SABIT ULLAH KHAN, J:-This single judgment in the instant appeal shall also decide the connected Cr.A No.238-M/2023 titled "Mst. Shazia Riaz Vs. State and others" as both the matters are the outcome of same complain filed by the respondent No.1 namely Mst. Shazia Riaz under sections 3, 4, & 7 of the Illegal Dispossession Act, 2005 (the Act of 2005).
2. Short facts giving rise to both these criminal appeals are that respondent No.1 namely Mst. Shazia Riaz has filed a complaint under the provisions of the Act of 2005 against the present appellants and one Arshad Ali, alleging therein that she is the owner in possession of the disputed house on the basis of a sale deed dated 07.02.1991, as described in Para No.1 of the complaint; that after the death of her mother on 14.12.2019, she along with her children resided in the said house for 4/5 months and upon leaving the same for Abbottabad, she locked the house but when she returned on 16.07.2020 at 21:00 hours, she found that Arshad Ali has broken the locks and illegally occupied two rooms on the southern side two days prior. During the proceedings u/s 145 Cr.P.C, Arshad Ali has produced a forged, bogus, and fictitious document and subsequently on 07.02.2023, the upper portion of the said house was also occupied illegally by appellant No.2 namely Hazrat Said at the instance of the remaining accused. After the submission of report by the local police upon preliminary inquiry, the accused were summoned and were charge-sheeted on 10.03.2023, to which, they did not plead guilty and claimed trial. The respondent/ complainant produced and examined as many as five witnesses, after which, the statements of the accused were recorded u/s 342 Cr.P.C. wherein they claimed innocence, however, neither opted to be examined on oath nor desired to produce evidence in defence.
On the conclusion of the trial and after hearing arguments, the learned trial Court held that the allegation regarding the commission of the offence against the accused is not proved in accordance with law, hence, they were acquitted of the charges, however, it was also held that since the respondent./ complainant was in lawful possession of the house before her dispossession, therefore, the possession shall be restored to her within a period of 15 days vide judgment dated 24.06.2023, hence, these appeals.3. Arguments heard. Record perused.
4. The record would reflect that the respondent/ complainant, in her complaint has not mentioned the exact time and date of the alleged act of dispossession from the disputed house by the accused rather it was merely alleged that after residing in the said house for 4 /5 months following the death of her mother, she had shifted to Abbottabad along with her children and upon her return on 16.07.2020 at 21:00 hours, she discovered that the house has allegedly been illegally occupied by the accused namely Arshad Ali, who has broken the locks. Bacha Nawab (PW 1), who is the father of the complainant as well as the accused Arshad Ali, has admitted during his cross- examination that he was not an eyewitness to the alleged incident of breaking the locks by the accused. He has also stated that he was merely informed about the occurrence by one Irshad; however, he did not mention any specific time or date for the incident. He has further admitted that a complaint had earlier been filed against Arshad Ali before the Sub-Divisional Magistrate, which was dismissed. Moreover, he has acknowledged that one of his daughters namely Mst. Nadia has filed a civil suit for partition in respect of the same disputed house. The complainant Mst. Shazia Riaz (PW-3) has also made significant admissions in her cross-examination. She has acknowledged that her father namely Bacha Nawab (PW-1) had two wives and that she, along with the accused Arshad Ali and Mst. Nadia, were the children of the first wife namely Mst. Zahida Bibi.
She has further admitted in her cross examination that she has not personally witnessed the accused while breaking the locks of the house. Neither any eyewitness of the alleged act of dispossession was produced before the Court by the respondent/ complainant nor any other strong circumstantial evidence is available on record to establish the allegation levelled against the accused in the complaint. It is an established law that for proving the offence of illegal dispossession under sections 3 (3) of the Illegal Dispossession Act, 2005, it is the legal duty of the complainant to bring on record independent and reliable evidence demonstrating that the accused had forcibly taken possession by dispossessing the complainant from the property. The complainant was also required to mention all material particulars regarding the alleged act of illegal dispossession in her complaint, however, the evidence of the requisite standard is obviously missing in this case.
5. It is worth mentioning here that prior to filing the instant complaint, the respondent/ complainant had already filed a complaint uls 145 Cr.P.C., which was dismissed by the learned Assistant Commissioner on 23.11.2022 with directions to approach the civil court for determination of the question of title. The said order was also upheld by the learned Sessions Judge, Malakand at Batkhela vide order dated 07.02.2023 and thereafter, the complainant has filed the present complaint under the provisions of the Illegal Dispossession Act, 2005, which, in the given circumstances, amounts to double jeopardy irrespective of the observation of the learned Sessions Judge because the complainant has failed to provide any legal justification for approaching the wrong forum. It is a settled principle of law that when a thing is required to be done in a particular manner prescribed by law, it must be done in that manner alone and not otherwise. Regarding the applicability of the principle of double jeopardy, reliance is placed on the case of "Muhammad Qaseem and others Vs. Abdul Hameed and another" (2024 PCr.LJ 1575). Therefore, the accused/respondents were rightly acquitted of the charges by the learned trial Court through impugned judgment. In a similar case, the Hon'ble Sindh High Court in the case titled "Manzoor Ali and another Vs. The State and another" (2020 MLD 1138), while dismissing a complaint filed under sections 3 & 4 of the Illegal Dispossession Act, 2005, has held as under: "Prima facie, the complainant never successfully established his forcible or wrongful dispossession which, otherwise, was necessary ingredient to make out offence within the meaning of S.3(3) of the Act. Property in question, was situated in a populated area where forcible dispossession of complainant had happened on gun point. Complainant did not examine any independent person from the mohalla so as to prove his claimed forcible dispossession on a particular date and time. Circumstances established that the complainant had failed in proving the offence within the meaning of S.3(3) of the Act. Appeal was allowed and accused were acquitted by setting aside the conviction and sentence recorded by the Trial Court."
It is also an established principle of law that unless the complainant clearly proves with strong and reliable evidence that the accused has forcibly or unlawfully taken the possession of the property, the offence of illegal dispossession cannot be established. In other words, the mere allegations, without substantiating proof of forcible possession, are not sufficient to constitute the alleged offence. In the case titled "Khadim vs. Barkat and 02 others" (2021 YLR 732, Sindh), the Court, while dismissing an appeal against acquittal in an identical matter, has reiterated that where the date and time of the alleged incident are not clearly mentioned or proved through unimpeachable evidence then the benefit of doubt must be extended to the accused. It was specifically observed that the absence of these material particulars in the complaint or during the trial proceedings undermines the case of the prosecution and thus the accused cannot be convicted merely on vague or generalized allegations. In that judgment, it was held as under: "Complainant had alleged that about three months prior to filing the complaint, accused persons illegally occupied one acre of his land. Record showed that no date and time of the alleged incident was either mentioned in the subject complaint filed under S.3(2) of Illegal Dispossession Act, 2005 or in the evidence of complainant and his witnesses. Even descriptions and boundaries of the subject land measuring 1-0 acres had not been shown in the complaint, which were essential for the identity of the subject area. Complainant had not produced any document to prove that he was owner of the subject land and he ever remained in possession thereof. Appeal against acquittal was dismissed, in circumstances."
6. Adverting to the instant appeal, which has been filed by the accused against the impugned direction of the learned trial Court, whereby they were ordered to vacate the possession of the house within a period of 15 days. The question arises before this Court as to whether, in the given facts and circumstances of the case especially in light of the acquittal of the accused due to failure of the respondent/ complainant to establish the alleged dispossession in the required mode, manner or standard of evidence, the learned trial Court was justified in directing that the possession of the house be restored to the respondent/ complainant. In report dated 21.02.2023 (Ex.PW4/1), the official of Police Post Batkhela has stated that both parties have produced documents regarding ownership of the house. It was specifically reported that Mst. Shaheen (appellant No.1), wife of accused Arshad Ali has claimed that two rooms of the disputed house were given to her as dower. It was also noted that the said portion was in their possession and that the utility bills for electricity and gas were in the name of Arshad Ali. In her complaint, the respondent/ complainant Mst. Shazia Riaz also alleged that, during proceedings u/s 145 Cr.P.C, the accused side produced forged, bogus and fictitious documents to falsely claim ownership. It is noteworthy that the parties are closely related: the complainant Mst. Shazia Riaz and the accused Arshad Ali are real sister and brother. Prima facie, the respondent/ complainant has claimed ownership of the disputed house on the basis of a registered sale deed dated 07.02.1991 (Ex.PW3/7), showing its purchase from one Zahir Shah for a consideration of Rs.60,000/-, however, there also exists a document dated 03.07.2004 (Ex.PW3/9), whereby the complainant allegedly sold the said property to her mother Mst. Zahida. In addition to that, other documents, produced by the parties in support of their respective claims to ownership, were disputed and controverted. These facts give rise to a question of joint ownership, which cannot be conclusively determined in these criminal proceedings. Recently, the Hon'ble Supreme Court of Pakistan, in the case of "Al Hard Malik Muhammad Ashraf vs. Javed Akhtar and another" (2025 SCMR 787), while upholding the acquittal of the accused in a similar matter, has observed that: "Accused was a co-owner in property in question and High Court had acquitted him of the charge. Co-owner is deemed to be in constructive possession of every inch of joint holding unless a formal partition has been effected. Jurisprudence on co-ownership consistently affirms that one co-owner cannot allege dispossession at the hands of another without establishing exclusive possession through partition proceedings. Provision of Illegal Dispossession Act, 2005 is not confined to cases involving land grabbers or Qabza Mafia but extends to any person who has been illegally dispossessed from immovable property, however it is applicable only where there is clear evidence of unlawful dispossession. In cases where parties are co-owners, question of forcible dispossession does not arise unless partition proceedings have concluded and exclusive ownership is established. Acquitted accused enjoys a double presumption of innocence. Appellate Court should exercise restraint in overturning an acquittal unless the judgment is manifestly perverse, arbitrary, or suffers from a glaring misreading or non-reading of material evidence. Supreme Court declined to interfere in judgment of acquittal passed in faovur of accused. Petition for leave to appeal was dismissed and leave to appeal was refused."
More so, it is a well-settled principle of law that the determination of ownership does not fall within the exclusive jurisdiction of the Court under the Illegal Dispossession Act, 2005, as such matters lie solely within the domain of the civil Court, whereby all the questions qua title of the house may be agitated. Even otherwise, in cases such as the present one, for the restoration of possession u/s 8 of the Act of 2005, the conviction of the accused under sub-section (2) or sub-section (3) of Section 3 of the Act is a sine qua non and without conviction of the accused i.e., alleged dispossessors or illegal occupants, the restoration of possession cannot be ordered. In this regard, reliance may be placed on the case titled "Syed Zanon Mian and four others vs. Misslunisa" (2022 YLR 2252), wherein this Court, in quite similar circumstances, has held that: "6. It is manifest from section 8 read with subsections (2) and (3) of section 3 of the Act that the Court in case of conviction of the accused can pass the order for restoration of the property but in the present case the learned trial Court, after recording evidence in the case, has acquitted the accused on one hand and on the other hand has ordered for restoration of possession of the land to complainant. In other words, conviction is sine qua non for handing over the possession under section 8 of the ibid Act. Thus, findings of the learned trial Court are not in consonance with the above referred provisions of the Act as well as section 367, Cr.P.C. requiring the Court to give specific findings for determination of a criminal controversy. So, the judgment of the learned trial Court, being illegal, is liable to be set aside."
Recently in the case of "Ali Bahadur Vs. Khan Bahadur etc" (W.P No.245-A/2011) decided by this Court on 19.09.2024, when this Court was resolving the question as to whether on acquittal of the accused, the Court u/s 8 of the Act of 2005 could order restoration of the possession to the complainant has dismissed the writ petition by holding as under: "9 In view of the above, the answer to the above question is that where an accused person had been acquitted from the charges and no order of conviction has been passed against him under sub-section (2) and (3) of section 3 of the Act of 2005 then an order for restoration of property under subsection (1) of section 8 of the ibid Act could not be passed."
Thus, the learned trial Court, while acquitting the accused of the charges, has erred in directing the restoration of possession of the property without properly evaluating the evidence on record in juxtaposition with the settled law on the subject, hence, to that extent, the impugned findings are not sustainable in the eyes of law.
7. Accordingly, this appeal is allowed and resultantly, the judgment of the learned trial Court to the extent of the directions regarding the restoration of possession in favour of the respondent/ complainant is hereby set aside. The aggrieved party may approach the Court of competent jurisdiction for redressal of his/her grievances, in accordance with law. It is further clarified that the above findings of this Court are confined only to the decision of the present appeals and shall not, in any manner, prejudice the mind of any forum seized of the matter of determining the ownership of the property/ house. The connected Cr.A No.238-M/2023 filed by the respondent/ complainant against the acquittal of the accused, being devoid of merit, stands dismissed.