Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Official Citation: 2024 SHC 1633
Court / Jurisdiction: Sindh High Court
Petitioner: Cr.Rev 94/2024 (S.B.) Sindh High Court, Bench at Sukkur - Muhammad Ishaque (Applicant)
Ruling Summary: This decision was rendered by the Sindh High Court, officially reported as 2024 SHC 1633. In this matter between Cr.Rev 94/2024 (S.B.) Sindh High Court, Bench at Sukkur - Muhammad Ishaque (Applicant) and the Respondent, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
COURT: Sindh High Court CASE NO: Cr.Rev 94/2024 (S.B.) Sindh High Court, Bench at Sukkur CITATION: 2025 SHC SUK 1633 PARTIES: Muhammad Ishaque (Applicant) ORDER DATE: 08-MAY-25 BENCH: Hon'ble Mr. Justice Ali Haider 'Ada'(Author) A.F.R: Yes ------------------------------------------------------------ 1
ORDER SHEET IN THE HIGH COURT OF SINDH BENCH AT SUKKUR Crl. Revision Application No.S-94 of 2024 (Muhammad Ishaque Kalhoro Vs. The State & 3 others) DATE OF HEARING ORDER WITH SIGNATURE OF JUDGE
Hearing of case (priority)
1. For orders on MA No. 63/2024 (Stay). 2. For hearing of bail application.
O R D E R. 08-05-2025.
Mr. Shabbir Ali Bozdar advocate for the applicant. Mr. Ghulam Mujtaba Soomro, advocate for Respondent No.2 Mr. Mansoor Ahmed Shaikh, Deputy P.G for the State. **************** Ali Haider ‘Ada’,J ; Through this Criminal Revision Application, the applicant has challenged the Order Dated 14.11.2024, passed by the learned Sessions Judge, Naushahro Feroze, (tri al Court) in a complaint filed under Sections 3 and 4 of the Illegal Dispossession Act, 2005, by Respondent No. 2, whereby the complaint was taken on record and non-bailable warrants were issued against the applicant.
2. The brief facts of the case are that Respondent No.2, as complainant before the learned trial Court, initiated a Criminal Complaint under Sections 3 and 4 of the Illegal Dispossession Act, 2005. The essence of the complaint was that agricultural land bearing Survey No. 258 A.B, ad measuring 2 -01 acres, situated at Deh Serhal, Taluka Naushahro Feroze (land in question), originally belonged to her late husband. It was alleged that, following his death, the applicant and others forcibly dispossessed the complainant and unlawfully occupied th e said land. The learned trial Court called for reports from the concerned Station House Officer and the Mukhtiarkar, who submitted that the land in question is a joint property of both the applicant and the complainant parties. Thereafter, the learned trial Court passed the impugned order, the operative part of which is reproduced as under:" “In the light of above case law, there is no embargo in the Act of cases of co -owners of joint immovable property, therefore, prima facie case under the illegal dispo ssession Act 2005 has been made out against the accused persons, thus, the complaint is brought on
2
regular file and register the case against accused for the offences punishable under section 3& 4 of Illegal Dispossession Act 2005. Since the offence i s not summon case but warrant case as per FOURTH Column of “Offence against other laws” of schedule -II Cr.P.C and the nature of warrant is not bailable as per FIFTH Column of Cr.P.C R/W S.4(1) (b) of Cr.P.C and 1(2) & 5(2) of Cr.P.C and Section 9 of illegal dispossession Act 2005, hence keeping the Article 5(2) of Constitution of Islamic Republic of Pakistan 1973, let NBW be issued against all accused persons. Case is fixed on 29.11.2024.”
3. The applicant has challenged the aforementioned order through the instant Revision Application. During the pendency of these proceedings, reports were called from the concerned Mukhtiarkar as well as the Station House Officer, both of whom have now submitted their respective reports. The crux of the reports is that the accused party had purchased their share in the land in question from the co -owners through a registered sale deed executed in the year 1974. It is further noted that the complainant's husband had already alienated his entire share i n the said property through a registered sale deed prior to the alleged incident.
4. Learned counsel for the applicant contends that no case of illegal dispossession is made out, as the dispute pertains to co -owners or, at most, co-sharers in the property. H e submits that such matters are to be resolved through civil litigation and even the learned trial court, in the impugned order, admitted that the land in question is joint property. Despite this, the trial Court fell into legal error by issuing non -bailable warrants based on a complaint under Sections 3 and 4 of the Illegal Dispossession Act, 2005. Learned Counsel further draws attention to page 43 of the Court file, which contains a registered sale deed executed in 1974, wherein the father of applicant is mentioned as a co -owner of the land in question. He submits that since then, the applicant and others have been in lawful possession. He alleges that Respondent No.02, is attempting to dramatize the situation to gain sympathy and unlawfully reclaim possession. It is argued that the proceedings before the trial Court amount to an abuse of process and the impugned order is liable to be set aside. In support of his arguments, learned counsel places reliance on the cases of Barkat Ali and 2 others vs. The State (2025 P.Cr.L.J 41), Nadeem Waqar Khan vs. Javed Masood Ahmed Khan (PLD 2020 Sindh 8), and Mohammad Ismail and 9 others vs. Abdul Jabbar and another (2018 MLD 1462).
3
5. On the other hand, learned counsel for respondent No.02/complainant contends that the applicant, along with other co-accused, forcibly took possession of the land in question. He supports the action of the learned trial Court in taki ng cognizance under the Illegal Dispossession Act, asserting that the sale deed relied upon by the applicant and the Mukhtiarkar is a forged document. However, when specifically queried during proceedings as to whether any legal action or declaratory suit had been instituted to challenge the said registered document as forged, the response was in the negative. Finally prays for dismissal of this Revision.
6. Conversely, the learned State Counsel supports the impugned order on the ground that the trial Court after approved that the land in question is joint in nature and took cognizance on the point of dispossession. He further submits that in such circumstances, proper course to file application under sec tion 265-K Cr.P.C instead to challenge the order.
7. Heard the arguments of the learned counsel and perused the material available on record with utmost care and caution.
8. At the outset, it is essential to understand the legislative intent behind the promulg ation of the Illegal Dispossession Act, 2005. The primary object of this Special Statute is to provide effective protection against land grabbing and to safeguard the rights of lawful owners and occupants who are illegally or unlawfully dispossessed from t heir immovable properties. Prior to the enactment of this law, aggrieved parties were typically left with the option of pursuing civil remedies under Sections 8 and 9 of the Specific Relief Act, or registering criminal cases under general provisions of the Pakistan Penal Code such as criminal trespass (Section 441 PPC) or house -trespass (Section 442 PPC). Recognizing this legal aspect, the legislature introduced the Illegal Dispossession Act as a Special Law to address such grievances through a more summary procedure, ensuring fast relief to rightful owners and occupants, while simultaneously prescribing stringent punishment upto ten years imprisonment and compensation for those found guilty. However, this statute is not to be applied in a mechanical or supe rficial manner. Courts are expected to exercise due diligence, caution, and
4
judicial prudence before taking cognizance under the Act. It is, therefore, the duty of the Courts to carefully examine all factual and legal aspects of such complaints and to ensure that the jurisdiction conferred by the Illegal Dispossession Act, 2005, is exercised stri ctly within its intended scope and is not invoked in matters that fall outside the purview of the Act.
9. It is also a settled procedure that before initiating any pr oceedings under the Illegal Dispossession Act, 2005, it is incumbent upon the learned trial Court to seek reports from the concerned functionaries, to reach a just and proper conclusion. Even, t he proviso to Section 5 of the Illegal Dispossession Act, 2005, empowers the trial Court to direct the Magistrate to conduct an inquiry prior to taking cognizance of the offence, ensuring that the complaint is thoroughly examined and verified before judicial proceedings are initiated. This procedural safeguard ensure s that the complaint is not entertained blindly and that a prima facie case of illegal dispossession by a stranger or land grabber and not a co -owner or lawful occupant, is made out.
10. The rationale behind this requirement is to prevent the misuse of judicial process and to ensure that no person is prejudiced by the act of the Court based on unverified allegations. The legal maxim Actus curiae neminem gravabit is an important legal principle that means An act of the Court shall prejudice no one.
11. The object of the Act is to provide expeditious relief to genuinely aggrieved persons; however, such protection must not be extended to those seeking to exploit the process of law for ulterior motives or to settle personal scores. Therefore, it is the duty of the Court to thoroughly examine the contents of the complaint with a judicial mind, in light of the reports from relevant authorities and not to proceed mechanically. Any deviation from this approach may result in miscarriage of justice, especially in cases where the dispute is civil in nature or relates to co-ownership.
12. Now, in this context, if the present case is examined in light of the law, it becomes evidently clear that the accused, who have been nominated in the complaint u nder Sections 3 and 4 of the Illegal Dispossession Act, 2005, are in fact co -owners of the land in question.
5
Their claim is based on a registered sale deed bearing Jaryan No. 1219, dated 15-08-1974. The applicant Muhammad Ishaque is the son of one of the co-owners, namely Darya Khan. As per the said Sale Deed, the land in question was jointly purchased and owned b y Hayat, Darya Khan, and Kubher (accused). The complainant/ Respondent No.2 is the widow of Muhammad Hayat, while the applicant is her nephew by r elation, being the son of Darya Khan, (co-owner), the real brother of Hayat.
13. It is further confirmed through the revenue record and is even acknowledged in the impugned order that the land in question is joint property between the complainant and the accu sed party. Given these admitted facts, the matter squarely falls within the domain of a property dispute among co-owners. Therefore, it does not attract the application of the Illegal Dispossession Act, 2005, as such provisions are intended to protect lawf ul owners or occupants from forcible dispossession by persons having no lawful entitlement and not to regulate inter se possession among co-sharers.
14. In this regard, guidance can be drawn from a consistent line of judgments delivered by the Honourable Supe rior Courts of Pakistan, wherein complaints under Sections 3 and 4 of the Illegal Dispossession Act, 2005 were dismissed or the accused were acquitted on the specific ground that the parties were co -owners, co -sharers, or had a civil relationship such as p artnership in the property. The Courts have categorically held that where the title or possession is claimed by co-owners or where civil rights are involved, the proper remedy lies in the civil forum and not by invoking criminal juri sdiction under the Act. The intent of the Act is to prevent illegal dispossession by land grabbers and not to regulate pos session among lawful co -owners. Reliance is placed on the following authorities:
Nadeem Waqar Khan Vs Javed Masood Ahmed Khan, P L D 2020 Sindh 8, it has been held that:
4. There is no cavil to the proposition that complaint under the Illegal Dispossession Act 2005 is maintainable against any person who forcibly dispossesses the occupier or owner but such remedy is never meant to settle civil dispute or a substitute for civil suit. Here in this case the applicant himself admits the status of respondent (accused) as that of 'partner' though alleged to be sleeping. The rights and liabilities of a 'partner' are controlled by the terms and conditions of partnership deed 'however what the term 'partner' refers to is a:
6
"business by two or more individuals who share management and profits'. Prima facie, the each partner would be presumed to be in possession or control of such business, hence legally the remedy of Illegal Dispossession Act would not be available for a partner against other partner even if allegation is that of dispossession. Perusal of impugned order shows that same is on reasonable grounds and with regard to removal of documents and accounts from the property as well dispossession if any, applicant is at liberty to approach civil court. This Criminal Revision Application is dismissed.
Haji Abdul Karim Memon and another Vs The State and another, 2019 YLR2376, [Sindh] it has been held that:
10. There appears to be a case of civil nature between the parties and in my view, the record shows that the subject property in fact is a Municipal land and both parties are falsely claiming their right to such public land. The Honourable Supreme Court time and again has issued directions that all public lands should be removed from encroachments and should be used only for public purposes.
Nawabzada Muhammad Usman Khan Vs Nawabzada Muhammad Fateh Khan and Another2013 Y L R 1001 [Peshawar], it has been held that:
5. According to contents of the complaint it is an admitted fact that the petitioner and respondent No.1 are the real brothers being the sons of Nawabzada Muhammad Khalid Khan who in his life time partitioned his land amongst three sons i.e. petitioner, respondent No.1 and Changez Khan. It is also an admitted fact that there is a dispute between the co -owners over possession of the property and to this effect the petitioner/complainant has filed civil suit under section 9 of the Specific Relief Act, which is pending adjudication and simultaneously registered a criminal case vide F.I.R. No.749 dated 28-8-2011 under sections 379, 447, 427,148 and 149 against respondent No.1 and during the pendency of the above matter, the petitioner also filed the instant complaint so it was a dispute between the two brothers over the property left by their predecessor-in- interest, furthermore, respondent No.1 neither belongs to a class of property grabbers nor Qabza Group, hence no case under section 3 of Illegal Dispossession Act has been made out. Reference is made to the judgment of a Full Bench of the Lahore High Court in Zahoor Ahmad and others v. The State and others (PLD 2007 Lahore 231) wherein it has been held that the Illegal Dispossession Act, 2005 was restricted in immovable property which has allegedly come about through the hands of a class or group of persons who could qualify as property grabbers/Qabza Groups/land mafia and the said Act was being invoked and utilized by the aggrieved persons against those who have credentials of antecedents being members of the Qabza Groups or land mafia. It was further held that the Illegal Dispossession Act, 2005 has been found to be completely nugatory to its contents as well as objectives. Reliance is also placed on "Mobashir Ahmad v. The State (PLD 2010 SC 665) and "Habib Ullah v. Abdul Manan" (2012 SCMR 1533).
Khadim Ali Vs Hakim Ali and Another, 2021 Y L R 1556 [Sindh] , it has been held that 11. In view of what has been stated above, I am of the view that the parties are disputing over the subject property and the respondent Hakim Ali claimed to be in possession of the disputed property prior to the alleged date of dispossession shown by the complainant, who has not substantiated his case as set out in his ID complaint by any evidence worth consideration and no case attracting the provisions of Illegal Dispossession Act, 2005 has been made out by the complainant and the matter is purely of civil nature, as the claim o f the parties regarding ownership and possession over the disputed property can only be sifted by adducing evidence of the nature before the Court of plenary jurisdiction with consequential relief of possession in appropriate proceedings. I have seen the i mpugned judgment dated 28.03.2017, passed by the learned trial Court acquitting the respondent on failure of the complainant to prove his case against the respondent beyond a reasonable doubt.
7
Patently the impugned acquittal judgment is apt to the facts an d circumstances of the case, which suffering from no illegality or misreading or non -reading of the evidence does not call for any interference in criminal acquittal appeal under the provisions of section 417, Cr.P.C. In the case of Muhammad Shafi v. Muham mad Raza and another (2008 SCMR 329), the Hon'ble Supreme Court of Pakistan has held that: - "An accused is presumed to be innocent in law and if after regular trial he is acquitted he earns a double presumption of innocence and there is a heavy onus on the prosecution to rebut the said presumption. In view of the discrepant and inconsistent evidence led, the guilt of accused is not free from doubt, we are therefore, of the view that the prosecution has failed to discharge the onus and the finding of acqu ittal is neither arbitrary nor capricious to warrant interference. The petition having no merit is dismissed and leave is refused."
Bashir Ahmad Vs Additional Sessions Judge, Faisalabad And 4 Others, P L D 2010 Supreme Court 661, the precedent dictates that:
4. After hearing the learned counsel for the petitioner and going through the documents appended with this petition it has been noticed by us that while recording the acquittal of respondents Nos. 2 to 4 upon acceptance of their application submitted under section 265-K, Cr.P.C. the learned Additional Sessions Judge, Faisalabad had observed that the claim of respondents Nos. 2 to 4 regarding ownership and possession of the relevant parcel of land was based upon a sale -deed manifesting alienation in th eir favour, a Jamabandi showing the said respondents as owners in possession of the disputed land and a Khasra Girdawari reflecting that the said respondents were in possession of the land in issue. The learned Additional Sessions -Judge had also observed in his order dated 6 -3- 2006 that a private complaint already stood instituted in respect of commission of some criminal offences and a suit for possession as well as a suit for partition pertaining to the same land were already pending before different Cou rts between the same parties and, thus, the dispute between the parties over the relevant parcel of land was a bona fide dispute which was already sub judice before the civil and criminal Courts. The relevant sale deed being relied upon by respondents Nos. 2 to 4 had ostensibly made the said respondents co -sharers of the petitioner and co -owners of the land in issue and the pending suit for partition went a long way in supporting the case of respondents Nos. 2 to 4 in that respect. It had been held by a Ful l Bench of the Lahore High Court, Lahore in the case of Zahoor Ahmad and 5 others v. The State and 3 others PLD 2007 Lah. 231 that the Illegal Dispossession Act, 2005 has no application to cases of dispossession between co-owners and co -sharers and also th at the said Act is not relevant to bona fide civil disputes which are already sub judice before civil or revenue Courts. It had also been declared by the Full Bench of the Lahore High Court, Lahore in that case that the Illegal Dispossession Act, 2005 was introduced in order to curb the activities of Qabza groups/property grabbers and land mafia. It has been conceded before us by the learned counsel for the petitioner that no material is available with the petitioner to establish that respondents Nos. 2 to 4 belonged to any Qabza group or land mafia or that they had the credentials or antecedents of being property grabbers. In view of the discussion made above the impugned acquittal or respondents Nos. 2 to 4 recorded by the learned Additional Sessions Judge , Faisalabad upon acceptance of their application submitted under section 265-K, Cr. P. C. has been found by us to be entirely justified and dismissal of the petitioner's writ petition by the learned Judge of the Lahore high Court, Lahore has also been found by us to be unexceptionable. In the circumstances of this case mentioned above we have entertained an irresistible impression that through filing of his complaint under the Illegal Dispossession Act, 2005 the petitioner had tried to transform a bona fide civil dispute between the parties into a criminal case so as to bring the weight of criminal law and process to bear upon respondents Nos. 2 to 4 in order to extract concessions from them. Such utilization of the criminal law and process by the petitioner has been found by us to be an abuse of the process of law which cannot be allowed to be perpetuated.
Syed Abdul Wahab Vs VIIIth Additional District And Session Judge, Karachi And 6 Others, 2021 M L D 395 [Sindh], it has been held that:
8
8. It reveals from the record that four (4) civil suits for declaration, permanent injunction and possession were filed before this Court with regard to same subject property and these suits were filed prior to institution of direc t complaint. Thus, the dispute between the parties over the subject property was bona fide civil dispute, which was already subjudice before this Court in different suits. It has been held by the Full Bench of the Lahore High Court, Lahore in the case of Z ahoor Ahmad and 5 others v. The State reported in PLD 2007 Lah. 231 that the Illegal Dispossession Act, 2005 has no application to cases of dispossession between co -owners and co -sharers and also that the said act is not relevant to bona fide civil disputes, which are already subjudice before civil or revenue Courts. It has also been declared by the Full Bench of the Lahore High Court, Lahore in that case that the Illegal Dispossession Act, 2005 was introduced in order to curb the activities of Qabza groups /property grabbers and land mafia. During the course of arguments, it has been conceded by the learned counsel for the appellant that no material is available with the appellant to establish that respondents belonged to any Qabza group or land mafia or tha t they had the credentials or antecedents of being property grabbers.
9. In the circumstances of this case mentioned above, I have entertained an irresistible impression that through filing of his complaint under the Illegal Dispossession Act, 2005, the appellant has tried to transform a bona fide civil dispute between the parties into a criminal case so as to bring the weight of criminal law and process to bear upon respondents in order to extract concessions from them. Such utilization of the criminal law and process by the appellant has been found by this Court to be an abuse of the process of law which cannot be allowed to be perpetuated.
Muhammad Aslam Vs Imamuddin Ahmed And 7 Others, 2013 M L D 1444 [Sindh], it has been held that:
9. Accordingly, it would be proper to examine the case in hand on the above touch -stone. Applicant himself admits that the subject matter property is undivided one hence in such like event it is legally presumed that every shareholder of a joint holding would be deemed to be in joint possession, therefore, co -sharer Mohammad Siddique, brother of applicant, cannot be legally presumed to be out of possession of such joint holding, who undisputedly sold out the share to accused/respondent through register sale deed, hence the accused / respondent, legally to be presumed, to be standing in the same position of such co-sharer. Without prejudice to this the complainant/applicant has further admitted in his complaint that the possession was handed over to the respondent by the Selle r who was co-sharer with the applicants. Since the complainant/ applicant himself admits about delivery of possession to the accused/ respondent by an admitted co -sharer then the complainant/applicant is not legally justified to allege that the accused/res pondents dispossess the applicant. Further, it is also a matter of record that suit for Specific Performance was filed before this complaint and no criminal case regarding the criminal assault, if any committed by respondents/accused was lodged. Thus what becomes evident on record is that accused/ respondent was put in possession by an owner (co -sharer), accused/…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.