Idrees Khan Vs SHO Police Station, Norang Lakki Marwat etc.

JUDGMENT SHEET

IN THE PESHAWARIIIGII COI,IRT,

BATINUBENCII

(Judicial Departnent)

Cr.A (SPLA) No. 03-8/2025

Idrees Khan.

Versus orang, Lakki Marwat etc.

Date of hearing: 09.10.2025.

For appellant: Mr. Arshad Hussain Yousafzai, advocate (Via video link).

For respondents: Mr. Humayun Khan Wazir, advocate (via video link).

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l. The instant criminal appeal is dilected against the judgment dated 28.11.2024 passed by the leamed Additional Sessions Judge-IV, Lakki Marwat, whereby, the complaint under sections 3

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& 4 of the Illegal Dispossession Act, 2005, filed by the petitioner was dismissed.

2.The concise facts giving rise to the filing of the instant criminal appeal are that the complainant, Idrees Khan (hereinafter referred to as the appellant), instituted a complaint under Sections 3 and 4 of the Illegal Dispossession Act,

2005, against the respondents. It was alleged that the appellant is the lawful owner and in possession of land measuring 85 Kanals, inherited from his deceased father, as fully described in the title of the complaint. The grievance of the appellant is that upon his return to Pakistan from the Kingdom of Saudi Arabia on 27.04.2024, he was shocked to discover that respondents No.2 and 3, in collusion with respondent No.4, had unlawfully occupied his property on the basis of forged and fabricated agreements dated 18.01.2022 and 20.01'2022, purporting to evidence a sale ofthe said properly.

It was further asserted that the sigrratures appearing on the alleged agreements are fictitious, as the appellant was abroad at the relevant time.

The appellant thus contended that the respondents, through deceit and fraud, have illegally dispossessed him from his lawful properfy, and sought restoration of possession along with penal consequences against them in accordance with law.

3.After recording the preliminary statement of the complainant under Section 200, Cr.P.C, the leamed trial Court deemed it to refer

the matter to the local police for inquiry. Pursuant thereto, the police conducted the requisite probe and submitted tleir report before the Court. Upon receip of the said report, the leamed trial Court heard the leamed counsel for the parties on the question of maintainability of the complaint, so as to determine whether the same was competent in law to proceed further.

4.Learned counsel for the parties have been heard and tlre available record scanned carefully.

5.At the very outset, it may be observed that the instant appeal has been preferred by the under Section 4l7Q) Cr.P.C, assailing the order of non-maintainability passed by the leamed tial Court. However, the right of appeal under Section 417(2) Cn.P.C' is conferred exclusively upon the Provincial Government, whereas a private complainant's right to assail an acquittal order is specifically provided under Section 4l7Q-A) Cr.P.C. In the present case, the impugned order has been challenged under the provisions of the lllegal Dispossession Act, 2005;

therefore, the appeal does not competently lie

either under Section 417(2) or Section 417(2-A) Cr.P.C.

6.It is further pertinent to note that the right of appeal under the Illegal Dispossession Act, 2005 was introduced through Section 8-A, inserted by the amendment Act )O(V[ of 2017, which provides such remedy only against an order passed trnder Section 3 of the said Act. Hence, the pivotal question arises as to whether the present appeal is to be treated under Section 417(2), or 417(2-A), Cr.P.C, read with Section 8-A of the Illegal Dispossession Act, 2005, or whether the revisional jurisdiction of this Court under Sections 4351439 Cr.P.C. can be invoked.

7.Since the right of appeal under Sections afiQ) and 417(2-A) Cr.P.C, pertains respectively to the Provincial Government and a private complainant, and Section 8-A of the Illegal Dispossession Act, 2005 provides an appellate remedy only against an order of conviction, while the revisional jurisdiction also stands excluded as no such remedy is envisaged under the said Act, we are left with no other efficacious altemative except to treat and convert the present appeal into

a petition under the writ jurisdiction of this Court.

Accordingly, the present criminal appeal is hereby converted into a writ petition.

8.After careful appraisal of the record, it is evident that the leamed trial Court dismissed the complaint primarily on the basis of the inquiry report submitted by the local police, without conducting an independent examination of the available material or recording any evidence to substantiate the rival claims. The object of the Illegal Dispossession Act, 2005, being to safeguard lawful owners and occupiers from unlawful deprivation of possession, necessitates a cautious and judicious scrutiny of allegations before arriving at any conclusion. The leamed trial Court appears to have prematurely dismissed the complaint under Section 203, Cr.P.C, without affording the complainant an opportunity to substantiate his version through evidence, thereby occasioning miscarriage of justice. The report of the police was merely of recommendatory nature and could not substitute judicial determination.

The impugned order, tlerefore, suffers from

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material irregularity and legal infirmity, warranting interference by this Court.

9.In the case of Shaikh Muhammad Naseem v. MsL Farida Gul 12016 SCMR 193U, the Hon'ble Supreme Court dealt with a situation where in the complaint under the Illegal Dispossession Act,2005, had been dismissed by the learned trial court merely on the point of maintainability. The apex Court disapproved such an approach, holding that the question of maintainability cannot be decided in isolation or at a preliminary stage without first examining, whether the complaint discloses a prima facie case of illegal dispossession. It was further observed that the existence of a civil dispute or pending civil proceedings does not, by itself, oust the jurisdiction of the criminal court under the said Act. The Supreme Court thus remanded the matter for a decision on merits, emphasizing that the remedial scope of the Act must not be curtailed by a technical interpretation, as its object is to provide immediate and effective redress to lawful owners or occupiers unlawfully dispossessed of their

n property. In the Supra case, the relevant portion of the judgment is reproduced as:-

"7. From what has been discussed above it is evident that no provision of the Illegal Dispossession Act, 2005 imposes any precondition on the basis of which a particular class of offenders could only be prosecuted. The Act aims at granting effrcacious relief to lawful owners and occupiers in case they are dispossessed by anyone without lawful authority. Section 3(l) of the said Act by using the terms 'anyone' and 'whoever' for the offenders clearly warns all persons from committing the offence described therein and when found guilty by the court are to be punished without attaching any condition whatsoever as to the maintainability of the complaint. So all that the Court has to see is whether the accused nominated in the complaint has entered into or upon the property in dispute in order to dispossess, grab, control, or occupy it without any lawful authority. Nothing else is required to be established by the complainant as no precondition has been attached under any provision of the said Act which conveys the command of the legislature that only such accused would be prosecuted who holds the credentials and antecedents of 'land grabbers' or 'Qabza Group'. It does not appeal to reason that for commission of an offence reported it the complaint filed under the Illegal Dispossession Act, 2005 the Legislature would intent to punish only those who hold history of committing a particular kind of offence but would let go an accused who though has committed the offence reported in the complaint but does not hold the record of committing a particular kind of offence. In our view trial of a case is to be relatable to the property which is subject matter of the complainant, pure and simple. Any past history of the accused with regard to his act of dispossession having no nexus with the complaint cannot be taken into consideration in order to decide whether the accused stands qualified to be awarded a sentence under the Act or not. Once the offence reported in the complaint stands proved against the accused then he cannot escape punishment under the Illegal Dispossession Act, 2005."

10.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

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then seek to thwart the criminal

initiated against him under the Illegal Dispossession Act, 2005 on the pretext that civil titigation on the issue is pending adjudication between the parties in a court of law. Therefore, of any civil litigation that maY be pending in any Court, where an offence, as described in the Illegal Dispossession Ac! 2005, has been committed, the proceedings under the said Act can be initiated as the same would be maintainable in law.

11.For the foregoing reasons, this petition is accepted, the impugred order dated 28.11.2024, passed by the leamed tial Court is set aside, and the case is remanded to the trial Court with direction to decide the complaint afresh, strictly in accordance with law, after providing fair opportunity ofhearing and evidence to both sides.

It is, however, clarified that any observation made hereinabove shall not prejudice the case of either party during the course oftrial. Parties shall appear before the trial court on 20.10.2025.

tlrnrEnullah PS*

JADGE

(S.B) Hon'ble Mr.Jwtice AbM FcYaz o

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