Ifrahim Hadayat Vs Atif Masih etc.

Form No. HCJD/C-121

ORDER SHEET

LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

W.P.No.19347 of 2025 Ifraheem Hadayat. Vs. Atif Masih, etc.

Sr. No. of order Date of order Order with signature of Judge, and that of Parties or counsel, of proceeding of proceeding where necessary 19.05.2023 Mr. Nazir Ahmad Chaudhary, Advocate for petitioner.

Mr. Muhammad Nasir Chohan, Addl.

Advocate General with Sharafat, A.S.I.

Rao Imran Wajid, Advocate for respondents No.1 to 4.

This constitutional petition is aimed at calling in question the vires of order dated 28.01.2025 passed by learned Additional Sessions Judge, Renala Khurd who while accepting the application u/s 265-K Cr.P.C. acquitted the respondents No.1 to 4 from the complaint.

2.Arguments heard and record perused.

3.Perusal of record reveals that petitioner filed complaint under section 3 of the Illegal Dispossession Act, 2005 while impleading respondents No.1 to 4 as accused in which after recording of cursory statements, respondents No.1 to 4 were summoned to face the trial. The accused / respondents were handed over the copies of the documents u/s 265-C Cr.P.C. in accordance with law and they were charge sheeted on 14.02.2022 to which they pleaded not guilty and claimed trial. Before recording of prosecution evidence, respondents No.1 to 4 filed application u/s 265-K Cr.P.C. before learned ASJ for their acquittal which was duly contested by the petitioner and vide order dated 06.07.2024 the application filed u/s 265-K Cr.P.C. was dismissed being devoid of any force. The said order was not assailed before higher forum and after attaining finality, the petitioner produced his evidence before the trial court. The

examination in chief of petitioner was recorded as PW.1, Gulzar Masih as PW.2 & Pervaiz Masih as PW.3 on 08.01.2025 but surprisingly no cross examination was conducted in accordance with law and immediately after the said date, respondents No.1 to 4 again filed application u/s 265-K Cr.P.C. which was duly contested on merits but learned ASJ this time accepted the petition filed u/s 265-K Cr.P.C. and dismissed the complaint with the observation that “no incriminating material has surfaced on record against accused persons, therefore, there is no chance of resurrection of fragile prosecution case against the present accused persons. Consequently, there would be no probability of the accused being convicted in this complaint case”. The observation so given by the learned ASJ is novel in nature because earlier the court not only admitted the stance of the petitioner but his application filed under section 7 of the Illegal Dispossession Act, 2005 was also accepted whereby SHO concerned was directed to proceed to the property in question and hand over possession thereof to the petitioner as temporary arrangement. The said order was assailed before this Court in Crl. Revision No.45035 of 2024, however, the said criminal revision was not contested upon merits and after obtaining favorable order, the same was withdrew from the court by the respondents.

4.The petitioner has not only produced his witnesses but he is pressing hard regarding illegal act of the respondents who has also produced documentary evidence in proof of his assertion as almost 87 documents are part of record and learned ASJ without even getting cross examination upon the witnesses gave illegal favor to the respondents which amounts to the review of order which is not permissible under the law. If any reference in this regard is needed, that can be made to the case law reported as SHABANA KHAN ADVOCATE vs. Major

(Retd.) JEHANZEB ASLAM and 2 others (2022 MLD 1109) wherein it is held that in complaint cases under the Illegal Dispossession Act, 2005 acquittal u/s 265-K Cr.P.C is not permissible once cognizance has been taken. The relevant extract from said order is reproduced below for ready reference:-

“Bare reading of Section 265-K, Cr.P.C. reveals that the said section is not meant for the cases registered upon complaint, more particularly, once a cognizance has been taken in terms of sections 3 and 4 of the Illegal Dispossession Act, 2005, the complaint could not have been dismissed summarily, under section 265-K, Cr.P.C”

Similar view was taken in case reported as Rahat Bashir vs. Additional Sessions Judge (2010 YLR 2383 (Lahore) & Ehsanullah vs Manzar Hussain (2010 YLR 3161 (Lahore). The consistent judicial position is that once notice has been issued to the accused and cognizance has been taken, courts discourage acquittal under section 265-K, Cr.P.C. This is particularly true in complaint cases under the Illegal Dispossession Act, 2005 where factual disputes regarding possession, ownership, or illegal dispossession must be resolved through trial proceedings. The courts have uniformly emphasized that summary dismissal or premature acquittal undermines the evidentiary process and such applications must be rejected unless it is apparent on the face of the record that no offence is made out. Even otherwise, not a single development was made in the case rather earlier application was dismissed without recording of the evidence of the petitioner whereas the second application was accepted by learned ASJ on 28.01.2025 when evidence of three witnesses have been recorded in proof of guilt of accused.

5.In view of above, instant petition is allowed, resultantly, the impugned order passed by learned ASJ dated 28.01.2025 is set-aside. The complaint filed by the petitioner u/s

3 of the Illegal Dispossession Act, 2005 before learned ASJ shall be deemed to be pending and it shall be decided afresh on merits by the said court after recording the evidence of both sides.

Let a copy of this order be transmitted to the learned Addl: Sessions Judge Renal Khurd for necessary information and compliance.

(Abher Gul Khan) Judge Approved for reporting

JUDGE

Abdul Rehman