2026 P Cr. L J 755

 2026 P Cr. L J 755

[Peshawar (Minogra Bench)]

Before Sabit Ullah Khan, J

Mst. SHAHEEN and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeals Nos. 229-M and 238-M of 2023, decided on 26th May,

2025.

(a) Illegal Dispossession Act (XI of 2005)---

----Ss. 3 & 4---Illegal dispossession---Scope---Petitioner was aggrieved

of Trial Court's order whereby his complaint filed under S. 3 of

Illegal Dispossession Act, 2005, was dismissed---Petitioner alleged

that she was owner in possession of the disputed house on the basis

of a sale deed; that after the death of her mother, she along with her

children resided in the said house for 4/5 months and upon leaving

the same for another city, she locked the house but when she

returned she found that accused had broken the locks and illegally

occupied two rooms two days prior---Record showed that neither

any eye-witness of the alleged act of dispossession was produced

before the Court by the complainant nor any other strong

circumstantial evidence was available on record to establish the

allegation levelled against the accused in the complaint---For

proving the offence of illegal dispossession under S.3(3) of the Illegal

Dispossession Act, 2005, it was the legal duty of the complainant to

bring on record independent and reliable evidence demonstrating

that the accused had forcibly taken possession by dispossessing the

complainant from the property---Complainant was also required to

mention all material particulars regarding the alleged act of illegal

dispossession in her complaint, however, the evidence of the

requisite standard was obviously missing in the case---Prior to filing

the instant complaint, the complainant had already filed a

complaint under S.145, Cr.P.C., which was dismissed by the Assistant

Commissioner on 23.11.2022 with directions to approach the Civil

Court for determination of the question of title---Said order was also

upheld by the Sessions Judge and thereafter, the complainant had

filed the present complaint under the provisions of the Illegal

Dispossession Act, 2005, which, in the given circumstances,

amounted to double jeopardy irrespective of the observation of the

Sessions Judge because the complainant had failed to provide any

legal justification for approaching the wrong forum---Therefore, the

accused were rightly acquitted of the charges by the Trial Court through impugned judgment---Appeal against acquittal was

dismissed, in circumstances.

Manzoor Ali and another v. The State and another 2020 MLD 1138

and Khadim v. Barkat and 2 others 2021 YLR 732 rel.

(b) Administration of justice---

----When a thing is required to be done in a particular manner

prescribed by law, it must be done in that manner alone and not

otherwise.

Muhammad Qaseem and others v. Abdul Hameed and another 2024

PCr.LJ 1575 rel.

(c) Illegal Dispossession Act (XI of 2005)---

----Ss. 3, 4 & 7---Illegal dispossession---Delivery of possession of

property to owner---Scope---Appeal had been filed by the accused

against the impugned direction of the Trial Court, whereby they

were ordered to vacate the possession of the house within a period

of 15 days---Held: Question before the Court was as to whether, in

the given facts and circumstances of the case especially in light of

the acquittal of the accused due to failure of the complainant to

establish the alleged dispossession in the required mode, manner or

standard of evidence, the Trial Court was justified in directing that

possession of the house be restored to the complainant---Official of

Police Post had stated that both parties had produced documents

regarding ownership of the house and it was specifically reported

that Mst. S , wife of accused AA had claimed that two rooms of the

disputed house were given to her as dower---Said portion was in

their possession and that the utility bills for electricity and gas were

in the name of AA ---In her complaint, the complainant also alleged

that, during proceedings under S.145 Cr.P.C, the accused side

produced forged, bogus and fictitious documents to falsely claim

ownership---Parties were closely related, the complainant and the

accused AA were real sister and brother---Prima facie, the

complainant had claimed ownership of the disputed house on the

basis of a registered sale deed dated 07.02.1991, showing its

purchase from one Z Shah for a consideration of Rs.60,000/-,

however, there also existed a document dated 03.07.2004, whereby

the complainant allegedly sold the said property to her mother---In

addition to that, other documents, produced by the parties in

support of their respective claims to ownership, were disputed and

controverted---Such facts gave rise to a question of joint ownership,

which could not be conclusively determined in these criminal

proceedings---Determination of ownership did not fall within the

exclusive jurisdiction of the Court under the Illegal Dispossession Act, 2005, as such matter laid solely within the domain of the Civil

Court, whereby all the questions qua title of the house might be

agitated---Even otherwise, in cases such as the present one, for the

restoration of possession under S.8 of the Act of 2005, the conviction

of the accused under subsection(2) or subsection(3) of the Act was a

sine qua non and without conviction of the accused i.e., alleged

dispossessor or illegal occupants, the restoration of possession could

not be ordered---Thus, the Trial Court, while acquitting the accused

of the charges, had erred in directing the restoration of possession

of the property without properly evaluating the evidence on record

in juxtaposition, hence, to that extent, the impugned findings were

not sustainable in the eyes of law---Appeal was allowed, accordingly.

Al Haaj Malik Muhammad Ashraf v. Javed Akhtar and another 2025

SCMR 787 and Syed Zanon Mian and 4 others v. Misslunisa 2022 YLR

2252 rel.

Sabir Shah for Appellants.

Haq Nawaz Khan, Addl. A.G for the State.

Barrister Dr. Adnan Khan and Syed Muhammad Amjad Abbas for

Respondent.

Date of hearing: 26th May, 2025.

JUDGMENT

SABIT ULLAH KHAN, J.---This single judgment in the instant appeal

shall also decide the connected Cr.A. No.238-M/2023 titled "Mst. Shazia

Riaz v. State and others" as both the matters are the outcome of same

complain filed by the respondent No.1 namely Mst. Shazia Riaz under

sections 3, 4, and 7 of the Illegal Dispossession Act, 2005 (the Act of

2005).

2. Short facts giving rise to both these criminal appeals are that

respondent No.1 namely Mst. Shazia Riaz has filed a complaint under

the provisions of the Act of 2005 against the present appellants and

one Arshad Ali, alleging therein that she is the owner in possession of

the disputed house on the basis of a sale deed dated 07.02.1991, as

described in Para No.1 of the complaint; that after the death of her

mother on 14.12.2019, she along with her children resided in the said

house for 4/5 months and upon leaving the same for Abbottabad, she

locked the house but when she returned on 16.07.2020 at 21:00 hours,

she found that Arshad Ali has broken the locks and illegally occupied

two rooms on the southern side two days prior. During the

proceedings under section 145 Cr.P.C, Arshad Ali has produced a

forged, bogus, and fictitious document and subsequently on

07.02.2023, the upper portion of the said house was also occupied

illegally by appellant No.2 namely Hazrat Said at the instance of the remaining accused. After the submission of report by the local police

upon preliminary inquiry, the accused were summoned and were

charge-sheeted on 10.03.2023, to which, they did not plead guilty and

claimed trial. The respondent/ complainant produced and examined as

many as five witnesses, after which, the statements of the accused

were recorded under section 342 Cr.P.C. wherein they claimed

innocence, however, neither opted to be examined on oath nor desired

to produce evidence in defence. On the conclusion of the trial and

after hearing arguments, the learned trial Court held that the

allegation regarding the commission of the offence against the accused

is not proved in accordance with law, hence, they were acquitted of

the charges, however, it was also held that since the

respondent/complainant was in lawful possession of the house before

her dispossession, therefore, the possession shall be restored to her

within a period of 15 days vide judgment dated 24.06.2023, hence,

these appeals.

3. Arguments heard. Record perused.

4. The record would reflect that the respondent/ complainant, in her

complaint has not mentioned the exact time and date of the alleged act

of dispossession from the disputed house by the accused rather it was

merely alleged that after residing in the said house for 4 /5 months

following the death of her mother, she had shifted to Abbottabad along

with her children and upon her return on 16.07.2020 at 21:00 hours,

she discovered that the house has allegedly been illegally occupied by

the accused namely Arshad Ali, who has broken the locks. Bacha

Nawab (PW-1), who is the father of the complainant as well as the

accused Arshad Ali, has admitted during his cross-examination that he

was not an eye-witness to the alleged incident of breaking the locks by

the accused. He has also stated that he was merely informed about the

occurrence by one Irshad; however, he did not mention any specific

time or date for the incident. He has further admitted that a complaint

had earlier been filed against Arshad Ali before the Sub-Divisional

Magistrate, which was dismissed. Moreover, he has acknowledged that

one of his daughters namely Mst. Nadia has filed a civil suit for

partition in respect of the same disputed house. The complainant Mst.

Shazia Riaz (PW-3) has also made significant admissions in her cross-

examination. She has acknowledged that her father namely Bacha

Nawab (PW-1) had two wives and that she, along with the accused

Arshad Ali and Mst. Nadia, were the children of the first wife namely

Mst. Zahida Bibi. She has further admitted in her cross-examination

that she has not personally witnessed the accused while breaking the

locks of the house. Neither any eye-witness of the alleged act of

dispossession was produced before the Court by the respondent/

complainant nor any other strong circumstantial evidence is available on record to establish the allegation levelled against the accused in the

complaint. It is an established law that for proving the offence of

illegal dispossession under section 3 (3) of the Illegal Dispossession

Act, 2005, it is the legal duty of the complainant to bring on record

independent and reliable evidence demonstrating that the accused

had forcibly taken possession by dispossessing the complainant from

the property. The complainant was also required to mention all

material particulars regarding the alleged act of illegal dispossession

in her complaint, however, the evidence of the requisite standard is

obviously missing in this case.

5. It is worth mentioning here that prior to filing the instant

complaint, the respondent/ complainant had already filed a complaint

under section 145 Cr.P.C., which was dismissed by the learned

Assistant Commissioner on 23.11.2022 with directions to approach the

civil court for determination of the question of title. The said order

was also upheld by the learned Sessions Judge, Malakand at Batkhela

vide order dated 07.02.2023 and thereafter, the complainant has filed

the present complaint under the provisions of the Illegal Dispossession

Act, 2005, which, in the given circumstances, amounts to double

jeopardy irrespective of the observation of the learned Sessions Judge

because the complainant has failed to provide any legal justification

for approaching the wrong forum. It is a settled principle of law that

when a thing is required to be done in a particular manner prescribed

by law, it must be done in that manner alone and not otherwise.

Regarding the applicability of the principle of double jeopardy,

reliance is placed on the case of "Muhammad Qaseem and others v.

Abdul Hameed and another" (2024 PCr.LJ 1575). Therefore, the

accused/respondents were rightly acquitted of the charges by the

learned trial Court through impugned judgment. In a similar case, the

Hon'ble Sindh High Court in the case titled "Manzoor Ali and another

v. The State and another" (2020 MLD 1138), while dismissing a

complaint filed under sections 3 and 4 of the Illegal Dispossession Act,

2005, has held as under:

"Prima facie, the complainant never successfully established his

forcible or wrongful dispossession which, otherwise, was

necessary ingredient to make out offence within the meaning of

S.3(3) of the Act. Property in question, was situated in a

populated area where forcible dispossession of complainant had

happened on gun point. Complainant did not examine any

independent person from the mohalla so as to prove his claimed

forcible dispossession on a particular date and time.

Circumstances established that the complainant had failed in

proving the offence within the meaning of S.3(3) of the Act. Appeal was allowed and accused were acquitted by setting aside

the conviction and sentence recorded by the Trial Court."

It is also an established principle of law that unless the complainant

clearly proves with strong and reliable evidence that the accused has

forcibly or unlawfully taken the possession of the property, the offence

of illegal dispossession cannot be established. In other words, the mere

allegations, without substantiating proof of forcible possession, are not

sufficient to constitute the alleged offence. In the case titled "Khadim v.

Barkat and 02 others" (2021 YLR 732 Sindh), the Court, while

dismissing an appeal against acquittal in an identical matter, has

reiterated that where the date and time of the alleged incident are not

clearly mentioned or proved through unimpeachable evidence then

the benefit of doubt must be extended to the accused. It was

specifically observed that the absence of these material particulars in

the complaint or during the trial proceedings undermines the case of

the prosecution and thus the accused cannot be convicted merely on

vague or generalized allegations. In that judgment, it was held as

under:

"Complainant had alleged that about three months prior to filing the

complaint, accused persons illegally occupied one acre of his

land. Record showed that no date and time of the alleged

incident was either mentioned in the subject complaint filed

under S.3(2) of Illegal Dispossession Act, 2005 or in the evidence

of complainant and his witnesses. Even descriptions and

boundaries of the subject land measuring 1-0 acres had not been

shown in the complaint, which were essential for the identity of

the subject area. Complainant had not produced any document

to prove that he was owner of the subject land and he ever

remained in possession thereof. Appeal against acquittal was

dismissed, in circumstances."

6. Adverting to the instant appeal, which has been filed by the

accused against the impugned direction of the learned trial Court,

whereby they were ordered to vacate the possession of the house

within a period of 15 days. The question arises before this Court as to

whether, in the given facts and circumstances of the case especially in

light of the acquittal of the accused due to failure of the respondent/

complainant to establish the alleged dispossession in the required

mode, manner or standard of evidence, the learned trial Court was

justified in directing that the possession of the house be restored to the

respondent/ complainant. In report dated 21.02.2023 (Ex.PW4/1), the

official of Police Post Batkhela has stated that both parties have

produced documents regarding ownership of the house. It was

specifically reported that Mst. Shaheen (appellant No.1), wife of accused Arshad Ali has claimed that two rooms of the disputed house

were given to her as dower. It was also noted that the said portion was

in their possession and that the utility bills for electricity and gas were

in the name of Arshad Ali. In her complaint, the respondent/

complainant Mst. Shazia Riaz also alleged that, during proceedings

under section 145 Cr.P.C, the accused side produced forged, bogus and

fictitious documents to falsely claim ownership. It is noteworthy that

the parties are closely related: the complainant Mst. Shazia Riaz and

the accused Arshad Ali are real sister and brother. Prima facie, the

respondent/ complainant has claimed ownership of the disputed house

on the basis of a registered sale deed dated 07.02.1991 (Ex.PW3/7),

showing its purchase from one Zahir Shah for a consideration of

Rs.60,000/-, however, there also exists a document dated 03.07.2004

(Ex.PW3/9), whereby the complainant allegedly sold the said property

to her mother Mst. Zahida. In addition to that, other documents,

produced by the parties in support of their respective claims to

ownership, were disputed and controverted. These facts give rise to a

question of joint ownership, which cannot be conclusively determined

in these criminal proceedings. Recently, the Hon'ble Supreme Court of

Pakistan, in the case of "Al Haaj Malik Muhammad Ashraf v. Javed

Akhtar and another" (2025 SCMR 787), while upholding the acquittal of

the accused in a similar matter, has observed that:

"Accused was a co-owner in property in question and High Court

had acquitted him of the charge. Co-owner is deemed to be in

constructive possession of every inch of joint holding unless a

formal partition has been effected. Jurisprudence on co-

ownership consistently affirms that one co-owner cannot allege

dispossession at the hands of another without establishing

exclusive possession through partition proceedings. Provision of

Illegal Dispossession Act, 2005 is not confined to cases involving

land grabbers or Qabza Mafia but extends to any person who

has been illegally dispossessed from immovable property,

however it is applicable only where there is clear evidence of

unlawful dispossession. In cases where parties are co-owners,

question of forcible dispossession does not arise unless partition

proceedings have concluded and exclusive ownership is

established. Acquitted accused enjoys a double presumption of

innocence. Appellate Court should exercise restraint in

overturning an acquittal unless the judgment is manifestly

perverse, arbitrary, or suffers from a glaring misreading or non-

reading of material evidence. Supreme Court declined to

interfere in judgment of acquittal passed in faovur of accused.

Petition for leave to appeal was dismissed and leave to appeal

was refused." More so, it is a well-settled principle of law that the determination

of ownership does not fall within the exclusive jurisdiction of the

Court under the Illegal Dispossession Act, 2005, as such matters lie

solely within the domain of the civil Court, whereby all the questions

qua title of the house may be agitated. Even otherwise, in cases such as

the present one, for the restoration of possession under section 8 of

the Act of 2005, the conviction of the accused under subsection (2) or

subsection (3) of Section 3 of the Act is a sine qua non and without

conviction of the accused i.e., alleged dispossessors or illegal

occupants, the restoration of possession cannot be ordered. In this

regard, reliance may be placed on the case titled "Syed Zanon Mian

and 4 others v. Misslunisa" (2022 YLR 2252), wherein this Court, in

quite similar circumstances, has held that:

"6. It is manifest from section 8 read with subsections (2) and (3) of

section 3 of the Act that the Court in case of conviction of the

accused can pass the order for restoration of the property but in

the present case the learned trial Court, after recording evidence

in the case, has acquitted the accused on one hand and on the

other hand has ordered for restoration of possession of the land

to complainant. In other words, conviction is sine qua non for

handing over the possession under section 8 of the ibid Act.

Thus, findings of the learned trial Court are not in consonance

with the above referred provisions of the Act as well as section

367, Cr.P.C. requiring the Court to give specific findings for

determination of a criminal controversy. So, the judgment of the

learned trial Court, being illegal, is liable to be set aside."

Recently in the case of "Ali Bahadur v. Khan Bahadur etc" (W.P

No.245-A/2011) decided by this Court on 19.09.2024, when this Court

was resolving the question as to whether on acquittal of the accused,

the Court under section 8 of the Act of 2005 could order restoration of

the possession to the complainant has dismissed the writ petition by

holding as under:

"9 In view of the above, the answer to the above question is that

where an accused person had been acquitted from the charges

and no order of conviction has been passed against him under

subsections (2) and (3) of section 3 of the Act of 2005 then an

order for restoration of property under subsection (1) of section

8 of the ibid Act could not be passed."

Thus, the learned trial Court, while acquitting the accused of the

charges, has erred in directing the restoration of possession of the

property without properly evaluating the evidence on record in

juxtaposition with the settled law on the subject, hence, to that extent,

the impugned findings are not sustainable in the eyes of law. 7. Accordingly, this appeal is allowed and resultantly, the judgment

of the learned trial Court to the extent of the directions regarding the

restoration of possession in favour of the respondent/ complainant is

hereby set aside. The aggrieved party may approach the Court of

competent jurisdiction for redressal of his/her grievances, in

accordance with law. It is further clarified that the above findings of

this Court are confined only to the decision of the present appeals and

shall not, in any manner, prejudice the mind of any forum seized of

the matter of determining the ownership of the property/ house. The

connected Cr.A No.238-M/2023 filed by the respondent/ complainant

against the acquittal of the accused, being devoid of merit, stands

dismissed.

JK/183/P Appeal allowed.