Asad Ullah Malik Versus Malik Basharat Ullah

Sadiq Ali, J .--- Through the instant criminal appeal, the appellant/complainant has called in question the order dated 27.02.2023 passed by learned Additional Sessions Judge-II, Haripur, whereby his complaint filed under Section 3 of the Illegal Dispossession Act, 2005 was dismissed, being not maintainable.

2.Briefly stated facts of the case are that the complainant, instituted the complaint under Section 3 of the Illegal Dispossession Act, 2005 against the accused/respondents, and others. His grievance is that he, along with the accused/respondents, is a co-owner in Khasra No. 1068, measuring 1 Kanal 2 Marla, wherein the complainant claims to be owner in possession of approximately 3 Marla. According to him, he had been in settled possession of the said portion since long, utilizing it for construction purposes, and had placed his construction material, including sarya (iron rods), upon the plot. It is alleged that on 21.12.2022, when the complainant went to the market to procure additional construction material, the accused/respondents Nos. 1 to 3, who reside in close proximity to the disputed property, in connivance with respondents Nos. 4 to 7, forcibly entered upon his portion of the property during the afternoon hours. They allegedly removed his sarya from the plot, unlawfully occupied the same, and locked it, thereby depriving him of possession. The incident was allegedly witnessed by Habibullah and Muhammad Hanif, who, according to the complainant, can testify to the occurrence. On the basis of these assertions, the complainant contends that the accused/respondents have unlawfully dispossessed him from his lawful possession of the suit property, thus constituting an offence within the purview of Section 3 of the Illegal Dispossession Act, 2005.

3.After recording statement of the appellant under Section 200 Cr.P.C, learned trial Court marked the complaint to concerned SHO for inquiry/ investigation and in pursuance thereof, the report was submitted. Thereafter the learned trial Court vide impugned order dated 27.02.2023 dismissed the complaint being not maintainable.

4.I have heard arguments of learned counsel for the parties and gone through the record with their valuable assistance.

5.Perusal of the record transpires that the appellant had indeed filed a complaint under Section 3 of the Illegal Dispossession Act, 2005 against the respondents, asserting that he had been unlawfully and forcibly dispossessed from the suffers disputed property by them. However, upon a careful scrutiny of the material available on record, it becomes evident that the complaint from serious infirmities. Most significantly, the complainant has remained vague and ambiguous with respect to the essential particulars of the alleged occurrence. Neither the exact date, time, nor the precise place of the alleged dispossession has been specifically pleaded or established. This lack of clarity strikes at the very root of the complaint, as allegations of illegal dispossession require a categorical and unambiguous assertion of facts so as to constitute a cognizable offence under the statute. The absence of such foundational details renders the narrative of the complainant doubtful and raises serious questions regarding the veracity and sustainability of the claim advanced against the respondents.

6.Further for the purposes of determination so as to appreciate as to whether case has been made out attracting the provisions of Section 3 of the Illegal Dispossession Act, 2005, the Court is required to examine, firstly that the property was immovable property, secondly that the person was the owner of the property or same was in his lawful possession, thirdly that the accused entered into or upon the property unlawfully and fourthly that such entry was with the intention to dispossess.

7.Furthermore, initially, both parties instituted complaints in the concerned police station against each other. However, upon scrutiny, it is observed that the application filed by the appellant is vague and suffers from serious ambiguities. It does not disclose with certainty the particulars of the alleged offence, nor does it narrate in detail the nature of the criminal act said to have been committed. The appellant's application, instead of setting out clear and specific allegations, is couched in general and sweeping terms, thereby failing to provide the essential ingredients of a cognizable offence. In criminal law, it is a settled principle that allegations must be precise, specific, and supported by definite facts, for only then can the Court examine the culpability of the accused and determine whether a prima facie case is made out. The absence of such necessary details not only renders the application legally deficient but also creates a serious impediment in affording the accused an opportunity of fair defence. Consequently, the vague and ambiguous nature of the appellant's complaint deprives it of any evidentiary value and undermines its very foundation in the eyes of law.

8.In addition, civil proceedings in shape of suit for partition is pending adjudication, which culminated in the passing of a preliminary decree. Presently, the proceedings for preparation of the final decree are pending adjudication before the learned Civil Judge-I, Haripur. It further transpires from the record that the property in dispute is a joint holding, and the complainant is seeking separation of his share from the joint property through the said proceedings. Since the suit has already been preliminarily decreed, the matter is at the stage of final decree, wherein the respective shares of the parties are yet to be demarcated and separated. In these circumstances, it is evident that the partition proceedings are in their final stage and the actual possession of the respective parties over the suit property has not yet been conclusively determined. Until and unless the final decree is prepared and the shares of the parties are physically separated, the question of exclusive possession by any one party cannot legally arise. Thus, when the share and possession of the appellant in the suit property indeterminate, the maintainability of the complaint, alleging illegal dispossession from a remain specific portion of the joint property, becomes highly questionable.

9.Moreover, the police report placed on record is also conspicuously silent with regard to any act of forcible or unlawful dispossession of the complainant. At best, the complainant is a co-sharer in the joint property, and it is a settled principle of law that one co-sharer cannot claim exclusive possession against another co-sharer unless and until the property is formally partitioned through due process of law. Therefore, in the absence of a final decree of partition and in light of the silence of the police report on the allegation of illegal dispossession, the complaint appears to be misconceived, premature, and unsustainable in law.

10.In view of what has been discussed hereinabove, no case for illegal dispossession could be made out on the basis of the available record, therefore, the learned trial court has rightly dismissed the complaint vide impugned order, to which no exception could be taken by this court. Resultantly, the instant appeal, having no merit and substance, stands dismissed.

JK/132/P Appeal dismissed.