2025 P Cr. L J 1403
[Balochistan]
Before Muhammad Najam -ud-Din Mengal, J
LIAQUT ALI and another ---Appellants
Versus
Dr. SAHIBZADA SAEED AHMED and another ---Respondents
Criminal Appeal No. 75 of 2023, decided on 18th April, 2025.
Illegal Dispossession Act (XI of 2005) ---
----Ss. 3, 4 & 5--- Illegal dispossession of property ---Appreciation of evidence ---Civil
dispute over property between the parties ---Scope ---Accused -appellants were charged for
dispossessing the complainant from his property and taking illegal possession of the land
and making construction thereon ---Bare reading of the contents of complaint reflected
that the same was silent to the effect that as to why the respondent/complainant kept mum for a long period of eleven years i.e. 2010 to 2021 after his illegal dispossession from the property in question and did not file complaint or initiate any legal proceedings against the present appellants before any competent forum rather in the first round of litigation in the year 2016 the respondent/ complainant filed a case under Illegal Dispossession Act,
2005 before the Trial Court against one "KR", wherein it was alleged that said "KR" had illegally occupied and built rooms and a boundary wall over the land of the complainant, which was dismissed by the Trial Court ---Besides, the complainant had also filed a civil
suit for declaration against the said "KR" in the year 2016 and subsequently, the same was withdrawn by the complainant ---Not approaching any legal forum by the
respondent/complainant against the present appellants for redressal of his grievance and keeping silence for 11 years was suggestive of the fact that there existed civil dispute between the parties ---Even otherwise, the mode of dispossession was also not mentioned
in the complaint coupled with long -standing possession of the appellants (accused) ---Said
factors were enough to hold that the appellants (accused) did not belong to class of property grabbers or Qabza group and that's why no such allegations had been leveled, hence no case under S.3 of the Act of 2005 was made out rather it appeared from the record that the matter between the parties was of civil nature and could be decided by a Civil Court of competent jurisdiction ---Admittedly, on the one hand, the complainant had
failed to show his possession, while on the other hand, no concrete evidence had been produced by the complainant from which he could be establish any connection of the appellants with the land mafia/Qabza mafia and land grabbers ---Appeal against
conviction was allowed, in circumstances.
Amroze Khan v. Motaser Khan and others 2013 MLD 1564; Muhammad Ibrahim v.
The State 2023 YLR 2691 and Dr. Zaib- un-Nisa v. Muhammad Shabbir and others 2025
PCr.LJ 162 rel.
Muhammad Riaz Ahmed for Appellants.
Muhammad Ewan Zehri for the Complainant.
Wahahat Khan Ghaznavi, State Counsel for the State.
Date of hearing: 10th April, 2025.
JUDGMENT
MUHAMMAD NAJAM -UD-DIN MENGAL, J .--- This judgment disposes of
Criminal Appeal No.75 of 2023 filed by the appellants namely Liaqat Ali son of Muhammad Usman and Noor Muhammad son of Usman, against the judgement dated 22nd December 2023 ("the impugned judgment") passed by learned Sessions Judge, Hub, ("the trial Court"),
whereby the appellants were convicted under Section 3 (2) of Illegal Dispossession Act,
2005 ("Act of 2005") and sentenced to suffer seven (07) years R.I. with fine of Rs.50000/ -
(Rupees Fifty Thousand) each, or in default thereof to further suffer One (01) month S.I. each. The appellants were also directed to pay Rs.100,000/ - (Rupees One Hundred
Thousand) each, as compensation under Section 544- A, Cr.P.C. to the complainant. The
possession of the property was directed to be restored to the complainant.
2. Facts of the case are that the private respondent (Dr. Sahibzada Saeed Ahmed) filed a
complaint under Sections 3, 4 and 5 of the Act of 2005 before the learned trial Court against the appellants including co- convict namely Muhammad Yousaf son of Muhammad Khan and
deceased Muhammad Ibrahim with the allegations that they have dispossessed him from his land measuring 1- 0-0 acre, bearing Khasra No.837, Mutation No.12336, situated at Mouza
Pathra Tehsil Hub District Lasbela (hereinafter referred as, "the land in question"). It is further averred that the appellants with mala fide intention to grab the land in question illegally dispossessed the complainant and took the illegal possession of land in question and made construction upon the land in question.
3. After filing of the complaint, report was sought from the SHO concerned, which was
accordingly submitted, whereafter the trial Court has taken the cognizance of the matter and indicted the charge to the appellants and co -accused persons, who denied the same and
claimed trial. During trial, the prosecution produced four witnesses. Whereafter, the appellants and co -accused persons were examined under Section 342, Cr.P.C. They recorded
their statements on oath under Section 340(2), Cr.P.C. However, the appellants (accused) also produced evidence of three witnesses in their defence. It is worthwhile to mention here that respondent/accused No.4 (Muhammad Ibrahim) passed away during the course of trial,
as such, trial has been abated to his extent, while the complainant (respondent) did not implead his legal heirs as respondents. On conclusion of trial and after hearing arguments, the appellants including co- accused Muhammad Yousaf son of Muhammad Khan were
convicted and sentenced as mentioned above in para No.1. Whereafter, the instant appeal has been filed.
4. Heard the learned counsel for parties and perused the record with their valuable
assistance. The record reveals that the respondent No.1 (complainant) filed the complaint under Sections 3, 4 and 5 of Illegal Dispossession Act, 2005, against the appellants and others, stating therein that he is lawful owner of the property in question and purchased the same from one Gul Muhammad son of Muhammad Ismail in the years 2002 and he used to always visit the land in question, but due to some professional commitments he could not visit his property from the year 2007 to 2010, but in the year 2010, when he visited his property in question found the same populated by means of construction of houses; whereby he came to know that appellants and others illegally dispossessed him from the land in question and laid their forcible entrance in the property with intention to grab the same. Record further reveals that aforesaid complaint was contested by the appellants before the learned trial Court and after inquiry and submission of report by the SHO concerned, the learned trial Court took the cognizance of the matter and commenced with the trial, which culminated into awarding sentence to the appellants and co -accused.
5. It has been observed that the main object and purpose of promulgation of the Act of
2005 is to curb the activities of the property grabbers. Therefore, the Act applies only to dispossession from immovable properties by property grabbers/land mafia. However, the Act of 2005 does not apply to the alleged cases of dispossession by ordinary persons who cannot, by any stretch of imagination, be termed as land grabbers/land mafia/Qabza Group. This includes cases of disputes over possession of immovable propert ies between co -owners or
co-sharers, between landlord and tenants, between persons claiming possession on the basis
of inheritance, between persons claiming to be owners of the land on the basis of title documents in their favour, or cases with a background of an ongoing private dispute over the relevant property. Perusal of entire record including the complaint filed by the respondent No.1 (complainant) transpires that the respondent No.1 (complainant) has neither even alleged that the appellants (accused persons) belonged to Qabza Mafia or they are land
grabbers nor during the course of recording his statement before trial Court has brought the names of the appellants that they have illegally dispossessed him from his land in question rather he just deposed in his examination in chief that some land grabbers have occupied his property, but the trial Court has failed to consider this important aspect of the case and has
wrongly taken cognizance of the matter. The respondent No.1 (complainant) has failed to
prove the charge against the appellants linking them with the Land Mafia or Qabza Group.
6. Bare reading of the contents of complaint reflect that the same are also silent to the
effect that as to why the respondent No.1 (complainant) kept mum for a long period of eleven years i.e. 2010 to 2021 after his illegal dispossession from the property in question and did not file complaint or initiate any legal proceedings against the present appellants before any competent forum rather in the first round of litigation in the year 2016 the respondent No.1 (complainant) filed a case under Illegal Dispossession Act before the learned trial Court against one Khalil -ur-Rehman, wherein alleged that said Khalil -ur-Rehman has illegally
occupied and built rooms and a boundary wall over the land of the complainant, which was dismissed by the learned trial Court, vide order dated 31st May 2016. Besides, the complainant has also filed a Civil Suit for declaration against the said Khalil -ur-Rehman in
the year 2016 and subsequently, the same was withdrawn by the complainant on 24th April 2021 with cost. Nonapproaching to any legal forum by the respondent No.1 (complainant) against the present appellants for redressal of his grievance and keeping silence for 11 years is suggestive of the fact that there had existed any civil dispute in between the parties. Even otherwise, the mode of dispossession was also not mentioned in the complaint coupled with
long-standing possession of the appellants (accused) are enough to hold that the appellants
(accused) did not belong to class of property grabbers or Qabza group and that's why no such
allegations have been levelled, hence no case under Section 3 of the Act of 2005 is made out
rather it appears from the record that the matter in between the parties pertains to a civil
nature and could be decided by a Civil Court of competent jurisdiction. Reliance in this regard is placed on the case of Amroze Khan v. Motaser Khan and others, 2013 MLD 1564. The relevant portion reads as under:
"22. What transpires from the above discussion is that neither the respondents are members of some land mafia or Qabza group nor they have illegally dispossessed any one from the disputed property. The Act, 2005 was specifically promulgated for curbing the illegal activities of the land mafia/Qabza Group/land grabbers and thus is only applicable to those cases where it is shown that the accused belong to any of the above category i.e. land mafia/Qabza Group/land grabbers and have illegally dispossessed someone to grab his property. The appellant has miserably failed to show that at any point of time he was put into physical possession of the disputed property from where he was dispossessed by the respondents. On the contrary, it has been established by cogent evidence that the respondents are living in the disputed property since 2007. Therefore, the provisions of the Illegal Dispossession Act, 2005 are not attracted to the present case. It may be clarified that the Act, 2005 would come to the rescue of not only the owner of an immovable property but also to the occupier of an immovable property. The dispute between the appellant, Bakht Begum on the one side and the respondents 1 to 5 on the other side clearly is a dispute of civil nature and the same has to be decided by a civil Court having jurisdiction."
7. Admittedly, on the one hand, the complainant has failed to show his possession, while
on the other hand, no concrete evidence has been produced by the complainant from which could establish any connection of the appellants with the land mafia/Qabza mafia and land grabbers, reliance in this regard is placed on the case tilted as, "Muhammad Ibrahim v. The State, (2023 YLR 2691, Lahore) for convenience the relevant portion whereof is reproduced as under:
"13. There is nothing on record which could establish any link of the appellants with land grabbers or Qabza Mafia. The honourable Supreme Court of Pakistan in the above referred case law i.e. "Habibullah v. Abdul Manan" (2012 SCMR 1533) has also held that: -
"In view of the above case -law referred above, if is established that the said law is
applicable only to those accused persons who have the credentials or antecedents of Qabza Group and are involved in illegal activities and belong to the gang of land grabbers or land mafia."
13(sic). Further, during the course of arguments, it is admitted by the complainant that at present, possession of the disputed land is with him and after decreeing of civil suit in his favour, appellants preferred Civil Revision No. 39157 of 2019 which is pending adjudication before this Court. Therefore, at this moment, it is worth to add
here that scope of Illegal Dispossession Act, 2005 is very limited and cases of forcible
dispossession by land mafia or the habitual land grabbers come/fall within such category. The dispute, prima facie, appears to be between co -sharers/co -owners. The
position, being so, brings the case of the appellants out of the purview of Section 3 the Illegal Dispossession Act. I am supported in such a view with the case of
"Habibullah v. Abdul Manan" (2012 SCMR 1533) wherein it is held that: --
'8. Complainant while appearing as P.W. 1 has not stated a single word that the
appellants belong to a Qabza Group and were involved in such activities, so it is the
complainant side who has failed to establish that the appellants belong to Qabza Group or they were land, grabbers. The complainant side has not produced any evidence oral or documentary to establish that the appellants had the credentials or antecedents of being property grabbers. So, it was a dispute between two individuals over immovable property and as per allegation the appellants have taken illegal possession of the property, being rightful owners, from the tenant who has taken the property on rent and committed the default in payment of rent and electribity bills inasmuch as the appellants do not belong to a class of property grabbers or Qabza
Group and no case was made out under Section 3 of Illegal Dispossession Act."
15. It is also noted with grave concern that right of an individual/citizen is to be dealt
with in accordance with law guaranteed under Article 4 of the Constitution of Islamic
Republic of Pakistan, 1973. Under Article 10- A further right to fair trial has been
guaranteed. It is commonly known to everybody that to level an allegation against a person is easy but to rebut the same is a very difficult task. No- doubt, whenever an
individual is aggrieved of an act or omission which constitutes an offence by another
person, he has the right to get penalized the same in accordance with the relevant
provisions provided under the relevant laws but at the same time everybody has the
right to be provided a safeguard against his false implication under any such charges with mala fides. Illegal Dispossession Act, 2005, if seen, was enacted with the object
to protect the lawful owners and occupiers of the immoveable properties from their
illegal and forcible dispossessions by the property grabbers etc. but unfortunately
these provisions are being utilized by certain people with mala fides to achieve their ulterior motives to convert the civil litigation into criminal one. It is thus, as mentioned above, guaranteed under Article 4 read with Article 10- A of the
Constitution of Islamic Republic of Pakistan, 1973 that every person/ individual/citizen be not only dealt with in accordance with law and no action detrimental to the life, liberty, body, reputation or property of any person shall be initiated except in accordance with law as well as he be provided fait trial. The heavy responsibility thus lies on Courts at any stage of the trial to protect the innocent people from their involvement in any such type of litigation either civil or criminal. It is commonly known that due to so many extraneous reasons a very minor litigation either civil or criminal lingers on years and years and innocent people suffer without their being any fault on their part. It has now been settled by the Hon'ble Apex Court of the Country that Court should protect innocent people from unlawful and unjustified involvement in such like cases/litigations. In this respect reliance can be placed on case law titled "Waqar Ali and others v. The State through Prosecutor/Advocate -General, Peshawar and others" (PLD 2011 Supreme Court 181),
in which Hon'ble Supreme Court of Pakistan at page 191 in Para 13 observed as under: --
"Courts which have been authorized to try cases under the Act thus have a responsibility to see that the persons named in the complaint have a case to answer, before they are summoned to face trial. This course, unfortunately has not been followed in the present case. As a result the appellants unnecessarily, have had to face
trouble, expense and disruption in their lives. In this process the time and scarce
resources of the Court have also been wasted and its docket burdened without cause. It may be clarified that the Court may, in the first instance, issue a notice (rather than summons) to the accused person if it requires clarification or in order to ensure that cognizance is justified. "
8. Similar view has also been taken by the Hon'ble Sindh High Court in the case of, Dr.
Zaib -un-Nisa v. Muhammad Shabbir and others, 2025 PCr.LJ 162, for facilitation operating
part thereof is reproduced as below:
"8. Provision of Section 3 of the Illegal Dispossession Act, 2005, is very clear and
unambiguous and its scope is wide enough to cover the class of persons mentioned in the preamble. Therefore, the preamble of the Act cannot restrict its meaning and the Act applies to the dispossession of a person from property by any person including land grabbers, Qabza group, or land mafia.
9. To attract provisions of Section 3 of the Illegal Dispossession Act, 2005, the court is required to examine whether the property was an immovable property; secondly, whether the person was the owner or the property was in his lawful possession; thirdly the accused entered into or upon the property unlawfully; fourthly that such entry was to dispossess i.e. ouster, evict or deriving out of possession against the will of the person in actual possession or to grab i.e. capture, seize suddenly, take greedily or unfairly, or to control i.e. to exercise power or influence or regulate or governor relates to authority over what is not in one's physical possession or to occupy i.e. holding possession, reside in or something. If the act of the accused comes within the meaning of any of the words viz. dispossess, grab, control or occupy on the date when Illegal Dispossession Act, 2005, was promulgated then action can be initiated as
provided under Section 4 of the Illegal Dispossession Act, 2005.
10. The law has also made it clear that a person who is proven guilty shall not be
saved from the punishment for which he may be liable under any other law for the
time being in force. The provisions of section 3(2) are salutary and mandatory. It is to alleviate the suffering and is also an effective deterrent against crime. The Legislature has taken full care to close all doors of any injustice to the parties.
11. Further a complaint under the Illegal Dispossession Act, 2005 cannot be
entertained where the matter of possession of the 7 relevant properties is being
regulated by a civil or revenue Court. There is no cavil to the proposition that if the
offense confines to the provisions of the Illegal Dispossession Act, 2005 then the land grabbers/Qabza Group/land mafia cannot escape punishment as no one can be allowed to take law in his own hands and unlawfully dispossess an owner or lawful occupier
of an immovable property however, in the present case both the parties are at
loggerhead and claim and counterclaims, in such a situation prima facie it cannot be
said at this stage that whether the case falls within the definition of Illegal Dispossession Act, 2005, therefore, at this stage, the proceedings under the said Act cannot be taken into its logical end until and unless it is decided whether the applicant had sold out his land to the private respondent or otherwise as both the parties relied upon certain documents which need to be appreciated by the trial court having plenary jurisdiction. In principle, the Court empowered to take cognizance of an offence under the Act, is required to filter out those complaints which do not disclose the requisite criminal intent. Courts that have been authorized to try cases under the Act, 2005 thus have a responsibility to see that the persons named in the complaint have a case to answer before they are summoned to face trial.
12. Additionally, the Illegal Dispossession Act, 2005 does not apply to run- of-the-
mill cases of alleged dispossession from immoveable properties by ordinary persons having no credentials or antecedents of being property grabbers/Qabza Group/land mafia, i.e. cases of disputes over possession of immovable properties between coowners or co- sharers, between landlords and tenants, between persons claiming
possession based on inheritance, between persons vying for possession based on competing title documents, contractual agreements or revenue record or cases with a background of an on- going private dispute over the relevant property. Further a
complaint under the Illegal Dispossession Act, 2005 cannot be entertained where the matter of possession of relevant property is being regulated by a civil or revenue Court."
9. In view of the above circumstances, the trial Court has wrongly taken the cognizance
of the matter and illegally reached to a wrong conclusion by awarding conviction and sentence to the appellants (accused). The impugned judgement suffers from illegalities and irregularities as the dispute between the parties is of civil nature and does not fall within the purview of illegal Dispossession Act, 2005. The case law refereed by the learned counsel for the complainant are distinguishable from the scenario of the instant appeal.
For the above reasons, the appeal is accepted. The impugned judgement dated 2nd
December 2023 passed by learned Sessions Judge Hub, is set -aside only to the extent of
appellants namely Liaqat Ali son of Muhammad Usman and Noor Muhammad son of Usman,
who are hereby acquitted of the charge. The appellants are on bail; their bail bonds stand discharged after lapse of appeal period.
However, the parties are at liberty to approach the Civil Court of competent
jurisdiction for redressal of their grievance.
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