Idrees Khan Versus SHO, PS Norang, Lakki Marwat

Abdul Fayaz, J .--- The instant criminal appeal is directed against the judgment dated 28.11.2024 passed by the learned Additional Sessions Judge-IV, Lakki Marwat, whereby, the complaint under sections 3 and 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 Nos. 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 of the said property. It was further asserted that the signatures 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 property, 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 learned trial Court deemed it appropriate to refer the matter to the local police for inquiry. Pursuant thereto, the police conducted the requisite probe and submitted their report before the Court. Upon receipt of the said report, the learned trial Court heard the learned 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 the available record scanned carefully.

5.At the very outset, it may be observed that the instant appeal has been preferred by the complainant under Section 417(2) Cr.P.C, assailing the order of non-maintainability passed by the learned trial Court. However, the right of appeal under Section 417(2) Cr.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 417(2-A) Cr.P.C. In the present case, the impugned order has been challenged under the provisions of the Illegal 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 XXVIII of 2017, which provides such remedy only against an order passed under 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 435/439 Cr.P.C. can be invoked.

7.Since the right of appeal under Sections 417(2) 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 alternative 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 learned 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 learned 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, therefore, suffers from material irregularity and legal infirmity, warranting interference by this Court.

9.In the case of Shaikh Muhammad Naseem v. Mst. Farida Gul [2016 SCMR 1931], 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 property. In the Supra case, the relevant portion of the judgment is reproduced as:-

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 then seek to thwart the criminal proceedings initiated against him under the Illegal Dispossession Act, 2005 on the pretext that civil litigation on the issue is pending adjudication between the parties in a court of law. Therefore, irrespective of any civil litigation that may be pending in any Court, where an offence, as described in the Illegal Dispossession Act, 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 impugned order dated 28.11.2024, passed by the learned trial 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 of hearing 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 of trial, Parties shall appear before the trial court on 20.10.2025 .

JK/49/P Petition allowed.