Malik Muhammad Saeed etc. vs Lal Khan etc.

Stereo. H C J D A 38.

JUDGMENT SHEET

LAHORE HIGH COURT,

RAWALPINDI BENCH, RAWALPINDI

JUDICIAL DEPARTMENT

Crl. A. No.1169 of 2025

Malik Muhammad Saeed & another Vs.

Lal Khan, etc.

JUDGMENT

Date of Hearing 04.02.2026.

Appellant By: Khalid Mehmood Shahzaib Awan & Ms. Talat Nisar, Advocates.

Respondent By: Ch. Amjad Hassan Ali & Ch. Afrasiab Khan, Advocates with respondent No.1.

State By: Mr. Naeem Akbar, Deputy Prosecutor General.

TARIQ MEHMOOD BAJWA, J. The appellants–complainants (hereinafter referred to as “the appellants”) have called in question the vires of the judgment dated 13.06.2025, rendered by the learned Additional Sessions Judge, whereby respondent No.1–accused (hereinafter referred to as “the respondent”) was acquitted of the charge under Sections 3 and 4 of the Illegal Dispossession Act, 2005.

2.Briefly stated, the appellants instituted a private complaint under Sections 3 and 4 of the Illegal Dispossession Act, 2005 against the respondent, asserting that they are the lawful owners of land measuring 86 Kanals comprised in Khatooni No. 211, Khewat No. 45/43, Khasra No. 186, situated in Mauza Bajal, Tehsil Fateh Jang. The respondent was allegedly inducted as a tenant but defaulted in payment of produce and rent. Consequently, the appellants filed an ejectment petition before the Tehsildar/Assistant Collector. The respondent failed to appear and was proceeded against ex parte. Vide order dated 22.02.2023, the ejectment petition was allowed in favour of the appellants, and a warrant of possession was issued. On 19.08.2023, pursuant to revenue proceedings, physical possession of the land was purportedly delivered to the appellants. It is

alleged that on the very next day, the respondent illegally dispossessed them, compelling the filing of the present complaint.

3.After recording cursory statements, obtaining relevant documents, and calling for a police report under Section 5 of the Act, the learned trial Court summoned the respondent. Upon compliance with Section 265-C Cr.P.C., charge was framed, to which the respondent pleaded not guilty and claimed trial. The appellants led oral and documentary evidence in support of their case. The respondent, in his statement under Section 342 Cr.P.C., denied the allegations and claimed false implication. After hearing arguments and appraising the entire evidence, the learned trial Court dismissed the complaint and acquitted the respondent. Feeling dismayed the appellants filed the instant appeal.

4.Learned counsel for the appellants contended that ownership of the property and delivery of possession through lawful process are undisputed. Referring to Section 3(1) of the Act, he argued that the law aims to prevent illegal dispossession of lawful owners. According to him, the respondent, in defiance of the revenue order, unlawfully re-entered and dispossessed the appellants. It was emphasized that both the revenue proceedings and the police report under Section 5 supported the appellants’ stance, and that cogent oral and documentary evidence established delivery of possession. The learned trial Court, it was argued, failed to properly appreciate this evidence.

5.Conversely, learned counsel for the respondent and the learned Law Officer supported the impugned acquittal. It was argued that the warrant of possession did not reflect the presence of the private witnesses produced by the appellants—namely Abid Ali, Rab Nawaz, and Shah Nawaz. Neither the revenue official who conducted the proceedings nor any independent villager was examined to establish actual delivery of physical possession. It was further submitted that documentary delivery of possession and actual physical possession at the spot are distinct matters. Material contradictions were highlighted in the testimonies of the prosecution witnesses, particularly regarding the timing and manner of possession—whether taken by ploughing the field with a tractor or by installing boundary marks (Burjis). Additionally, it was pointed out that a murder had occurred at the disputed

property during the relevant period, rendering it improbable that possession proceedings were completed in such hostile circumstances.

6.Arguments heard. Record perused.

7.The appellants are owners of the disputed property and that the respondent was in possession ostensibly as a tenant. It is also uncontroverted that the ejectment petition was decreed ex parte and a warrant of possession was issued. The pivotal controversy, however, revolves around whether physical possession was in fact delivered to the appellants at the spot. The appellants examined three private witnesses, none of whom were shown to be present in the warrant of possession proceedings in the relevant record. Their statements suffer from material contradictions regarding the mode and timing of delivery of possession. Notably, the revenue officer/official who executed the warrant was not produced as a witness. Furthermore, it surfaced during arguments that a murder had taken place at the property during the relevant period. In such grave and volatile circumstances, it is difficult to accept that possession proceedings were concluded smoothly and conclusively.

The police report obtained under Section 5 of the Act, rather than advancing the complainants’ case, reflected the respondent’s physical possession over the disputed property and thus provided little support to the prosecution.

Crl. A. No. 1169 of 2025 4

Better copy ملک سعید بنام لعل خان ولد گالب خان 3/4 استغا ثہ زیر دفعہ جناب عالی ۔

گزارش ہے کہ استغاثہ ہذا عنوان باال موصول ہونے پرموقع رپورٹ محکمہ مال بھی حاصل کی گئی ہے دوران مالحظہ، کیاگیا186 مالحظہ اراضی خسرہ نمبر 0 کنال55 تعدادی45 کھیوٹ نمبر186 موقع و بمطابق رپورٹ محکمہ مال پایا گیا کہ خسرہ نمبر مرلہ ملک محمد سعید ولد یار محمد خان کی ملکیت ہے بحوالہ رپورٹ دخل بحق ملک سعید وغیرہ زیر قبضہ لعل خان186 دلوایا گیا جبکہ بروئے موقع سردست نمبر خسرہ19۔08۔23 ڈگری داران ولد گالب خان ہے مناسب حکم صادر فرمایا جاے۔

رپورٹ مرتب ہو کر ارسال خدمت ہے۔

ASI شفقت علی خان۔

تھانہ فتح جنگ۔

8.Learned counsel for the appellants also submitted while referring Section 3(1) of the Act, that the possession of the owner was to be prevented. In order to appreciate said contention, it would be apt to have a fresh glance on the relevant provision which reads as under:-

Section 3 (1) of the Illegal Dispossession Act, 2005. “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.”

A plain reading of the above provision indicates that it contemplates prevention of unlawful dispossession of an owner or occupier who is in actual physical possession. The statutory scheme presupposes prior possession of the complainant. In the absence of credible proof that the appellants were in actual physical possession after execution of the warrant, the essential ingredient of the offence remains unestablished. For making a case under Illegal Dispossession Act, 2005, one should come forward with a positive evidence of his lawful ownership with possession or a lawful possession in any other capacity and then his unlawful and illegal dispossession from the property. The appellants’ argument, therefore, runs contrary to the scheme/words of the said section.

9.From another angle, the contention advanced by learned counsel of the appellants is self-contradictory. If the position were as asserted, there would have been no occasion to institute ejectment proceedings before the Revenue Court. The very recourse to that forum affirms that the law provides a specific remedy for recovery of possession of agricultural land through ejectment of a tenant. It is pertinent to observe that the appellants had obtained an ex-parte

order of ejectment from the learned revenue Court. Armed with said order, they sought to secure possession through the revenue authorities; however, the attempt remained unsuccessful, as is evident from the material produced in the complaint. In these circumstances, the filing of the present complaint was misconceived, particularly when the appellants failed to establish that actual physical possession had ever been delivered to them. No cavil to the legal proposition when nothing was provided to be done in a particular manner, it had to be done in that manner, and if not so done it would not be lawful.

10.Upon careful examination of the record, no misreading or non-reading of evidence has been demonstrated. The appellants’ case is fraught with material discrepancies sufficient to create reasonable doubt. It is trite law that even a single circumstance giving rise to doubt entitles an accused to the benefit thereof. Reliance may be placed upon “Muhammad Zaman vs. The State and Others”(2014 SCMR 749) and “Muhammad Riaz and others v. The State and others” (2024 SCMR 1839). It is equally well-settled that an acquitted accused enjoys a double presumption of innocence, and the burden to rebut the same lies heavily upon the prosecution—a burden not discharged in the present case. Reference may be made to “Muhammad Shafi vs. Muhammad Raza and another” (2008 SCMR 329).

11.In view of the foregoing, no infirmity, illegality, arbitrariness, or perversity has been shown in the judgment of acquittal warranting interference by this Court. Guided by the principles enunciated by the Honourable Supreme Court of Pakistan in “Jahangir v. Aminullah and others” (2010 SCMR 491), the instant appeal is devoid of merit and is hereby dismissed.

(Tariq Mahmood Bajwa) Judge

APPROVED FOR REPORTING

JUDGE

رفعت