Habib Ur Rehman Vs State & others

JUDGMENT SHEET

PESHAWAR HIGH COURT

MINGORA BENCH

(Judicial Department) Cr.A No. 36-M/2024

Habib-ur-Rehman son of Azim Khan (Appellant) Versus

State & others (Respondents)

Present: M/S Syed Abdul Haq, ASC and Zia-ul-Haq, AHC, for appellant/acquitted accused.

Mr. Kamal Khan, Astt: A.G, for State.

M/S Said Hakim, ASC, Atlas Khan (Dagai) and Iqbal Hussain, AHCS, for respondents/ complainants.

Cr.A No. 47-M/2024

Irfan Ullah Khan & others (Appellants) Versus

State & another (Respondents)

Present: M/S Atlas Khan (Dagai), AHC & Said Hakim, ASC, for appellants/complainants.

Mr. Kamal Khan, Astt: A.G. for State.

M/S Syed Abdul Haq, ASC and Zia-ul-Haq, AHC, for accused/respondent.

Date of hearing: - 04.6.2025

JUDGMENT

SALAH-UD-DIN, J.- Through this single judgment, I intend to decide instant criminal appeal bearing No.36-M/2024 titled “Habib-ur-Rahman v/s State & others” as well as connected criminal appeal bearing No. 47-M/2024 titled “Irfan Ullah & others v/s State & another” , as both these connected Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

matters are by-product of impugned order/judgment dated 18.01.2024, handed down by learned Additional Sessions Judge/M.C.T.C, Malakand at Batkhela, whereby upon conclusion of a full-fledged trial, present appellant/accused namely Habib-ur- Rahman was acquitted of the charge of his criminal liability, however, at the same time, he was directed to restore possession of the disputed property to present respondents No. 2 to 6 (complainants in the original complaint) within 15-days of passing of order. Deputy Commissioner and Post Commander, District Malakand were directed to assist the restoration proceedings qua the property in dispute to the respondents/complainants. Likewise, through connected criminal appeal bearing No. 47-M of 2024, appellants/complainants have impugned aforesaid order/judgment of learned trial Court qua acquittal of respondent No. 2 namely Habib-ur- Rahman from the charge of his criminal liability, within the ambit of section 3 of Illegal Dispossession Act, 2005 (hereinafter referred as “Act of 2005”) and prayed for awarding of normal penalty of ten years, along with fine, in order to meet the ends of Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

justice. Concluding Paras of ibid judgment are reproduced hereunder for ready reference:-

20.The crux of the above discussion is that prosecution failed proved the alleged offence against the respondent to the extent of his involvement in the case although it is proved that the complainant was dispossessed from the disputed property. Since there are sufficient doubts and dents regarding the involvement of the respondent in the alleged act of dispossession and by extending the benefit of doubt to him, he is acquitted of the charges leveled against him. He is on bonds; his bonds stand cancelled and sureties are absolved of the liabilities of bail bonds.

21- Since the complainant was dispossessed from the disputed property who is lawful owner and occupier of the disputed property, hence it is directed possession of the disputed property be restored to the complainant within 15 days of passing of this order. The Deputy Commissioner, Malakand and Post Commander shall assist the restoration of the possession to the complainant and the complainant shall be put in possession. A copy of this order be sent to Deputy Commissioner, Malakand and Post Commander concerned for compliance.”

2.Arguments of learned counsel for parties as well as learned Astt: A.G for State were heard and requisitioned record perused with their valuable assistance.

3.In nutshell, present respondents then complainants have put up a claim in the form of a complaint, preferred U/S 3 of the Act of 2005 in terms that they are ancestral owners of the property in dispute, fully detailed in the head-note of the Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

complaint. Complainants have also alleged that the property had fallen into their ownership & possession by dint of judgment & decree dated 02.4.2014, rendered in suit bearing No. 6 of 2012 titled “Inam Ullah & others v/s Ghani Khan & others”. It was also averred that against the aforesaid judgment and decree dated 02.4.2014 of learned civil Court, petitions of the respondents namely Ghani Khan & others have been dismissed up to the august Supreme Court of Pakistan. Even objection petition of respondents of the year 2014 also met the same fate and got dismissed from different Courts and said verdicts had attained finality. About three days back, when complainants have visited the property in question, they came to know that it was forcibly occupied by present appellant then accused and started construction in the same. Complainants also alleged that it was present appellant/accused who forcefully dispossessed them from the property in dispute and they prayed for its restoration. Accused was asked time and again to mend his ways and vacate the disputed premises, however, of no avail.

Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

4.Appellant was summoned, charge was framed against him, to which he pleaded not guilty and claimed trial. Complainants produced as many as four (04) witnesses and thereafter, statement of appellant was recorded U/S 342 Cr.P.C, wherein he vehemently denied the allegations put-forward by complainants, however, he opted to produce evidence in his own defence within the meaning of section 340 (2), Cr.P.C and accordingly examined as many as four

(04)witnesses, including his own statement in the form of DW-1. On conclusion of trial proceedings, appellant was acquitted of the charge of his criminal liability vide the impugned order/judgment dated 18.01.2024 of learned trial Court, as highlighted above with minute detailed, in preceding Para of this judgment, hence, these connected matters.

5.Learned counsel for appellant/acquitted accused has mainly been aggrieved of impugned judgment of learned trial Court to the extent of directions made qua restoration of possession of the property in dispute in favour of respondents/ complainants. It was vehemently argued by learned counsel that once appellant then accused was Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

acquitted from the charge of his criminal liability, then in that eventuality, no order for restoration of possession of the property in dispute could be made.

6.As against this, learned counsel for respondents/complainants argued that in view of the overwhelming evidence brought on record by the respondents, appellant/accused deserves to be awarded maximum dose of ten years, therefore, the findings of learned trial Court to this extent need reversal. They also argued that since respondents have obtained ownership and possession of the property by dint of judicial precedents in the form of judgments and decree, which have been upheld and maintained up to the august Supreme Court of Pakistan, therefore, the issue with regard to possession of the property was a past and closed chapter.

7.In view of the above divergent pleas of both the contesting parties, the only question for determination before this Court would be as to whether an accused person who has been acquitted from the charge of his criminal liability, then in that eventuality, learned trial Court can pass an order in Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

respect of restoration of possession or not? In order to answer the aforesaid formulated question, it would be in the fitness of things to reproduce sections 3 & 8 of the Act of 2005, which read as under:-

3.Prevention of illegal possession of property, etc.-

(1)No one shall enter into or upon any property to dispossess, grab, control or occupy it 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.

(2)Whoever contravenes the provisions of the subsection (1) shall, without prejudice to, any punishment to which he may be liable under any other law for the time being in force, be punishable with imprisonment which may extend to ten years and with fine and the victim of the offence shall also be compensated in accordance with the provision of section 544-A of the Code.

(3)Whoever forcibly and wrongfully dispossesses any owner or occupier of any property and his act does not fall within sub-section (1), shall be punished with imprisonment which may extend to three years or with fine or with both, in addition to any other punishment to which he may be liable under any other law for the time being in force. The person dispossessed `shall also be compensated in accordance with provisions of section 544A of the Code].

8.Delivery of possession of property to owner, etc.-

(1)On conclusion of trial, if the Court finds that an owner or occupier of the property was illegally dispossessed or property was grabbed in contravention of section 3, the Court may, at the time of passing order under subsection (2) of that section, direct the accused or any person claiming through him for restoration of the possession of the property to the owner or, as the case may be, the occupier, if not already restored to him under section 7.

(2)For the purpose of subsection (1), the Court may, where it is required, direct the officer-in-charge of the police station for such assistance as may be required for restoration of the possession of the property to the owner or, as the case may be, the occupier.

(underline supplied)

Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

8.A combined reading of the

aforementioned provisions reveals that if, in a criminal proceeding, it is established that an accused person has unlawfully entered upon any property and dispossessed its lawful owner or occupier, such person shall be liable to punishment as prescribed under subsection (2) of Section 3 of the Illegal Dispossession Act, 2005. Likewise, an accused may also be convicted and sentenced under subsection (3) of the same section, subject to fulfillment of the conditions stipulated therein. Furthermore, the plain and unambiguous language of Section 8 of the Act clearly indicates that the Court seized with a complaint under the Act may, at the time of passing an order under subsection (2) or (3) of Section 3, also direct the restoration of possession of the property to the lawful owner, occupier, or complainant. Therefore, the cumulative effect of Sections 3 and 8 of the Act is that only upon conviction of a nominated accused under subsection

(2)or (3) of Section 3, the Court may lawfully pass an order for restoration of possession in favour of the rightful claimant. Moreover, the restoration of Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

possession of the property to the complainant or owner can only be ordered upon the conviction and sentencing of the accused under Section 3 of the Illegal Dispossession Act, 2005. If the accused has not been convicted and punished under the said provision, no such direction for restoration of possession may legally be passed. The phrases “at the time of passing order under sub-sections (2) and

(3)of that section” and “direct the accused for restoration of the possession of the property to the owner” are of critical importance, as they unmistakably reflect the legislative intent. These expressions clearly signify that the remedy of restoration of possession is contingent upon a finding of guilt and conviction under sub-sections

(2)and (3) of Section 3 of the Act.

9.The issue as to whether, in the absence of a conviction under subsection (2) or (3) of Section 3 of the Illegal Dispossession Act, 2005, an order for restoration of possession under subsection (1) of Section 8 of the said Act can be passed, came under consideration before this Court in case titled “Syed Zanon Mian & 04 others v/s Mst. Misslunisa” Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

reported as 2022 YLR 2252, whereby in respect of the matter-in-issue, it was observed as under:- “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 case titled “Ali Bahadur

Vs. 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 U/S 8 of the Act of 2005 could order restoration of the possession to the complainant has dismissed the writ petition by holding that:-

“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 sub-section (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.”

Similarly, this Court in respect of

criminal liability of an accused person under the ambit of the Act of 2005 in case titled “Javaid v/s Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

Sher Zaman & others” (Cr.A No. 58-M of 2025) decided on 28.3.2025 has held as under:-

“In view of above depositions of star witnesses of appellant/complainant including his own testimony before the Court, it is crystal clear that neither appellant could produce any documentary evidence about ownership of property in dispute wherefrom he was allegedly dispossessed nor his witnesses could utter a single word in their testimonies before Court that in their presence the alleged offence of dispossession of appellant was took place, therefore, the whole allegation of appellant/ complainant in terms that he has been dispossessed from property in dispute is standing in vacuum. As per spirit & object of Act 2005, criminal liability of nominated accused in a complaint has to be fixed, as such, all principles governing criminal administration of justice are to be strictly applied and by pressing into service the same, complainant/prosecution has not been able to prove criminal charge against accused/respondents. In view of aforesaid lacuna & flaw, case of appellant/complainant is a case of no evidence.”

Earlier, this Court in case titled

“Habib Ullah & others v/s Chaman & others” reported as 2022 P Cr. LJ 1730 had formed the following view:-

“Petitioners/accused persons were aggrieved of order passed by Trial Court restoring possession to respondents/ complainants. Merely on the basis of civil litigation, legal proceedings in criminal matter neither could be terminated nor transfer of possession in terms of S. 8 of Illegal Dispossession Act, 2005 could be declared illegal. In order to constitute an offence under provisions of S. 3 of Illegal Dispossession Act, 2005 complainant was to disclose existence of unlawful act (actus reus) and criminal intent (mens rea). Act of petitioners/accused persons by dispossessing respondents/complainants who were occupant of property with a categorical stance that on a particular date they were illegally dispossessed by petitioners/accused persons was proved not only through oral but also through documentary evidence. Such order was maintained up to Supreme Court. Once Trial Court found commission of offence, i.e. dispossession of respondents/complainants Trial Court rightly ordered that position be restored/handed over to respondents/complainants.”

Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

10.Conclusion of the above discussion is that where an accused person has been acquitted of the charge of his criminal liability, and no conviction has been recorded against him under sub-sections (2) or (3) of Section 3 of the Illegal Dispossession Act, 2005, an order for restoration of possession under sub-section (1) of Section 8 of the said Act cannot be legally passed.

11.Now coming to the acquittal of present appellant then accused from the charge of his criminal liability, impugned herein by the appellants then complainants through connected criminal appeal No. 47-M of 2024. First & foremost, though complainant has charged present appellant for the alleged commission of his dispossession, however, neither the complainant nor his witnesses have uttered a singled word that they have ever seen the appellant at the time of making entry into the disputed property. Complainants have also not mentioned the alleged date and time, on which they have allegedly dispossessed from the property by the appellant then accused. Complainant also Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

admitted that the women of their family and other co-owners did not file any complaint regarding the disputed land. Complainant expressed ignorance about the fact that several individuals are allegedly running businesses on the suit property in the aforementioned civil case and are reportedly paying rent to the Qazi family. He added that the case filed against Ghani Khan (son of Sajeed Khan) had concluded in their favor. During cross-examination, he was questioned about the partition deed dated 20- 10-1998, he clarified that the related civil suit had been decreed in their favor up to the Supreme Court.

He further stated that the objection petition filed by the Qazian in the case against Ghani Khan had been dismissed by the Assistant Collector. He admitted transferring only his own share of property to Inam Ullah Khan under the agreement and acknowledged he had no authority to transfer anyone else's share.

He also conceded that the objection petition was decided in favor of the objectors, and the land was demarcated between them and Ghani Khan through a deed dated 13-03-1989. Noor Muhammad further admitted that neither the respondent, Habib-ur- Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

Rahman, nor the Qazian were party to the suit Ex- PW-1/1 or related cases. The complainant’s testimony suggests dispossession, though no time of occurrence was mentioned in the complaint.

12.Record also shows that all prosecution witnesses in their statements have deposed qua factum of ownership and possession of complainant- party, however, they have totally forgotten that along with ownership and possession they were also bound to prove the offence of dispossession against appellant then accused within the meaning of section 3 of Act 2005, therefore, throughout their Court statements and cross-examinations they remained stick to a single point that present appellant was having no nexus with property in dispute and in-fact it was ownership of complainants, but they have miserably failed to bring home criminal charge/liability against present appellant. On the face of such evidence, learned trial Court has rightly acquitted the appellant from the charge of his criminal liability.

13.In view of discussion and exposition of law, instant criminal appeal bearing No. 36-M of Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

2024 is partially allowed, impugned judgment of learned trial Court dated 18.01.2024, to the extent of findings rendered in Para 21 of the judgment qua restoration of possession of the disputed property to the respondents/complainants, are set aside, whereas rest of the impugned judgment to the extent of acquittal of appellant shall remain intact. Needless to highlight, respondents/complainants would be at liberty to approach the appropriate forum for redressal of their grievance of Title/ownership dispute qua the property-in-question, if so advised.

14.Likewise, connected criminal appeal bearing No. 47-M of 2024 preferred by appellants/ complainants against acquittal of respondent namely Habib-ur-Rehman also stands dismissed.

Announced Dt.04.6.2025

Sd/-

JUDGE

Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din