, is either misconceived or amounts abuse of process of the Court, therefore, proceedings on private complaint cannot be allowed to continue for indefinite period which shall not culminate on conviction of the applicant. Resultantly, the impugned order is set aside and consequently the applicant is acquitted. 14. Instant Criminal Revision Application along with pending applications stands disposed of in the manner indicated above. HBT/I-21/K Revision application allowed.

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