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Petitioner: Hafiz MUHAMMAD SIDDIQUE VS Respondent: State Honorable Justice Ali Baqar Najafi M.I. Zafar Khan , Awais Ahmed Qazi
CITATION: 2026 SCMR 1234 CASE: 2026S875 TITLE: Hafiz MUHAMMAD SIDDIQUE VS State Honorable Justice Ali Baqar Najafi M.I. Zafar Khan , Awais Ahmed Qazi COURT: SUPREME-COURT YEAR: 2026 JOURNAL: SCMR ============================================================
305 2026 S C M R 1234 [Supreme Court of Pakistan] Present: Aamer Farooq and Ali Baqar Najafi, JJ Hafiz MUHAMMAD SIDDIQUE ---Petitioner Versus The STATE through Advocate General Punjab and others ---Respondents C.P.L.A. No. 2996-L of 2015, decided on 22nd April, 2025. (Against order of Lahore High Court, Lahore dated 16.10.2015 in W.P. No. 27495 of 2012). Illegal Dispossession Act (XI of 2005)--- ----S.3---Alleged dispossession on basis of oral agreement to sell---Dispossession---Proof---Essential ingredients--- Mens rea and actus rea ---Scope---Civil suit on the subject matter already pending---Effect---Maintainability of dispossession complaint---Briefly, the petitioner filed a complaint under Section 3 of the Illegal Dispossession Act, 2005, alleging dispossession from the property on the basis of an unattested oral agreement to sell, while a civil suit concerning the same property had already been filed earlier and was pending---After recording evidence, the trial court dismissed the complaint for failure to prove unlawful dispossession and related allegations ---Subsequently, High Court upheld the dismissal, holding that an oral agreement created no proprietary right and that the dispute was essentially civil in nature---Pivotal issue requiring determination before the Supreme Court was as to whether the petitioner had established unlawful dispossession within the meaning of Section 3 of the Illegal Dispossession Act, 2005, particularly the existence of the essential ingredients of actus reus and mens rea, despite the dispute being rooted in an oral agreement to sell and already being the subject of pending civil proceedings? ---Held: Unlawful dispossession under Section 3 of the Act, 2005 was not proved as every dispossession did not attract the provision of said Act; the ingredients of mens rea and actus rea were essential to be proved under the said Act---Besides the selection of civil remedy by making a conscious decision by the petitioner was correct in the facts and circumstances---Present petition was dismissed, in circumstances. M.I. Zafar Khan, Advocate Supreme Court Additional Advocate General Punjab for Petitioner. Awais Ahmed Qazi, Additional Advocate General for Respondent No. 1. Agha Intizar Ali Imran, Advocate Supreme Court for Respondents Nos. 2 to 6. Date of hearing: 22nd April, 2025. ORDER ALI BAQAR NAJAFI, J.--- The petitioner seeks indulgence of this court against the orders passed by Lahore High Court dated 16.10.2015, and the order passed by Additional Sessions Judge dated 18.10.2011 whereby the private complaint filed by the petitioner under Section 3 of the Illegal Dispossession Act 2005 was concurrently dismissed on the grounds that the ownership of the property is still in dispute; the unlawful dispossession of the petitioner was not proved; the essential elements for the commission of the offence; i.e. actus rea and mens rea were absent; and that the civil litigation was also remained pending between the parties. 2. In the complaint filed by the petitioner on 13.10.2005 it was categorically admitted by the petitioner in paragraph No.3 that an oral written agreement to sell was made between the parties but the instrument was taken by respondents for attestation by a notary public and was never return. In paragraph No.5 it was also mentioned that in the month of May 2005 the petitioner came to know that the respondents Nos. 1 and 2 were trying to sell out the property to someone else upon which a civil suit was also filed against them in which a restraining order was also issued on 24.05.2005 which suit is pending. 3. In paragraph No. 6 it was, however, mentioned that at the time of dispossession of the petitioner on 28.09.2005 at 02:00 p.m. 5 kilograms of gold approximately was also taken despite their being a restraining order. After recording of the cursory statements of Muhammad Rashid son of Muhammad Aslam, Muhammad Irshad son of Muhammad Aslam, Hafiz Muhammad Sadiq son of Muhammad Hanif and Tariq Javed son of Haji Muhammad Sharif, the respondents were summoned to face trial. The charge was framed and the complainant produced four witnesses and closed the evidence. 4. The trial court summoned Muhammad Haris Sub-Inspector (CW-1) who admitted in cross-examination that the workshop was in possession of the petitioner. The respondent also produced Muhammad Saleem (RW-1) Haji Abdul Hamid (RW-2) Muhammad Akram (RW-3) Ch. Muhammad Ashraf (RW-4) in his defense. The learned trial court dismissed the complaint by observing that the allegation of the robbery was not proved since the valuable articles were lying in the safe custody in lock and key. No evidence was brought on record to indicate that the construction on the first floor of the property was made by the petitioner. The complainant and his witnesses were not found truthful, therefore, they were not relied upon and the complaint was dismissed. 5. The writ petition filed by the petitioner challenging the said order of the trial court was dismissed with additional grounds that oral agreement to sell did not create any right in property and that the civil remedy has been chosen by filing a civil suit and that mere dispossession without mens rea was not sufficient to attract the provisions of the Illegal Dispossession Act, 2005. 6. After hearing the learned counsel for the petitioner, it is straightaway noted that the unlawful dispossession under Section 3 of the Illegal Dispossession Act, 2005 was not proved as every dispossession does not attract the provision of said Act that the ingredients of mens rea and actus rea are essential to be proved under the Act ibid. Besides, selection of civil remedy by making a conscious decision by the petitioner was correct in the facts and circumstances. In view of this, the petition is dismissed . UN/M-105/SC Petition dismissed.