2025 PLP 2433 (YLR)

Sabit Ullah Khan, J.

Through instant criminal appeal preferred under section 417 (2) (a) of Criminal Procedure Code 1898 ("Cr.P.C"), read with section 8-A of Illegal Dispossession Act, 2005 ("Act of 2005"), appellant/ complainant namely Javaid has called in question order/judgment of learned Additional Sessions Judge-II, District Bajaur, dated 28.01.2025, whereby complaint filed by present appellant under section 3 of Act of 2005 was dismissed and thereby acquitted accused/respondents Nos. 1 to 4 including absconding accused namely Sultan Khan, whose acquittal was made in absentia.

2. Written arguments of learned counsel for appellant/complainant have been perused with a minute detail and available gone through in order to redress grievance of appellant/complainant on eve of dismissal of his complaint and resultant acquittal of present respondents/accused.

3. Matter-in-issue came into being when appellant then complainant filed a complaint, alleging therein, that he is inherited owner and in possession of a piece of land situated within local limits of village Manogay Charming, Bajaur, which was comprising of plot as well as agriculture land. It was alleged that on 12.5.2023, accused Sher Zaman, Lal Bacha, Sher Bacha and absconding co-accused Sultan Muhammad have illegally occupied his property measuring 19/20 Darri , (local measurement) in the shape of plot and cut-down barely crops planted on the same. Accused were also alleged to have taken harvested crops to their houses and thereby complainant was dispossessed by force from his inherited property by present respondents/accused. Subject occurrence of dispossession of complainant was witnessed by Niyaz and Syed Rahman. Initially written application/complaint was submitted to DIG Malakand Division for further proceedings against nominated accused. Said complaint was marked to local police of P.S Charmang. In his complaint, complainant has made multiple prayers in terms of initiation of criminal proceedings against accused coupled with possession as well as compensation.

4. When subject complaint was filed, wherein at first instance statement of complainant was recorded under section 200 Cr.P.C. Thereafter, complaint was marked to SHO concerned for inquiry and report, who accordingly submitted the same. Challan was drawn and same was sent-up for trial to learned trial Court to the extent of accused/respondents Nos. 1 to 3, whereas proceedings under section 512 Cr.P.C were initiated against absconding co-accused namely Sultan Muhammad. Accused were confronted with statement of allegations through formal charge-sheet, to which they pleaded not guilty and claimed trial.

5. To substantiate guilt of accused, prosecution furnished its account consist of the statements of five (05) witnesses. Accused were confronted to evidence so furnished through statements of accused within the meaning of section 342 Cr.P.C. On conclusion of trial, accused/ respondents have been acquitted of the charges levelled against them from their criminal liability, on the strength of impugned order/judgment of acquittal dated 28.01.2025, hence, this appeal.

6. Surely, under theme and scheme of Act of 2005, a learned trial Court who is seized of a complaint under section 8 (1) of ibid Act can restore possession to an aggrieved person i.e. complainant without awarding punishment of imprisonment and after taking cognizance under section 4 of Act of 2005 and after preliminary investigation as required under section 5, learned trial Court if considered can attach property under section 6 of ibid Act. Similarly, learned trial Court as an interim arrangement can also evict a trespasser or an illegal occupier from disputed property and hand it over to a complainant under section 7 of ibid Act. Likewise, after conclusion of trial, learned trial Court under theme and object of Illegal Dispossession Act can punish nominated accused for a period of ten years under section 3 of Act 2005 if a Court found that an owner or occupier of property was illegally dispossessed, then in such eventuality, it can issue direction to nominated accused to restore possession of a property to an owner or occupier. Sections 6,7 and 8 of aforesaid Act being relevant for subject controversy, which are reproduced below: -

6. Power to attach property: - (1) If the Court is satisfied that none of the persons are in possession immediately before the commission of the offence, the Court may attach the property until final decision of the case. (2) In case of attachment, the methods of its management, safeguard against natural decay or deterioration shall be determined by the Court.

7. Eviction and mode of recovery as an interim relief:- (1) If during trial the Court is satisfied that a person is found prima facie to be not in lawful possession, the Court shall, as an interim relief direct him to put the owner or occupier, as the case may be, in possession. (2) Where the person against whom any such order is passed under subsection (1) fails to comply with the same, the Court shall, notwithstanding any other law for the time being in force, take such steps and pass such order as may be necessary to put the owner or occupier in possession. (3) The Court may authorize any official or officer to take possession for securing compliance with its orders under subsection (1). The person so authorized may use or cause to be used such force as may be necessary. (4) If any person, authorized by the Court, under subsection (3), requires police assistance in the exercise of his power under this Act, he may send a requisition to the officer-in-charge of a police station who shall on such requisition render such assistance as may be required. (5) The failure of the officer-in-charge of police station to render assistance under subsection (4) shall amount to misconduct for which the Court may direct departmental action against him.

8. Delivery of possession of property to owner, etc.- (1) On conclusion of trial, if the Court finds that an owner or occupier of the property was illegally dispossessed or property was grabbed in contravention of section 3, the Court may, at the time of passing order under subsection (2) of that section, direct the accused or any person claiming through him for restoration of the possession of the property to the owner or, as the case may be, the occupier, if not already restored to him under section 7. (2) For the purpose of subsection (1), the Court may, where it is required, direct the officer-in-charge of the police station for such assistance as may be required for restoration of the possession of the property to the owner or, as the case may be, the occupier. Aforesaid quoted provisions of law would unmistakably show that proceedings under aforesaid Act are quasi-criminal and quasi-civil. Provisions of Act are distinguishable from a Court who is seized of other criminal cases like murder, hurt and theft etc., as learned trial Court who is seized of a complaint under section 3 of Act of 2005 can attach a property, it can as an interim arrangement evict an accused person from disputed property and hand it over to a complainant/aggrieved person and even on conclusion of trial it can restore possession to complainant, however, such powers are not available to learned trial Court who are conducting proceedings of other kinds of criminal cases like murder, hurt and theft etc., therefore, proceedings under ibid Act could not be stricto-sensu said to be that of exclusive criminal proceedings as compared to other kind of criminal cases where an attorney could not act as a complainant or as a witness on behalf of his principal.

7. In view of aforesaid yardstick, it was alleged by present appellant then complainant that he was dispossessed from his inherited property by present respondents/accused by force on 12.5.2023 at 08:00 hours. Complainant also cited two eye-witnesses in whose presence alleged offence of his dispossession was taken place. Statement of appellant/complainant was recorded as PW-2. In his cross-examination, he made an admission in terms that in Para 5 of his complaint he had stated that the suit property was their inherited property, however, in his statement before Investigating Officer he has come up with another claim that the disputed land was purchased by him from one Ajab Khan. In order to clarify this ambiguity about ownership of very disputed land, during the course of trial, appellant/complainant could not produce any documentary evidence in terms as to whether the disputed land had become ownership of appellant on account of being his inherited property or it had fallen into their ownership in view of any sale or deed. Likewise, PW-5 namely Bahadar Khan, Muharir, deposed in his cross-examination that though complaint had mentioned in his complaint that the disputed property was measuring 18/20 Dari, however, during the course of investigation police have not measured the disputed property but on tentative assessment its measurement could be 18 Chaki (local measurement unit). He also deposed that during trial complainant could not produce any ownership document qua purchase of property in dispute. Same was the case with testimony of Investigating Officer namely Iqbal Younas, ASI, PW-1, who deposed in his cross-examination that complainant Javaid had not produced any document in the form of deed in respect of ownership of the property in dispute. Likewise, another alleged eye-witness of occurrence namely Niaz Gul, PW-3 deposed in his cross-examination that he did not remember as to whether at the time of recording of his statement any other persons were present with him or not. In the same breath, he also deposed that at the time of harvesting of crops he was present in his house and as soon as he came out therefrom, he saw accused Sher Zaman was cutting crops. He further clarified that he neither informed complainant Javaid in respect of cutting of crops by one of the nominated Sher Zaman nor any other person of locality apprised him, in this regard. From trend of cross-examination of this PW, it seems that at the time of alleged cutting of barely crops complainant was not present and for the sake of arguments, if he was present on the spot, then obviously he would have been informed about commission of offence, allegedly committed by one of the nominated accused Sher Zaman. Similarly, PW-4 namely Muhammad Ali Khan deposed in his Court statement that both the parties are cousins inter-se and he has no knowledge about ownership and possession of both the parties. Likewise, it was also claimed by complainant that when nominated accused have entered into his landed property they have allegedly cut-down barely crops cultivated on the same and said harvested crops have subsequently been taken by accused to their houses without his permission, however, during the course of investigation neither cut-down pieces of crops have been taken into possession by Investigating Officer in order to verify and substantiate claim of appellant nor any incriminating recovery in this regard has been made from personal possession of accused/respondents nor on their pointation, therefore, this alleged claim of complainant qua harvesting/cutting of barely crops is shrouded in mystery. Even otherwise, alleged testimonies of both these witnesses would be of no help to complainant/prosecution because they had not uttered a single word in respect of dispossession of complainant from the property in dispute.

8. In view of above depositions of star witnesses of appellant/complainant including his own testimony before the Court, it is crystal clear that neither appellant could produce any documentary evidence about ownership of property in dispute wherefrom he was allegedly dispossessed nor his witnesses could utter a single word in their testimonies before Court that in their presence the alleged offence of dispossession of appellant was took place, therefore, the whole allegation of appellant/ complainant in terms that he has been dispossessed from property in dispute is standing in vacuum. As per spirit and object of Act 2005, criminal liability of nominated accused in a complaint has to be fixed, as such, all principles governing criminal administration of justice are to be strictly applied and by pressing into service the same, complainant/prosecution has not been able to prove criminal charge against accused/respondents. In view of aforesaid lacuna and flaw, case of appellant/ complainant is a case of no evidence.

9. As far as acquittal of accused/ respondent No. 4 namely Sultan Khan by learned trial Court in absentia is concerned, section 540-A Cr.P.C mandates and allows a court to dispense with personal attendance of an accused if he is represented by a pleader and there are multiple accused, or if the accused is incapable of appearing before court. In view of aforesaid provisions of law, learned trial Court was justified to make an order in respect of acquittal of aforesaid accused/respondent in absentia, when otherwise, on the available record, no prima facie case is made-out against him, even if he would have been forced to face a full-fledged trial before learned trial Court, more particularly, when on the same set of evidence, other nominated accused/respondents have earned a honourable acquittal during trial proceedings.

10. In view of what has been discussed above, instant criminal appeal being bereft of any merits stands dismissed, in limine. JK/120/P Appeal dismissed.