Hafiz MUHAMMAD SIDDIQUE Versus State

ORDER

ALI BAQAR NAJAFI, J.--- The petitioner seeks indulgence of this court against the orders passed by Lahore High Court dated 16.10.2015, and the order passed by Additional Sessions Judge dated 18.10.2011 whereby the private complaint filed by the petitioner under Section 3 of the Illegal Dispossession Act 2005 was concurrently dismissed on the grounds that the ownership of the property is still in dispute; the unlawful dispossession of the petitioner was not proved; the essential elements for the commission of the offence; i.e. actus rea and mens rea were absent; and that the civil litigation was also remained pending between the parties.

2. In the complaint filed by the petitioner on 13.10.2005 it was categorically admitted by the petitioner in paragraph No.3 that an oral written agreement to sell was made between the parties but the instrument was taken by respondents for attestation by a notary public and was never return. In paragraph No.5 it was also mentioned that in the month of May 2005 the petitioner came to know that the respondents Nos. 1 and 2 were trying to sell out the property to someone else upon which a civil suit was also filed against them in which a restraining order was also issued on 24.05.2005 which suit is pending.

3. In paragraph No. 6 it was, however, mentioned that at the time of dispossession of the petitioner on 28.09.2005 at 02:00 p.m. 5 kilograms of gold approximately was also taken despite their being a restraining order. After recording of the cursory statements of Muhammad Rashid son of Muhammad Aslam, Muhammad Irshad son of Muhammad Aslam, Hafiz Muhammad Sadiq son of Muhammad Hanif and Tariq Javed son of Haji Muhammad Sharif, the respondents were summoned to face trial. The charge was framed and the complainant produced four witnesses and closed the evidence.

4. The trial court summoned Muhammad Haris Sub-Inspector (CW-1) who admitted in cross-examination that the workshop was in possession of the petitioner. The respondent also produced Muhammad Saleem (RW-1) Haji Abdul Hamid (RW-2) Muhammad Akram (RW-3) Ch. Muhammad Ashraf (RW-4) in his defense. The learned trial court dismissed the complaint by observing that the allegation of the robbery was not proved since the valuable articles were lying in the safe custody in lock and key. No evidence was brought on record to indicate that the construction on the first floor of the property was made by the petitioner. The complainant and his witnesses were not found truthful, therefore, they were not relied upon and the complaint was dismissed.

5. The writ petition filed by the petitioner challenging the said order of the trial court was dismissed with additional grounds that oral agreement to sell did not create any right in property and that the civil remedy has been chosen by filing a civil suit and that mere dispossession without mens rea was not sufficient to attract the provisions of the Illegal Dispossession Act, 2005.

6. After hearing the learned counsel for the petitioner, it is straightaway noted that the unlawful dispossession under Section 3 of the Illegal Dispossession Act, 2005 was not proved as every dispossession does not attract the provision of said Act that the ingredients of mens rea and actus rea are essential to be proved under the Act ibid. Besides, selection of civil remedy by making a conscious decision by the petitioner was correct in the facts and circumstances.

In view of this, the petition is dismissed .

UN/M-105/SC Petition dismissed.