Muhammad Javed Sadiq and others Vs Husnain Shah and others

Judgment Sheet

IN THE PESHAWAR HIGH COURT, ABBOTTABAD

BENCH

JUDICIAL DEPARTMENT

Cr.Appeal No. 144-A/2026 (Converted to WP No. ______-A/2026)

JUDGMENT

Date of hearing...................05.10.2026........................

Appellant (Muhammad Javed Sadiq and others) By Mr. Azam Shahzad Tanoli, Advocate.

The respondents (Husnain Shah and others) By Mr. Aqeel Sarwar Tanoli, Advocate.

ABDUL FAYAZ, J.- Through this single judgment, I intend to decide instant criminal appeal (converted into writ petition) as well as connected Criminal Revision No.44-A of 2026, (also converted to writ petition) titled “Husnain Shah etc. Vs. Muhammad Javed etc.”, as both these matters emanate from one and the same judgment dated 30.06.2026, passed by the learned Additional Sessions Judge-VII, Mansehra, whereby complaint under the Illegal Dispossession Act, 2005 was dismissed and the

accused/respondents were acquitted of the charge;

however, while recalling the earlier interim order dated 06.10.2025, the disputed house was ordered to be taken into custody by the local police and

retained as such till final adjudication of the civil litigation between the parties.

2.At the very outset, it is pertinent to mention that the instant criminal appeal has been preferred against the acquittal of the respondents in proceedings under the Illegal Dispossession Act, 2005, whereas the connected criminal revision petition calls in question that part of the impugned judgment whereby the disputed property was ordered to be taken into police custody. A perusal of Section 8 of the Illegal Dispossession Act, 2005 reveals that although the legislature has provided a statutory remedy of appeal against conviction, no corresponding remedy against acquittal has been expressly provided under the said provision. Similarly, the Act does not provide any remedy of criminal revision against an order of the nature impugned in the connected matter. Thus, in the absence of the aforesaid statutory remedies, and keeping in view the nature of the controversy and the relief sought by the respective parties, this Court deems it appropriate to treat both matters as separate writ petitions under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. Guidance

in this regard is drawn from the judgment of the august Supreme Court reported as 2017 SCMR 56.

Accordingly, the office is directed to convert the instant criminal appeal as well as the connected criminal revision petition into separate writ petitions, assign appropriate numbers thereto and make necessary entries in the relevant registers.

Both petitions shall be decided through this common judgment in accordance with law.

3.Brief facts giving rise to the instant matters are that petitioners Muhammad Javed Sadiq and Muhammad Shafqat Sadiq instituted a complaint under section 3 of the Illegal Dispossession Act, 2005 against respondents/ accused Husnain Shah, Mst. Rashida Bibi and Mst. Nazakat Bibi, alleging that the complainants were owners and in possession of land bearing Khasra No.3003 measuring 01 Kanal 17 Marlas and Khasra No.3002 measuring 14 Marlas, situated at Mouza Mansehra, wherein they had constructed a room/house. It was alleged that on 11.07.2024, the respondents forcibly entered the said house/room and occupied the same. An altercation also allegedly took place at the spot

and in respect thereof FIR No. 643 dated 12.07.2024 under sections 337-A(i)/34 PPC was registered at Police Station City, Mansehra.

4.The petitioners/complainants, feeling aggrieved of their alleged forcible dispossession from the disputed house/property, instituted a complaint under section 3 of the Illegal Dispossession Act, 2005 before the learned Sessions Judge, Mansehra, which was subsequently entrusted to the learned Additional Sessions Judge-VII, Mansehra for trial and disposal in accordance with law. The learned trial Court, after obtaining the requisite inquiry report and completing the preliminary proceedings, proceeded with the complaint and summoned the accused. During pendency of the proceedings, the petitioners/complainants also moved an application under section 7 of the Illegal Dispossession Act, 2005, seeking restoration of interim possession of the disputed house/property.

Vide order dated 06.10.2025, the learned trial Court allowed the said application and directed restoration of possession to the petitioners/ complainants through Bailiff with the assistance of local police, subject, however, to final

adjudication of the complaint. It was specifically observed that in case the petitioners/complainants failed to establish their lawful ownership, prior possession or dispossession at the hands of the accused, the possession so restored would revert to the respondents. The said interim order was challenged before this Court through W.P.

No.1344-A/2025, which was dismissed vide judgment dated 30.03.2026, with a direction to the learned trial Court to finally decide the complaint within three months.

5.Thereafter, the learned trial Court proceeded with the trial. The

petitioners/complainants produced their oral as well as documentary evidence in support of the allegations, including revenue record, documents pertaining to their alleged ownership and possession, previous civil proceedings and evidence relating to the occurrence. After conclusion of the complainants' evidence, statements of the accused were recorded under section 342 Cr.P.C., wherein they denied the allegations and maintained their own claim regarding possession of the disputed property. On conclusion of the trial, the learned Additional

Sessions Judge-VII, Mansehra, vide judgment dated 30.06.2026 dismissed the complaint and acquitted the accused; however, while recalling the interim order dated 06.10.2025, directed the concerned police to take the disputed house into protective custody and retain the same till final adjudication of the civil litigation between the parties. Feeling aggrieved from the said order, the petitioners/complainants have filed the instant petition seeking reversal of the acquittal and conviction of the respondents, whereas the acquitted accused have filed the connected petition to the extent of the direction whereby the disputed property has been ordered to remain sealed/in police custody despite dismissal of the complaint and their acquittal.

6.Arguments heard and record perused.

7.First coming to the instant petition, whereby the petitioners/complainants have called in question the acquittal of the respondents, the record reveals that the basic allegation against the respondents was that the petitioners/complainants were in possession of the disputed house/property and were forcibly dispossessed therefrom on 11.07.2024. Thus, in order to succeed in the

complaint under the Illegal Dispossession Act, 2005, it was incumbent upon the complainants to establish through reliable and confidence-inspiring evidence their possession over the particular house immediately before the alleged occurrence and their subsequent unlawful dispossession therefrom at the hands of the respondents.

8.In order to prove their case, the petitioners/complainants produced oral as well as documentary evidence, including the revenue record, Iqrar Nama and other documents pertaining to their claim over the property.

However, the revenue record relied upon by them pertains to the relevant Khasra numbers wherein other co-sharers also exist, while no proper demarcation was carried out to establish that the particular house forming subject matter of the complaint exclusively fell within the portion claimed to be in possession of the complainants.

The documentary evidence relating to ownership, therefore, could not by itself establish their actual and exclusive possession over the disputed house immediately before the alleged occurrence.

9.The oral evidence produced by the complainants also does not satisfactorily establish

the factum and manner of the alleged dispossession. The material available on record reflects a pre-existing dispute between the parties regarding the property and does not furnish a clear and confidence-inspiring account that the complainants were in settled possession of the particular house and were thereafter forcibly dispossessed therefrom by the respondents in the manner alleged. Mere assertion of ownership or reliance upon revenue entries could not substitute the requirement of proving actual possession followed by unlawful dispossession.

10.It is also evident from the record that both sides assert their respective rights in the disputed property and civil litigation concerning the same is pending between them. No doubt, mere pendency of civil litigation would not exclude criminal liability where the ingredients of an offence under the Illegal Dispossession Act, 2005 are otherwise proved; however, in the present case, the complainants failed to establish the essential fact of their settled possession over the disputed house followed by forcible dispossession at the hands of the respondents. The learned trial Court, therefore, committed no

illegality in extending benefit of doubt to the respondents and acquitting them of the charge.

11.Even otherwise, the respondents having earned acquittal from the learned trial Court enjoy a double presumption of innocence. It is a settled principle of criminal administration of justice that once an accused is acquitted of the charge, the initial presumption of innocence stands reinforced and such presumption cannot lightly be displaced in an appeal against acquittal. Where two views of the evidence are reasonably possible, the view favourable to the accused is to prevail and interference with an acquittal is warranted only where the findings are shown to be arbitrary, capricious, perverse or the result of material misreading or non-reading of evidence. Guidance in this regard may advantageously be drawn from “Sajawal Khan and others v. Amir Sultan and others” (2016 P Cr. L J 929 [Lahore]), wherein, while dealing with proceedings under the Illegal Dispossession Act, 2005, the acquittal was maintained by applying the principle of double presumption of innocence. Reliance may also be placed upon “Ghulam Sikandar and another v.

Mamaraz Khan and others” (PLD 1985 SC 11).

In the present case, no illegality, perversity or material misreading or non-reading of evidence is discernible in the impugned judgment warranting interference with the acquittal of the respondents.

12.Now coming to the connected petition, the grievance of the petitioners is confined to that part of the impugned judgment whereby, despite dismissal of the complaint and their acquittal, the learned trial Court directed that the disputed house/property be taken into custody by the local police and retained as such till final adjudication of the civil litigation between the parties. The legality of this direction is, therefore, required to be examined independently of the acquittal recorded in the case.

13.The record reveals that possession of the disputed house was taken from the petitioners and handed over to the complainants only pursuant to the interim order dated 06.10.2025, passed during pendency of the complaint. The said arrangement was provisional in nature and expressly subject to the final outcome of the proceedings. It was further stipulated in the said order that in case the complainants failed to prove their lawful ownership, prior possession or dispossession at the

hands of the respondents, the possession so restored would revert to the respondents. Thus, the complainants' possession pursuant to the said order was neither independent nor absolute, rather it remained dependent upon the ultimate result of the complaint.

14.Once, after recording the entire evidence, the complaint was dismissed and the petitioners were acquitted of the allegations of illegal dispossession, the very foundation upon which possession had temporarily been delivered to the complainants ceased to exist. The learned trial Court rightly recalled the interim order dated 06.10.2025; however, after recalling the same, there was no lawful justification for creating another arrangement by directing that the disputed house be sealed and retained in custody of the local police till determination of the civil litigation.

15.The criminal proceedings had culminated in acquittal and, therefore, continued retention of the disputed house in police custody could not be made dependent upon the outcome of separate civil proceedings. The civil litigation between the parties is an independent matter wherein both

sides are at liberty to establish their respective rights, title and possession and seek such interim or final relief as may be available to them under law. The pendency of such proceedings could not furnish a lawful basis for the criminal Court to indefinitely retain the disputed property under seal or in police custody after termination of the proceedings before it.

16.Since possession of the disputed house had admittedly been taken from the petitioners through the process of the Court pursuant to the interim order dated 06.10.2025, the necessary consequence of dismissal of the complaint and recall of the said interim order is to restore possession to the persons from whom it had been taken. Such restoration merely restores the position existing prior to execution of the interim order and shall not amount to a declaration of ownership, title or any other civil right in favour of the petitioners.

17.In light of what has been discussed above, the instant petition, filed by the petitioners/complainants against the acquittal of the respondents, is found to be devoid of merit and is, accordingly, dismissed. However, the

connected petition is allowed. Consequently, the impugned judgment dated 30.06.2026 is modified to the extent that the direction whereby the disputed house/property was ordered to remain sealed and in the custody of the local police till final adjudication of the civil litigation is hereby set aside. The possession of the disputed house/property shall be restored to the petitioners in the connected petition, from whom it was taken pursuant to the interim order dated 06.10.2025. It is, however, clarified that restoration of possession shall not prejudice the respective rights and claims of the parties in the pending civil litigation, which shall be decided by the competent Court independently, on its own merits and strictly in accordance with law.

Announced:

JUDGE

Shahid*/