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Petitioner: Asad Ullah Malik VS Respondent: Malik Basharat Ullah Honorable Justice Sadiq Ali Adil Mir , Muhammad Saleem Awan
CITATION: 2026 YLR 2114 CASE: 2026P4042 TITLE: Asad Ullah Malik VS Malik Basharat Ullah Honorable Justice Sadiq Ali Adil Mir , Muhammad Saleem Awan COURT: PESHAWAR-HIGH-COURT YEAR: 2026 JOURNAL: YLR ============================================================
2002 Y L R 2026 Y L R 2114 [Peshawar (Abbottabad Bench)] Before Sadiq Ali, J Asad Ullah Malik ---Appellant Versus Malik Basharat Ullah and 6 others---Respondents Criminal Appeal No. 91-A of 2023, decided on 19th September, 2025. Illegal Dispossession Act (XI of 2005)--- ----S. 3---Illegal dispossession---Complaint by co-sharer in joint property---Vague particulars of dispossession---Partition proceedings pending---Share and possession not demarcated---Complaint under S. 3, dismissal of---Appellant/complainant was aggrieved by the order of the Trial Court whereby his complaint filed under S. 3 of the Illegal Dispossession Act, 2005 was dismissed---Appellant alleged that he was co-owner, along with the respondents/accused, in the property measuring 1 kanal 2 marlas, wherein he claimed ownership and possession of approximately 3 marlas---Accused/respondents allegedly forcibly entered the appellant's portion of the property, removed material from the plot, unlawfully occupied the same and locked it, thereby depriving the appellant of possession---After recording the statement of the appellant under S. 200, Cr.P.C., the Trial Court marked the complaint to the concerned S.H.O. for inquiry/ investigation and, in pursuance thereof, report was submitted---Thereafter, the Trial Court dismissed the complaint as not maintainable---Validity---Complainant had remained vague and ambiguous with respect to the essential particulars of the alleged occurrence---Neither the exact date, time nor precise place of the alleged dispossession had been specifically pleaded or established---Such lack of clarity struck at the root of the complaint, as allegations of illegal dispossession require a categorical and unambiguous assertion of facts to constitute an offence under the statute---Absence of such foundational details rendered the complainant's narrative doubtful and raised serious questions regarding the veracity and sustainability of the claim advanced against the respondents---In addition, civil proceedings in the shape of a suit for partition were pending adjudication, which had culminated in the passing of a preliminary decree---Presently, proceedings for preparation of the final decree were pending before the Court---Record further transpired that the property in dispute was a joint holding, and the complainant was seeking separation of his share from the joint property through the said proceedings---Since the suit had already been preliminarily decreed, the matter was at the stage of final decree, wherein the respective shares of the parties were yet to be demarcated and separated---In such circumstances, actual possession of the respective parties over the suit property had not yet been conclusively determined---Until and unless the final decree was prepared and shares of the parties were physically separated, the question of exclusive possession by any one party could not legally arise---Thus, when the share and possession of the appellant in the suit property remained indeterminate, maintainability of the complaint alleging illegal dispossession from a specific portion of joint property became highly questionable---Moreover, the police report was also conspicuously silent with regard to any act of forcible or unlawful dispossession of the complainant---At best, the complainant was a co-sharer in joint property, and one co-sharer could not claim exclusive possession against another co-sharer unless and until the property was 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 appeared to be misconceived, premature and unsustainable in law---Appeal, having no merit or substance, was dismissed. Adil Mir for Appellant. Muhammad Saleem Awan for Respondents. Date of hearing: 19th September, 2025. Judgment 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.