Summary: Illegal Dispossession Act (XI of 2005)--- ----S. 3---Illegal dispossession---Scope---Petitioner was aggrieved of Trial Court's order whereby his complaint filed under S. 3 of Illegal Dispossession Act, 2005, was dismissed---Validity---Petitioner alleged that after a legal partition of the joint khata, he along with his family members was in possession of a particular land being its owners; that respondents armed with hatchets, clubs and firearm weapons, dispossessed the petitioner from land measuring 08 Kanals 18 Marlas situated in Killa Nos. 21 and 3 Kanals and 09 Marlas in Killa No. 22, total land measuring 12 Kanals 07 Marlas---During the occurrence, both the parties sustained injuries, upon which, respondent No. 2 lodged FIR under Ss. 337-A(iv), 324, 337-L(2), 337-F(vi), 354, 337-A(i), 148 & 149, P.P.C, against the petitioner and seven others, wherein, cross-version of the petitioner's side was also recorded---Petitioner's party was arrested in said FIR and respondent party destroyed their millet and maize crops and illegally took over the possession of 12 Kanals and 07 Marlas land---Held, that on receiving complaint, Court was bound to ascertain the truth and falsehood of the allegation, through inquiry and/or investigation---Inquiry and investigation were not mutually exclusive, Court could resort to both proceedings one after another---Investigation process provide both the complainant and respondents with an opportunity to be heard as part of the process of determining the validity of an allegation---This generally triggers rights of due process under the law on how to address allegations---Thus, that is the reason an investigation is necessary or essential because it is conducted for collection of evidence and parties have full opportunity to produce every sort of material legally admissible or not---In such way issues are narrowed down by investigator with an opinion for and against the commission of offence and Court is loaded with tangible evidence as well---In the present case, Court had neither conducted the inquiry properly nor ordered for investigation, so much so on the day of dispossession FIR was also registered with corresponding cross version but Court did not even bother to summon the police record despite the fact that motive of the occurrence was dispossession---Court had also not attended the fact that possession was handed over to the complainant through warrant of possession issued by a competent authority---Petition was allowed by setting aside the impugned order, with the direction that complaint filed by the petitioner shall be deemed pending and Trial Court after feeling the necessity either of investigation or inquiry, if any, shall proceed with the complaint in due course of law as delineated above. Muhammad Jawad Hamid and another v. Mian Nawaz Sharif and others 2019 PCr.LJ 665; Muhammad Ibrahim and others v. Qudrat Ullah Ruddy and others PLD 1986 Lahore 256; Waqar Ali and others v. The State Through Prosecutor/Advocate-General, Peshawar and others PLD 2011 SC 181; Mst. Inayat Khatoon and others v. Muhammad Ramzan and others 2012 SCMR 229; Taimor Ahmad and another v. Additional Sessions Judge and 9 others 2018 YLR 81; Karamat v. The Queen PLD 1957 Privy Council 107; Muhammad Sadiq and another v. Muhammad Hussain PLD 1952 Azad J&K 13; Bazal Ahmed Sowdagar v. Nur Muhammad PLD 1963 Dacca 852; The State Through The Advocate General, Province of Baluchistan, Quetta v. Jamil Iqbal PLD 1974 Quetta 28; Abdul Rashid v. The State and others 1999 YLR 1298; Sardar Inayatullah Khan v. The State and 3 others 2000 YLR 2803; Ch. Sajid Mehmood v. Inspector General of Police, i.c.t., Islamabad and 3 others 2015 YLR 81; Asfandyar and another v. Kamran and another 2016 SCMR 2084; Jahanzaib Khan v. Special Judge Cns Court, Lahore and another 2018 PCr.LJ 354; Mir Sanad Khan and 6 others v. The State PLD 2014 Baluchistan 113; Allahyar v. The State 1968 PCr.LJ 1526; Anwar Ali Khan and others v. Wahid Bux and others 1991 SCMR 1608; Muhammad Panjal v. Ghulam Shabbir Jat and 6 others 2004 YLR 967 and Abhinandan Jha and ORS. v. Dinesh Mishra AIR 1968 Mad 117 rel. Sajjad Hussain Tarar for the Petitioner. Fakhar Abbas, Deputy Prosecutor General for the State. Nemo for the respondents despite notice. Order Muhammad Amjad Rafiq, J .--- Solicitation is made through this petition for revising the order dated 04.12.2021, passed by the learned Additional Sessions Judge, Chiniot, whereby, complaint of the petitioner filed under section 3 of the Illegal Dispossession Act, 2005 (the Act) was dismissed. 2. Petitioner tabled the fact of the dispossession from his landed property before the Court in terms that out of total land measuring 1642 Kanals in Khata No.117 situated in Mauza Aasian, Tehsil and District Chiniot, he along with his family members is owner of land measuring 68 Kanals 05 Marlas, whereas, respondents Nos.2 to 6 are illegal occupants of land measuring 12 Kanals 07 Marlas in Killa Nos.21 and 22 of square No.28 and due to said reason, Khata No.117 was got partitioned with the consent of both the parties. According to which, 12 WANDA JAAT were prepared and the petitioner along with other family members were allotted WANDA No.07, warrant of possession was issued and after completion of such proceedings and depositing their dues in government treasury by the parties, respective possession was delivered to them on 10.09.2020. Further that on 03.10.2020 at 4:00 p.m., when the petitioner along with Murtaza and Qasim Ali was present in his land, respondents Nos.2 to 6 armed with hatchets, clubs and firearm weapons attracted to the spot, dispossessed him from land measuring 08 Kanals 18 Marlas situated in Killa Nos.21 and 3 Kanals and 09 Marlas in Killa No.22 (total land measuring 12 Kanals 07 Marlas) relating to said WANDA No.07. During the occurrence, both the parties sustained injuries, upon which, respondent No.2 got lodged FIR No.458 dated 03.10.2020 under sections 337-A(iv), 324, 337-L(2), 337-F(vi), 354, 337-A(i), 148, 149, P.P.C. at Police Station Saddar Chiniot against the petitioner and seven others, wherein, cross-version of the petitioner's side was also recorded; petitioners' party was arrested in said FIR and respondents party destroyed their millet and maize crops and illegally took over the possession of 12 Kanals and 07 Marlas land referred above. 3. Learned Counsel for the petitioner states that since 3.10.2020, after dispossession, petitioner has been striving for return of his valuable land, deprivation is soulful and respondents while using delaying tactics have prolonged their illegal occupation which is adding insult to injury and even today, they are not before this Court. Learned counsel further states that learned Additional Sessions Judge requisitioned the revenue report which was based on the position of parties on 08.09.2021 (though dispossession was ante-dated) whereby possession of 4 Kanal and 9 Marala land was shown in the possession of Asia Bibi, respondent No. 5, which prejudiced the mind of learned judge who held that this fact has been concealed from the Court, because neither it was mentioned in the complaint nor in the statements of witnesses, therefore, on this sole ground complaint stood dismissed. On the other hand, learned Deputy Prosecutor General states that learned Judge has not conducted the inquiry within the spirit of section 5 of the Act, and while responding to non-appearance of respondents before this Court, he has referred section 440 of Cr.P.C, stating that in criminal revision proceedings it is only optional with the courts to hear the parties. 4. Heard; record perused. 5. On receiving of complaint, private prosecution regime in vogue responds by recording cursory statements of witnesses by the Court to find out tentatively the commission of any offence. However, Court jurisprudence sometimes requires conducting of an inquiry under section 202, Cr.P.C. with certain parameters including perusal of police record in connected state case. According to case reported as "Muhammad Jawad Hamid and another v. Mian Nawaz Sharif and others" (2019 PCr.LJ 665), it was held as under; "39. Section 202 of the Code bestows vast powers upon the court to ascertain the truth or falsehood of the complaint and in this respect as it could direct any inquiry or investigation and during inquiry it could examine the police file and final reports including report of JIT to come to a definite conclusion, as it is covered under the definition of material and if felt necessary may examine the members of JIT, I.O in a private complaint or any other witness recorded during investigation of said case so that complete picture of the occurrence supported by relevant material must be before him while passing an order under section 204 (for summoning the accused), so that no innocent person should face agony of trial and no culprit should go unpunished." Further in a case reported as "Muhammad Ibrahim and others v. Qudrat Ullah Ruddy and others" (PLD 1986 Lahore 256), it was held; "Looking at the provisions of section 202 from all angles, in the event of an inquiry, the person conducting the inquiry should not only record the evidence of witnesses produced by the complainant, but should also examine the Investigating Officer, or, in the alternative, call for and peruse the Ziminis...." 6. It has been learnt that Courts while dealing with prosecution of complaint under Illegal Dispossession Act, 2005 follow a routine pattern to record the cursory statements of witnesses, ask for police comments and then make a mind to issue or decline process to the accused persons. Offences under the Act are non-cognizable, no FIR can be registered, and filing of a direct complaint is the remedy, therefore, if the offence seems not committed, Court is not bound to order for investigation as held by Supreme Court in a case reported as "Waqar Ali and others v. The State Through Prosecutor/ Advocate-General, Peshawar and others" (PLD 2011 SC 181), but if the commission of offence is apparent from the record, Courts must conduct an exhaustive inquiry or order for an investigation to get the relevant material collected for and against the commission of alleged offence, and should not go for trial mere on the basis of cursory statements or documents uncertified. Supreme Court of Pakistan in case reported as "Mst. Inayat Khatoon and others v. Muhammad Ramzan and others" (2012 SCMR 229) has held that trial of an accused under Illegal Dispossession Act, 2005 cannot be equated as trial in a complaint under section 190 of Cr.P.C. It is a special law may override the provisions of Cr.P.C, therefore, Court may order for investigation. That is the reason in year 2017, legislator felt the need for conducting of investigation and inquiry one after another and made changes in section 5 of the Act which is reproduced for reference; 5. Investigation and procedure. (1) Upon a complaint the Court may direct the officer-in-charge of a police station to investigate and complete the investigation and forward the same within fifteen days to the Court: Provided the Court may extend the time within which such report is to be forwarded in case where good reasons are shown for not doing so within the time specified in this subsection: Provided further that whenever a local inquiry is necessary for the purpose of this Act, the Court may direct a Magistrate or a revenue officer in the district to make inquiry and submit report within a period as may be specified by the Court. The report of the Magistrate or revenue officer, as the case may be, shall be construed as evidence in this case. (2). On taking cognizance of a case, the Court shall proceed with the trial from day to day and shall decide the case within sixty days and for any delay, sufficient reasons shall be recorded. (3). The Court shall not adjourn the trial for any purpose unless such adjournment is, in its opinion, necessary in the interest of justice and no adjournment shall in any case be granted for more than seven days. (4) On conclusion of the trial, if the complaint is found to be false, frivolous or vexatious, the Court may award compensatory cost to the person complained against which may extend to five hundred thousand rupees. As object of the Act is to protect the rights of owner or lawful occupier, therefore, regime of law must be clearly understood to give a prompt response against dispossession, grabbing, controlling or occupying of the property without lawful authority. Spirit of above section requires that on examining the complaint and attached documents, Court may direct officer incharge of police station to investigate and complete the investigation within given or extended period; which means that on receiving such direction by officer incharge of police station, chapter 25 of Police Rules, 1934 relating to power of police officers to investigate becomes operative and it shall be followed to observe all the processes given therein including recording of statements under section 161, Cr.P.C. of witnesses other than those whose cursory statements have already been recorded, if any, plea of accused, inspection of disputed site with spot recoveries if any, preparation of site plan or seeking technical assistance by any expert (revenue, settlement or consolidation officer) after obtaining revenue record and preventing overt act from any side or further dispute except power to arrest the accused without permission by the Court because offence under section 3 of the Act is non-cognizable and Court is equipped with power to direct arrest of offenders as enunciated under subsections (2) and (3) of Section 4 of the Act. 7. Police can investigate the non-cognizable case on direction by Court in the same manner as meant for investigation of cognizable case. Part of relevant provision (Rule 25.11 of Police Rules, 1934) is reproduced as under; 25.11. Investigation in non-cognizable cases. - (1) No police officer shall investigate a non-cognizable offence unless ordered to do so by a competent magistrate under Sections 196-B or 202, Criminal Procedure Code. (2) When an investigation in a non-cognizable case is thus ordered and is taken up by the police under Section 155(3), Criminal Procedure Code, it must be carried through in the same manner as if the offence were cognizable, except that no arrest shall be made without a warrant. In every such case a police officer making an investigation shall day by day enter his proceedings in a case diary and submit them daily as prescribed for cognizable cases in Police Rule 25.53. Case diaries shall be submitted through the gazetted officer concerned to the court which has ordered investigation. No copies shall be prepared or kept by the police. (Emphasis is supplied) The above rule gives a clear indication that during investigation day to day proceedings shall be entered in case diaries which shall be dispatched to the Court and no record of such diaries shall be kept by the police. Rule 25.53 (2) of Police Rules, 1934 requires that case diaries shall be as brief as possible; shall not be swollen with lengthy explanations and theories; shall be written either in English or in simple Urdu and only such incidents of the investigation shall be included as have a bearing on the case. Of course, on close of investigation, all the outcomes suggested in Rule 25.57 of Police Rules, 1934 shall be forwarded to the Court in the form of a report under section 173, of Cr.P.C., and then Court may decide to issue process against the accused or dismiss the complaint as the case may be. It has been held in case reported as "Taimor Ahmad and another v. Additional Sessions Judge and 9 others" (2018 YLR 81) that section 4 of the Act can be equated with section 154 of Cr.P.C. and report under section 5(1) of the Act with the report under section 173 Cr.P.C. With a respectful dissent to above observation, it is held that section 4 can be equated with section 155 of Cr.P.C. 8. Investigation though provides material for trial yet its admissibility is always subject to rules of evidence and opinion of Court, therefore, legislator through section 5 of the Act has also taken care of this situation by introducing a concept of local inquiry which further empowers the Court that whenever a local inquiry is necessary for the purpose of this Act, the Court may direct a Magistrate or a revenue officer in the district to make inquiry and submit report within a period specified by the Court. Purpose of Act is as follows; "Whereas it is expedient to protect the lawful owners and occupiers of immovable properties from their illegal or forcible dispossession therefrom by the property grabbers." Thus, when the circumstances of the case are of the nature that Court deems it appropriate to obtain evidence, it shall order for such inquiry because the report of the Magistrate or revenue officer, as the case may be, shall be construed as evidence in this case as per second proviso of section 5(1) of the Act, therefore, appearance of Magistrate or revenue officer before the Court as witness is not necessary. It is the like inquiry as conducted on the direction of Sessions Judge by the Magistrate or any other person as mentioned in section 148 of Cr.P.C. 9. Section 9 of the Act says that unless otherwise provided the provisions of the Code of Criminal Procedure, 1898 (V of 1898), shall apply to proceedings under this Act; therefore, to better appreciate the situation at site Court can also go for local inspection as well at the stage of preliminary inquiry or during the trial. The relevant provision of Cr.P.C. is as follows; 539-B. Local inspection: (1) Any Judge or Magistrate may at any stage of any inquiry, trial or other proceeding, after due notice to the parties, visit and inspect any place in which an offence is alleged to have been committed, or any other place which it is in his opinion necessary to view for the purpose of properly appreciating the evidence, given at such inquiry or trial and shall without unnecessary delay record a memorandum of any relevant facts, observed at such inspection. (2) Such memorandum shall form part of the record of the case if the Public Prosecutor, complainant or accused so desires, a copy of the memorandum shall be furnished to him free of cost. The practice of local inspection is approved by the Superior Courts and its evidentiary value is subject to the principles laid down in following cases; "Judgment of Full Bench reported as "Karamat v. The Queen" (PLD 1957 Privy Council 107): "Muhammad Sadiq and another v. Muhammad Hussain" (PLD 1952 Azad J&K 13) "Bazal Ahmed Sowdagar v. Nur Muhammad" (PLD 1963 Dacca 852): "The State Through The Advocate General, Province of Baluchistan, Quetta v. Jamil Iqbal" (PLD 1974 Quetta 28): "Abdul Rashid v. The State and others" (1999 YLR 1298 FSC): "Sardar Inayatullah Khan v. The State and 3 others" (2000 YLR 2803): "Ch. Sajid Mehmood v. inspector General of Police, i.c.t., Islamabad and 3 others" (2015 YLR 81): "Asfandyar and another v. Kamran and another" (2016 SCMR 2084) and "Jahanzaib Khan v. Special Judge Cns Court, Lahore and another" (2018 P Cr. L J 354)." 10. On receiving complaint, Court is bound to ascertain the truth and falsehood of the allegation, through inquiry and/or investigation. Inquiry and investigation are not mutually exclusive, Court can resort to both proceedings one after another. Let's see what is an inquiry and investigation, and when they be resorted to; When Inquiry may be conducted An inquiry is made in order to determine the truth or falsity of a certain fact before an accused is charged with an offence. Object of an inquiry is to determine the truth or falsity of certain facts in order to take further action thereon; reliance is placed on case reported as "Mir Sanad Khan and 6 others v. The State" [PLD 2014 Baluchistan 113]. An inquiry may start with shadowy beginning. During the inquiry, accused can be given opportunity to submit his stance and it would not be an illegality. Case reported as "Allahyar v. The State" [1968 PCr.LJ 1526] is referred. Scope of Section 202 of Cr.P.C. is to hold a preliminary inquiry and it does not contemplate that a notice be issued to the accused person before issuing a process but If the Court holding such inquiry issues a notice to the accused before issuing process, it would not vitiate the inquiry. Reliance is placed on cases reported as "Anwar Ali Khan and others v. Wahid Bux and others" [1991 SCMR 1608] and "Muhammad Panjal v. Ghulam Shabbir Jat and 6 others" [2004 YLR 967 (LHR)]. In an inquiry, Court has to ascertain the truth or falsehood of the complaint which means that it would attend both aspects i.e., truth and falsehood. When investigation may be conducted Investigation starts when a police officer forms a definite opinion that there are grounds for investigation of a crime. Reliance is placed on case reported as "Abhinandan Jha and others v. Dinesh Mishra" [AIR 1968 Mad 117] and it is meant for collection of evidence. On the similar principles, when any complaint is received by the Court, it starts inquiring as to ascertain the truth or falsity of facts contained therein; if, it comes to the conclusion that complaint is based on truth and an offence appears to have been committed, and sufficient material is available to proceed with the trial, it issues process against the accused; but if it has no sufficient material or evidence, it can order an investigation for the purpose of collection of evidence. Court can direct inquiry or investigation one after another and its necessity can be summarized by explaining some situations in an inquiry and need for investigation thereafter, it is as follows; What is an inquiry? An inquiry is the process of reviewing an allegation to determine; 1. whether the allegation is responsible; 2. the particular law or laws that may have been breached; and 3. whether an investigation is warranted based on the information provided in the allegation. Below is a table describing examples of possible outcomes of an inquiry; Situation Outcome If the allegation is not responsible. The allegation is dismissed and the matter concludes at inquiry. If the allegation is responsible but a breach of law is not substantiated. The allegation is dismissed and the matter concludes at inquiry. If a breach is substantiated, and the respondent accepts responsibility, and further investigation would not uncover any new information pertinent to the matter. The matter concludes at inquiry. If a breach is substantiated but the respondent does not accept responsibility. An investigation is initiated. If any issues identified through the inquiry warrant an investigation (e.g., other individuals in addition to the respondent involved in the breach; other possible breaches suspected). An investigation is initiated. What is an investigation? An investigation is a systematic process, conducted by an authorized person for the purpose of determining the validity of an allegation. An investigation involves collecting and examining any evidence related to the allegation and making a decision as to whether a breach of law has occurred. Investigation must be conducted when: 1. the inquiry has not established whether or not a breach of law has occurred; 2. a breach is substantiated at the inquiry stage but the respondent denies/contests responsibility for the breach; or 3. additional issues are identified through the inquiry. The investigation process provides both complainant and respondents with an opportunity to be heard as part of the process of determining the validity of an allegation. This generally triggers rights of due process under the law on how to address allegations. That is the reason an investigation is necessary or essential because it is conducted for collection of evidence and parties have full opportunity to produce every sort of material legally admissible or not. In this way issues are narrow down by investigator with an opinion for and against the commission of offence and Court is loaded with tangible evidence as well. 11. In the present case, Court has neither conducted the inquiry properly nor ordered for investigation, so much so on the day of dispossession an FIR was also registered with corresponding cross version but Court did not even bother to summon the police record despite the fact that motive of the occurrence was dispossession. Court has also not attended the fact that possession was handed over to the complainant through warrant of possession issued by a competent authority, therefore, order impugned is set aside, complaint filed by the petitioner shall be deemed pending and learned lower Court after feeling the necessity either of investigation or inquiry, if any shall proceed with the complaint in due course of law as delineated above. JK/N-19/L Case remanded.

Summary: Sales Tax Act (VII of 1990)--- ----S. 46---Civil Courts Ordinance (II of 1962), S. 7---Civil Procedure Code (V of 1908), S. 9---Suit before Single Bench of the High Court against the tax authorities, filing of---Alternate remedy, availability of---Plaintiff (taxpayer) filed present suit against the suspension of its Sales Tax Registration---Contention of the plaintiff was that despite the issuance of pre-suspension notice no opportunity was provided---Validity---Said contention appeared to be misconceived as the requirement of law had been complied with, whereas, the plaintiff / petitioner ought to have availed further remedy in accordance with law including but not limited to S. 46 of the Sales Tax Act, 1990---High Court has to exercise its original side jurisdiction sparingly and with caution, it may still take cognizance of any suit arising out of an action/order of the tax authorities/Customs Officers, however, such jurisdiction must be sparingly exercised by the Single Bench---High Court is not required to mandatorily exercise such jurisdiction in tax matters on the Original Side of the High Court in terms of S. 9 of Civil Procedure Code, 1908, read with S. 7 of the Civil Courts Ordinance, 1962---Jurisdiction vested in the High Court specially in tax / revenue matters is not to be exercised in every run-of-the-mill case---Thus, the plaintiff ought to have availed the alternate remedy---Suit, being not maintainable and misconceived, was dismissed. Saleem Ahmed v. Federation of Pakistan 2021 PTD 1813 and Searle IV Solution (Pvt.) Ltd and others v. Federation of Pakistan and others 2018 SCMR 1444 ref. Danial Muzaffar for Plaintiff. Kashmif Nazeer, Assistant Attorney General. Zulfiqar Ali Khan Jillani for Respondents.

Summary: (a) Sales Tax Act (VII of 1990)--- ----S. 11---Civil Procedure Code (V of 1908), S. 9---Issuance of Show-Cause Notice by Tax Authorities, challenging of----Civil suit before Single Bench of the High Court---Maintainability---Order of the Court, non-compliance of---Effect---Show-Cause Notice was issued to the Registered Person / Company under Ss. 11(2) & 11(3) of the Sales Tax Act, 1990, whereby, it had been alleged that it was liable to pay an amount (of Rs.59,712,503/-) and as to why the same might not be assessed against it---Registered person / Company (plaintiff) has impugned the said Show-Cause Notice by way of filing civil suit before the Single Bench of the High Court against the Tax Authorities (defendants)---High Court directed the plaintiff to deposit 50% of amount being claimed by the defendants in view of the case titled Searle IV Solution (Pvt.) Ltd. v. Federation of Pakistan reported as 2018 SCMR 1444 ('the Searle IV Solution case')---Plaintiff did not comply with said directions/order contenting that since no amount has been calculated by the Tax Authorities , Searle IV Solution case would not apply---Validity---Contention of the plaintiff was misconceived as otherwise it would negate the intent/dicta laid down by the Supreme Court in the Searle IV Solution case---Suit filed by registered person, being non-maintainable, was dismissed. Searle IV Solution (Pvt.) Ltd. and others v. Federation of Pakistan and others 2018 SCMR 1444 ref. (b) Civil Courts Ordinance (II of 1962)--- ----S. 7---Civil Procedure Code (V of 1908), S. 9---Sales Tax Act (VII of 1990), S. 11---Issuance of Show-Cause Notice by the Tax Authorities, challenging of----Civil suit before the Single Bench of the High Court---Maintainability---Original Civil jurisdiction of High Court, exercising of---Show-Cause Notice was issued to the Registered Person / Company under Ss. 11(2) & 11 (3) of the Sales Tax Act, 1990, whereby, it had been alleged that it was liable to pay an amount (of Rs.59,712,503/-) and as to why the same might not be assessed against it---Registered person / Company (plaintiff) impugned said Show-Cause Notice by way of filing civil suit before the Single Bench of the High Court against the Tax Authorities (defendants)---Defendants raised objection regarding maintainability of civil suit before the Single Bench of the High Court---Plea of the plaintiff was that its suit was maintainable in view of case titled Searle IV Solution (Pvt.) Ltd. v. Federation of Pakistan reported as 2018 SCMR 1444 ('the Searle IV Solution case')---Validity---In (Para 17) of the said judgment / the Searle IV Solution case, it had been observed that "it is directed, that while the Single Bench of the Sindh High Court at Karachi may still take cognizance of any suit arising out of an action/order of the tax authorities/Customs Officers, such jurisdiction must be sparingly exercised by the Single Bench"---Therefore, in view of such position present (Single Bench of High Court) was not required to mandatorily exercise such jurisdiction in tax matters on the Original Side of High Court in terms of S. 9 Civil Procedure Code, 1908 read with S. 7 of the Civil Courts Ordinance, 1962---Suit filed by registered person, being non- maintainable, was dismissed. Searle IV Solution (Pvt.) Ltd. and others v. Federation of Pakistan and others 2018 SCMR 1444 ref. (c) Sales Tax Act (VII of 1990)--- ----S. 11---Civil Procedure Code (V of 1908), S. 9---Issuance of Show Cause Notice by the Tax Authorities, challenging of----Civil suit before the Single Bench of the High Court---Maintainability---Original Civil jurisdiction of High Court---Discretion of the High Court---Scope---Show-Cause Notice was issued to the Registered Person / Company under S. 11(2) & 11(3) of the Sales Tax Act, 1990, whereby, it had been alleged that it was liable to pay an amount (of Rs.59,712,503/-) and as to why the same might not be assessed against it---Registered Person / Company (plaintiff) impugned said Show-Cause Notice by way of filing civil suit before the Single Bench of the High Court against the Tax Authorities (defendants)---Defendants raised objection regarding maintainability of civil suit before the Single Bench of the High Court---Validity---If at all a suit was maintainable, even then a direct challenge to a Show-Cause Notice without availing the remedy before the Adjudicating and the Appellate Authority was deprecated by the Courts---Present (Single Bench of High Court) was not required to decide the controversy in hand, which apparently related to the alleged denial of input tax claimed by the plaintiff, if any, whereas admittedly it was not a case of any jurisdictional defect or the competency of the concerned officer---If at all, even if a legal question was raised, it was not mandatory upon the Court to entertain a Civil Suit in all run of the mill cases; rather, the discretion vested in the Court had to be exercised with restraint and not as a matter of routine---Therefore, a mere show-cause notice by itself is not a ground to invoke Original Civil jurisdiction of High Court, and the plaintiff ought to have approached the defendants (Tax Authorities) for raising all such legal issues---Abstinence from interference at the stage of issuance of Show-Cause Notice in order to relegate the parties to the proceedings before the concerned Authorities must be the normal rule---Suit filed by registered person, being non- maintainable, was dismissed. Commissioner Inland Revenue v. Jahangir Khan Tareen 2022 SCMR 92 and Indus Motor Company Limited v. Pakistan Order dated 13.2.2023 in C.P. No. D-5003/2019 ref. Shaukat Hayat for Plaintiff. Ghulam Asghar Pathan, Syed Ahsan Ali Shah, Mukesh Kumar Khatri for Defendants along with Mansoor Wisal, DCIR. Kashif Nazeer, Assistant Attorney General.

Summary: Malicious prosecution--- ----Damages---Simpliciter and honorable acquittals---Distinction---Respondents / plaintiffs sought recovery of damages from appellant / defendant for malicious prosecution---Judge in Chambers of High Court as Trial Court decreed the suit in favour of respondents / plaintiffs---Plea raised by appellant / defendant was that acquittal of respondents / plaintiffs was on the basis of benefit of doubt and was not an honorable acquittal---Validity---Both terms "simpliciter acquittal" and "honourable acquittal" refer to situations where accused is acquitted of charges---Simpliciter acquittal is a basic legal determination based on lack of evidence, whereas honorable acquittal carries a more positive connotation, potentially reflecting broader vindication of innocence or character of accused---Initiation of criminal proceedings despite full and final settlement of appellant / defendant's claim and lack of subsequent legal actions by appellant / defendant after passing of acquittal judgment were significant indicators of malicious intent---Division Bench of High Court declined to interfere in judgment and decree passed by Trial Court (Judge in Chambers of High Court)---Intra Court Appeal was dismissed, in circumstances. Abdul Majeed Khan v. Tawseen Abdul Haleem 2012 CLD 6; Muhammad Akram v. Farman Bi PLD 1990 SC 28; Abdul Rauf v. Abdul Razaq PLD 1994 SC 476; Muhammad Yousaf v. Abdul Qayyum PLD 2016 SC 478; Niaz v. Abdul Sattar PLD 2006 SC 432; Rehana Jadoon v. Arab Khan 2019 MLD 337; Dr. Muhammad Islam v. Government of NWFP 1998 SCMR 1993 and Faraz Naveed v. District Police Officer Gujrat 2022 SCMR 1770 rel. Feroz Qadir Attari for Appellant. Mahmood Anwar Baloch for Respondents. Date of hearing: 21st May, 2024. Judgment Sana Akram Minhas, J .--- This High Court Appeal impugns a judgment and decree dated 7.11.2022 and 16.1.2023 respectively ("Impugned Judgment") of a learned Single Judge in Suit No.434/2019 (Imtiaz Ahmed and another v. Muhammad Hussain) ("Suit 434"). The Appeal arises from a Suit for "Damages", initiated on 5.3.2019 by Respondents (Plaintiffs in Suit 434) against Appellant (Defendant in Suit 434). Nature of Claim 2. By way of Suit 434, Respondents brought an action against Appellant seeking substantial compensation for damages resulting from what they claimed to be a malicious prosecution. The primary claims in the Plaint included: ? Rs.16,720,000/- for lost salary ? Rs.20 million for general damages ? An additional Rs.20 million for Respondent No.2 due to suffering caused by Appellant ? Costs of Suit 434 3. Central Allegations and Defence In Suit 434 Claims of Respondents (as Plaintiffs in Suit 434): i) As per Plaint, Respondent No.1, residing in the UAE with his family and working as an Administration Manager with a monthly salary of Dirhams 20,000/- (approximately Rs.760,000/-), while on a visit was arrested at Karachi Airport on 18.6.2016 by the Federal Investigation Agency ("FIA") due to a criminal case lodged by Appellant. This arrest led to Respondent No.1's incarceration in Karachi Central Jail (who was admitted to bail after 40 days) and subsequent loss of his job. The arrest was linked to FIR No.56/2011 dated 2.12.2011 ("FIR") (Exhibit PW-1/2), resulting in significant financial and reputational damage to Respondent No.1 and his family. The Appellant's false case aimed to deprive Respondent No.1 of his substantial foreign income. ii) Respondent No.2 (mother of Respondent No.1), experienced immense emotional distress and health issues due to the situation, and the children's education in UAE was adversely impacted leading to its cessation. iii) Respondent No.1 was ultimately acquitted vide judgment dated 26.3.2018 ("Acquittal Judgment") (Exhibit No.PW-1/9), in the criminal case initiated by Appellant, with the court (viz. Special Court (Offences in Banks), Sindh at Karachi) citing insufficient evidence against him. Thereafter, Respondents instituted Suit 534. Defence of Appellant (as Defendant in Suit 434): i) Appellant justified the criminal complaint, alleging Respondent No.1 fraudulently withdrew Rs.785,000/- from Appellant's United Bank Limited ("UBL") account. ii) Appellant emphasized that Respondent No.1's acquittal was attributed to benefit of the doubt rather than an honourable or clear exoneration, thus contesting the claim of malicious prosecution. Issues Framed and Evidence Recorded 4. Issues were settled and the Evidence Commissioner was appointed on 12.11.2020, whereafter evidence was recorded in Suit 434. Impugned Judgment 5. The Single Judge concluded that Respondent No.1 was maliciously prosecuted, causing significant mental and financial harm. Therefore, Appellant was held liable to pay Rs.3 million (Rupees Three Million) as general damages with 10% markup from Suit 434's initiation date until realization. Additionally, Respondents were found entitled to the costs of Suit 434. The Impugned Judgment acknowledged the impact on Respondents reputation and the undue suffering caused by Appellant's actions. Respective Arguments 6. In their remarkably brief submissions before us, both learned Counsel merely referenced and reiterated the arguments previously advanced by them before the Single Judge, as documented in the Impugned Judgment. Point For Determination 7. The submissions from each Counsel have been duly considered, and we have examined the records available to us. 8. The central point for determination is whether Respondent No.1's acquittal, attributed to the benefit of the doubt rather than an honourable or clear exoneration, precludes the claim of malicious prosecution. Legal Principles Governing Malicious Prosecution 9. A person who is maliciously prosecuted on a criminal charge can sue in tort for damages if the prosecution ends in his acquittal. Elements of Malicious Prosecution 10. The determination of a claim for malicious prosecution hinges on demonstrating the following elements: i) The prosecution of the plaintiff by the defendant; ii) The prosecution was initiated with malice and not to further the ends of justice; iii) The prosecution lacked reasonable and probable cause; iv) The prosecution must have ended in favour of the person proceeded against; v) Damage was suffered by the party proceeded against due to the prosecution (such as reputational harm, emotional distress, or financial loss). Establishing malice and the absence of reasonable and probable cause are crucial elements i.e. the nub, for a plaintiff to succeed in his claim. Breaking these down: (a) Malice refers to a defendant's state of mind and can be inferred from the circumstantial evidence when initiating the prosecution. It implies that the defendant acted with ill will, spite or improper motives, rather than a genuine belief in the guilt of the accused. (b) Absence of reasonable and probable cause means that the prosecution lacked a reasonable basis or justification. Reasonable and probable cause refers to a reasonable ground to suspect that the person accused is guilty of the alleged offence. It means that, given certain assumed true circumstances, a reasonable and prudent person would conclude that the accused is likely guilty of the alleged crime. While proving the absence of reasonable and probable cause is necessary, it alone is insufficient to establish malice. For instance, if an accused is acquitted based on the benefit of the doubt, it does not automatically indicate malicious prosecution. Absence of probable cause suggests the prosecution was unjustified but does not conclusively prove malicious intent. It can, however, serve as evidence that the prosecution was initiated out of spite or improper motives rather than a genuine belief in guilt. Thus, in a claim of malicious prosecution, the plaintiff must demonstrate both the absence of reasonable and probable cause and the presence of malice to prevail in court. Ensuring Justice and Preventing Abuse 11. Emphasizing both elements ensures that only truly unjust prosecutions driven by wrongful motives are classified as malicious. This dual requirement protects against wrongful prosecution while also preventing frivolous claims where the prosecutor genuinely believed in the accused's guilt, even if incorrectly. Simpliciter Acquittal Not Honourable Acquittal 12. Although both terms refer to situations where the accused is acquitted of charges, a simpliciter acquittal is a basic legal determination based on lack of evidence, whereas an honourable acquittal carries a more positive connotation, potentially reflecting a broader vindication of the accused's innocence or character. 13. The Impugned Judgment has repelled Appellant's contention that since Respondent No.1's acquittal was based on benefit of the doubt and was not an "honourable acquittal", hence Respondent No.1 could not maintain a suit for malicious prosecution. In doing so, it has cited the Supreme Court's determination in Dr. Muhammad Islam v. Government of NWFP, wherein it was concluded: We are inclined to uphold the above view inasmuch as all acquittals even if these are based on benefit of doubt are honourable for the reason that the prosecution has not succeeded to prove their cases against the accused on the strength of evidence of unimpeachable character. It may be noted that there are cases in which the judgments are recorded on the basis of compromise between the parties and the accused are acquitted in consequence thereof. What shall he the nature of such acquittals? All acquittals are certainly honourable. There can be no acquittals, which may be said to be dishonourable. The law has not drawn any distinction between these types of acquittals. 14. The decision in Dr. Muhammad Islam (supra) was recently referenced by the Supreme Court in Faraz Naveed v. District Police Officer Gujrat in the context of reinstatement of a dismissed employee following acquittal, asserting that the employer retains the discretion to assess and evaluate whether to reinstate the acquitted employee. Appraisal of Appellant's Evidence and Key Admissions In His Cross-Examination 15. The Impugned Judgment highlights the following salient points: i) Appellant claimed that Respondent No.1 illegally withdrew amounts aggregating to Rs.785,000/- through ATM card from Appellant's UBL account. However, Appellant admitted that he did not produce any bank statement to establish the presence of Rs.785,000/- in his account. ii) Appellant admitted that Respondent No.1 had a permanent employment visa of Dubai. iii) Appellant conceded to receiving Rs.44,000/- from Respondent No.1 and Rs.450,000/- from UBL via cheque. This restitution was confirmed through a signed affidavit and accepted as a full and final settlement of Appellant's claim. Despite this, Appellant proceeded to file the criminal case against Respondent No.1. iv) The Acquittal Judgment (in its paragraph 13) concludes that: (a) While the Complainant (Appellant) alleged that he identified Respondent No.1 from the Closed-Circuit Television (CCTV) show to him, no such footage capturing Respondent No.1's withdrawal from ATM was produced before the Special Court. (b) No substantial evidence has been presented against the accused to link him to the commission of the offence, apart from the mere words of the Complainant. Significantly, the Acquittal Judgment was not challenged by Appellant before any forum and it, thus, attained finality. 16. When confronted with the aforementioned observations in the Impugned Judgment and given the opportunity to refute them by identifying any mis-reading or non-reading of evidence, Appellant's Counsel was unable to do so. 17. Taking the aforementioned legal standards into account (discussed in paragraphs 9 to 14 above) in relation to the present case, the initiation of criminal proceedings despite the full and final settlement of Appellant's claim and the lack of subsequent legal actions by Appellant after passing of the Acquittal Judgment are significant indicators of malicious intent. Though the Impugned Judgment did not raise any concerns regarding delay in registering the FIR by Appellant, we find it disconcerting that it was lodged on 2.12.2011 with the FIA and the date and occurrence of incident are mentioned as being between 2007 to 2009. Conclusion 18. Considering the above circumstances, we hereby uphold the learned Single Judge's Impugned Judgment dated 7.3.2018 and Decree dated 20.3.2018 passed in Suit 534/2008, as sound and impervious to challenge. The instant High Court Appeal is dismissed with pending application(s), with costs of Rs.35,000/-, which Appellant shall pay to Respondents within a period of twenty (20) days. MH/M-62/Sindh Appeal dismissed.

Summary: Illegal Dispossession Act (XI of 2005)--- ----Ss. 3 & 8---Criminal Procedure Code (V of 1898), S. 345---Illegal dispossession---Restoration of possession---Appreciation of evidence---Compounding of offence---Scope---Accused was charged for dispossessing the complainant on show of force from his land and also made aerial firing---No doubt the legislature had not provided any specific section/provision in the Illegal Dispossession Act, 2005, for compounding the offences; however, S.9 of the Act, 2005, provides that unless otherwise provided in the Illegal Dispossession Act, 2005, the provisions contained under the scheme of Criminal Procedure Code, 1898, shall be applicable to all the proceedings under the Act ibid---Therefore, the compromise arrived at between the parties under the Act ibid should be treated as the compromise within the meaning of S.345, Cr.P.C.---It was an admitted fact that both the parties had amicably settled all their differences and had agreed to pass rest of their lives in peace, tranquility and harmony---Non-compoundability of a particular offence under any section of the enactment should not be read in isolation but it should be read in the background of each criminal case and beneficial interpretation should be given to it---When both parties had earnestly decided to live in peace and tranquility by ignoring and settling all their past differences, then for the sake of their welfare in general and betterment of socio-economic conditions of society as a whole, it would be prime need of the time to accept the compromise and consequently acquit the appellant from the charges---Parties had filed joint applications for compromise, besides the possession of the subject property, had also been handed over to the complainant, therefore, in order to maintain peace and tranquility between the parties, propriety of law demanded to entertain the compromise application---Appeal was allowed, in circumstances. Akhter Hussain v. SHO Sachal Karachi and 2 others 2020 PCr.LJ Note 20 ref. Ijaz and another v. Mst. Manadia PLD 2016 Pesh. 26; The State v. Irfanullah Qazi 2007 MLD 1269; Abdul Wali (Wali Khan) and 3 others v. Abdul Rashid Arif and 2 others 2013 PCr.LJ 767; Abdul Wahab and 3 others v. Additional Sessions Judge, Okara and 3 others PLD 2012 Lah. 305; Hussain Bux and others v. The State PLD 2003 Karachi 127; Shahid v. The State and another 2017 YLR note 81 Lahore and Ali Raza and another v. The State and another PLD 2013 Lahore 651 rel. Appellant present in person (on bail) and Shoukat Ali Kaka Advocate is called absent. Shahzado Saleem, Additional Prosecutor General for the State. Complainant (called absent). Date of hearing: 27th June, 2024. Judgment Muhammad Saleem Jessar, J .--- By means of instant Criminal Appeal, the appellant has assailed the Judgment dated 15-10-2022 passed by learned Sessions Judge, Sanghar, vide Sessions Case No.109/ 2022, being outcome of complaint under 3(2) and 8 of Illegal Dispossession Act, 2005, whereby the trial court, after full dressed trial, finding the appellant to be guilty of the offence under section 3(2) of the Illegal Dispossession Act, 2005, convicted him for said offence and sentenced him to undergo R.I for three (03) years and to pay fine of Rs.10,000/= (Rupees Ten Thousand Only), In case of non-payment of fine, the appellant was ordered to suffer S.I for three months more. It was further ordered that appellant shall hand over possession of the area in dispute to the complainant; in case of non-delivery of possession as ordered above, same shall be handed over through Mukhtiarkar concerned with the help of police. 2. The brief facts of the complaint filed by complainant Merajuddin under sections 3(2) and 8 of Illegal Dispossession Act, 2005, before trial court are that his agricultural land admeasuring 4-00 acres bearing Survey No.402 situated in deh / Tappo Sinjhoro, Taluka Sinjhoro, District Sanghar, is mutated in Revenue record of rights and has been entered under entry No 315/ 252 dated 28-06-1994 in village form VII-B and since then he is in physical and cultivating possession of said land. On 30-11-2021 at 5.00 p.m he along with his Haries namely Abbas son of Sharif and Iqbal son of Bashir Ahmed was present at the land, in the meantime accused duly armed with deadly weapon criminally trespassed his land, used filthy language and by making aerial firing dispossessed him on show of force without any right, title and character. Then he approached to nek-mards so also to police but to no avail, hence he filed instant complaint. 3. The trial court after calling reports from Mukhtiarkar and SHO concerned brought the complaint on record vide order dated 26-02-2022. Formal Charge was framed against the appellant/ accused at Ex.02, to which he pleaded not guilty and claimed trial vide his plea at Ex.03. In order to prove its Charge, complainant examined in all four (04) witnesses at Exs.04 to 07, including himself, who produced and recognized certain documents, then learned counsel for the complainant closed his side vide statement at Ex.08. Statement of accused, as required under Section 342, Cr.P.C was recorded at Ex.09 wherein he denied the allegations levelled by complainant against him. He produced original sale agreement dated 08-12-2017 executed by complainant in his favour and original lease agreement executed by complainant in favour of one Muhammad Akber (Zamindar of accused) at Ex.09-A and Ex.09/B; however, neither he examined himself on Oath nor produced any witness in his defense. Finally learned trial Court after hearing the arguments of learned counsel for the parties, convicted and sentenced present appellant, as mentioned supra. 4. The appellant present before the court submits that due to compromise and handing over possession of disputed property to complainant, he and complainant had already submitted applications under sections 345(2) and 345(6), Cr.P.C vide M.A.No.8631/ 2023 and M.A.No.8632/ 2023 dated 29-08-2023. He, therefore submits, in the light of judgment passed by this court in case of Akhter Hussain v. SHO Sachal Karachi and 2 others (2020 P Cr L J Note 20) and un-reported order dated 02-12-2022 passed in Criminal Appeal No.S-46/ 2016 Re: Khamiso Khan alias Riaz v. Babar Aftab Siyal and another, his appeal may be allowed and he may be acquitted from the charge by way of compromise. 5. Learned A.P.G, looking to the circumstances of case, has recorded his no objection. 6. Pursuant to notice issued by this court, Mr. Amjad Saeed Dahiri, Mukhtiarkar (Revenue) Taluka Sinjhoro, appeared in person and filed compliance report dated 26-06-2024 along with statement of complainant dated 05-11-2022; it reveals that in compliance of directions contained under impugned judgment, possession of disputed property was handed over to complainant in year 2022. 7. The appellant has mainly pressed for his acquittal on the basis of compromise arrived at between him and complainant, therefore, I would like to deal with the maintainability of compromise applications in Illegal Dispossession Act, 2005, in the first instance. 8. No doubt the legislature has not provided any specific section/provision in the Illegal Dispossession Act, 2005 for compounding the offences under the Act; however, section 9 of the Act, 2005 provides that unless otherwise provided in the Illegal Dispossession Act, 2005, the provisions contained under the scheme of Criminal Procedure Code, 1898 shall be applicable to all the proceedings under the Act ibid. Therefore, I am of the clear view that the compromise arrived at between the parties under the Act ibid should be treated as the compromise within the meaning of section 345, Cr.P.C. Now the question has arisen that the offences under the Act ibid do not find mention in the table provided in section 345, Cr.P.C., therefore, compromise in respect of such offences could be entertained or not by this Court. 9. It is an admitted fact that both the parties have amicably settled all their differences and have agreed to pass rest of their lives in peace, tranquility and harmony. It may be observed that non-compoundability of a particular offence under any section of the enactment should not be read in isolation but it should be read in the background of each criminal case and beneficial interpretation should be given to it. If any authority is needed, reference may be made to the case of Ijaz and another v. Mst. Manadia (PLD 2016 Pesh. 26). In instant case, when both parties have earnestly decided to live in peace and tranquility by ignoring and settling all their past differences, then for the sake of their welfare in general and betterment of socio-economic conditions of the society as a whole, it will be prime need of the time to accept the compromise and consequently acquit the appellant from the charges. 10. In cases of Ijaz and another supra, and The State v. Irfanullah Qazi (2007 MLD 1269), the offences relating to Special Law/ATA etc. were not compoundable, however, on account of compromise arrived at between the parties, the same was recognized by the Honourable Peshawar High Court as well as by this Court. Likewise, in the cases of Abdul Wali (Wali Khan) and 3 others v. Abdul Rashid Arif and 2 others (2013 PCr.LJ 767) and Abdul Wahab and 3 others v. Additional Sessions Judge, Okara and 3 others (PLD 2012 Lah. 305), the compromise was effected between the parties during pendency of the cases before trial Court in terms of sections 3/4 of Illegal Dispossession Act, 2005, which was accepted by the trial Court, however, after acquittal of the accused therein, some of the parties had sought review of the order passed by the trial Court and wanted to reopen the case on certain issues but the Honourable Benches of Lahore as well as Peshawar High Courts declined to disturb the findings of the Courts below on account of compromise and thus have recognized the compromise took place between the parties before trial Court. 11. The appellant was convicted under subsection (2) of section 3 of Illegal Dispossession Act, 2005. The legal question is that when the legislature has not specifically defined in its preamble as to whether the said offence should be treated as compoundable or non-compoundable then the same could be compounded by the parties or not. Although, the Statute viz. The Illegal Dispossession Act, 2005 is silent, whether it is compoundable or non-compoundable, however, the dispute relates to property, thus, the same is presumed to be of civil nature, and in civil rights the room for negotiation ever remains open, therefore, the legislature in its wisdom has left it open for the courts to decide such issue. It is trite of law that when the statute or enactment is silent or where there are two possible interpretations of a provision of law, the one which is favourable to the accused is to be followed. In instant case, the parties have filed joint applications for compromise, besides the possession of the subject property has also been handed over to the complainant, therefore, in order to maintain peace and tranquility between the parties, propriety of law demands to entertain the compromise application. I am of the considered view that if both the parties i.e. the complainant and the appellant/convict, particularly the aggrieved person/victim, have settled their disputes and differences amicably, then such compromise should be accepted by the Court, though under the Statute it has not been specifically defined/clarified as to whether the same is compoundable or non-compoundable. In present case, keeping in view the compromise, which has taken place between the parties outside the Court, it is not proper to uphold the conviction specially when the complainant himself does not want to pursue his case anymore and has raised no objection to the acquittal of the appellant. In support of this view I am fortified by the following decisions of the Superior Courts. 12. In the case reported as ljaz and another supra, while dealing with the similar situation, it was held by Peshawar High Court as under: "5. No doubt section 436, P.P.C. is not compoundable and section 345, Cr.P.C. is inapplicable to compound it but equally it is an admitted fact that both the parties have amicably settled down all their differences and have resolved to lead rest of their lives in peace and tranquility. 8. Of course, in letter, section 436, P.P.C. is not compoundable. However, non-compoundability of a section of law should not be read in isolation but it should be read in the background of each criminal case and a beneficial interpretation should be given to it. When the parties in the instant case have earnestly decided to live in peace by forgetting all their differences then it will be a need of the hour to acquit the petitioners in the instant case on the basis of compromise despite the non- compoundability of section 436, P.P.C." 13. A Division Bench of this court, while dealing with this point in the case of Hussain Bux and others v. The State reported in PLD 2003 Karachi 127 (DB), has observed as under: "At this juncture we would like to refer to another objection of Mr. Ali Azhar Tunio, learned Assistant A. G to the effect that the offence under section 302, P.P.C. is compoundable while the offence under section 149, P.P.C. is not compoundable. Although in Second Schedule to Cr.P.C. it is contained that the offence under section 149, P.P.C. is not compoundable but we are persuaded to agree with the views of Mr. Muhammad Bachal Tunio, learned Addl. A. G, and Mr. Ali Nawaz Ghanghro Advocate, the learned amicus curiae, that offence under section 149, P.P.C., is by way of constructive liability and when the main offence is allowed to be compounded and the persons who have taken specific part in the commission of offence are allowed to compound, then the persons who are convicted on account of being merely members of unlawful assembly are also entitled to the concession of compromise/ compounding/waiver, otherwise it would not be in consonance with the principles of justice, in accordance with the injunctions of Islam as laid down in Holy Qur'an and Sunnah." 14. In another case reported as Shahid v. The State and another (2017 YLR Note 81 [Lahore]) it was held as under: "Needless to say, compromise even in non-compoundable offences makes a crucial circumstance and a redeeming feature which helps the warring-parties come close to each other and live peacefully onwards. Let non-compoundable nature of the offences under sections 452, 354, P.P.C. not frustrate their noble intentions." 15. The Honourable Lahore Court in the case of Ali Raza and another v. The State and another reported in PLD 2013 Lahore 651 made following observations: "The offence alleged is certainly non-compoundable but eagerness of the parties to settle their dispute by executing an agreement, in mentioned terms has to be given a sense of respect, so that they may harvest benefit thereof. The complainant and his wife, who are doctors/ medical-officers by profession, hence, educated persons; well understand the ins and outs of the compromise arrived at and they, being, present in person like Mst. Kalsoom Bibi accused have expressly stated that they on account of compromise do not intend to prosecute the accused-petitioners further, if the loss allegedly sustained by the complainant and his wife at the hands of the accused/ petitioners has been made good, to their entire satisfaction, there may be no harm in allowing the instant applications for bail after arrest. Even otherwise, it has always been observed that the compromise even in non-compoundable offences is a redeeming factor, which brings peace, harmony and coherence in the society and it may have far-reaching positive effects, in the lives of warring-parties." 16. The upshot of above discussion is that it would be in the best interest of justice and equity that the compromise application arrived at between the parties merits consideration. Therefore, keeping in view the cordial relations between the parties in future, the listed applications under Section 345(2), Cr.P.C being M.A.No.8631/ 2023 is hereby granted and application under Section 345(6) Cr.P.C vide M.A. No.8632/2023 is accepted. Consequently, instant appeal is hereby allowed. Resultantly, impugned judgment to the extent of conviction and sentence of the appellant is hereby set aside to the extent of his sentence of incarceration as well fine only whereas to the extent of direction to appellant regarding handing over possession of disputed property to complainant is hereby maintained. Appellant is acquitted of the charges by way of compromise; he is present on bail, his bail bond is cancelled and surety furnished by him is hereby discharged. These are the reasons of the short order dated 27-06-2024. JK/M-88/Sindh Appeal allowed.

Summary: Essentials of (a) Tort—Malicious Prosecution—Civil damages claim after criminal acquittal—Essential elements— Respondents instituted a suit for damages alleging malicious prosecution after Respondent No.1 was acquitted in a criminal case lodged by Appellant—Court reiterated that to succeed in a claim of malicious prosecution, plaintiff must prove: (i) prosecution by defendant; (ii) absence of reasonable and probable cause; (iii) malice; (iv) termination of proceedings in plaintiff’s favour; and (v) damage suffered—Held, mere benefit of doubt acquittal does not preclude civil claim for malicious prosecution—Initiation of prosecution after full settlement, lack of CCTV evidence, and no bank records supported inference of malice—Suit rightly decreed by learned Single Judge. (b) Evidence Act, 1872 ----Adverse inference—Failure to produce crucial documentary evidence— Appellant alleged fraudulent withdrawal of Rs.785,000/- by Respondent No.1 but failed to produce bank statements or CCTV footage—Admitted in cross-examination that partial restitution was received and acknowledged in affidavit—Held, such omissions and admissions seriously undermined the credibility of the prosecution case and reinforced inference of lack of probable cause. **(c) Criminal Law—Acquittal—Honourable vs. simpliciter acquittal— Court held that all acquittals, whether on merit or benefit of doubt, are honourable—No legal distinction exists between types of acquittal in context of malicious prosecution—Relying on Dr. Muhammad Islam v. Govt. of NWFP, 2006 SCMR 1455, court emphasized that failure to prove guilt beyond reasonable doubt confers right to sue for wrongful prosecution. Disposition: Appeal dismissed—Judgment and decree awarding Rs.3 million in general damages for malicious prosecution, along with 10% markup and suit costs, upheld—Appellant ordered to pay Rs.35,000/- in costs to Respondents within 20 days. Cited Authorities / Precedents: • Dr. Muhammad Islam v. Government of NWFP (2006 SCMR 1455) • Faraz Naveed v. DPO Gujrat (PLD 2022 SC 553) • Suit No. 434/2019; FIR No. 56/2011 • Elements of Malicious Prosecution: See para 10 of judgment

Summary: Summary pending

Summary: (a) Pakistan Penal Code, 1860 (P.P.C.): ---S. 302(b)--- Qatl-e-amd (Intentional murder)---Conviction based on eyewitness testimony, corroborative evidence, and motive--- The appellant was convicted under S. 302(b), P.P.C., for the murder of Khalid Pervaiz. The prosecution relied on reliable and corroborated eyewitness testimony, supported by medical evidence, forensic science reports (matching recovered bullet casings with the appellant's firearm), and the appellant's established motive for revenge. The court upheld the conviction, finding the prosecution's case proved beyond reasonable doubt. ----Cited Cases: Muhammad Ehsan v. The State (2006 SCMR 1857) Farooq Khan v. The State (2008 SCMR 917) (b) Criminal Procedure Code, 1898 (Cr.P.C.): ---Ss. 342, 154--- Delay in FIR---Explanation provided---Impact on prosecution's case--- The FIR was lodged after a brief delay of 1 hour and 45 minutes, attributed to the complainant prioritizing medical treatment for the deceased. The court found the delay adequately explained and dismissed any suggestion of fabrication or false implication. ----Cited Case: Muhammad Ashraf v. The State (2021 SCMR 758) (c) Evidence: ---Eyewitness reliability---Corroboration from forensic and circumstantial evidence---Role of police witnesses---** The court accepted the eyewitness testimonies of close relatives of the deceased as trustworthy, noting their consistency and the absence of any motive to falsely implicate the accused. Forensic evidence corroborated the eyewitness accounts, and police witnesses' testimonies were deemed credible as no enmity or ill-will towards the accused was established. ----Cited Cases: Zakirkhan v. The State (1995 SCMR 1793) Mushtaq Ahmed v. The State (2020 SCMR 474) (d) Sentence---Death penalty---Justification--- The court upheld the death sentence, finding no mitigating circumstances to reduce the penalty. The brutal, premeditated nature of the crime, the appellant's criminal history, and the motive for revenge justified the sentence. ----Disposition: Appeal dismissed; conviction and death sentence maintained. Confirmation reference answered in the affirmative.

Summary: (a) Constitution of Pakistan ----Art. 199----Writ jurisdiction----Scope of interference by High Court----Concurrent findings of fact----Finality of unchallenged decree The petitioner challenged the dismissal of their objection petition in execution proceedings and the appellate court's decision. It was held that the original judgment and decree, having attained finality due to the petitioner’s failure to file an appeal against the trial court's judgment, could not be revisited in execution proceedings. The executing court cannot go behind the decree, nor can it re-examine or modify its terms. The writ jurisdiction of the High Court does not extend to disturbing concurrent findings of fact unless there is a clear case of illegality, material irregularity, or jurisdictional defect. Disposition: Writ petition dismissed in limine as being devoid of force. Cited Cases: Pakistan International Airlines Corporation v. Aziz-ur-Rehman Chaudhary (2016 SCMR 14) Syed Riaz Ahmad Shan v. Dayal Singh College Trust Society (1972 SCMR 237) Muhammad Ali v. Ghulam Sarwar (1989 SCMR 640) Mst. Naseem Akhtar v. Shalimar General Insurance Company Limited (1994 SCMR 22) Irshad Masih v. Emmanuel Masih (2014 SCMR 1481) Muhammad Tariq Khan v. Khawaja Muhammad Jawad Asami (2007 SCMR 818) Zulfiqar Ali v. Judge, Family Court (2007 MLD 1710) (b) Civil Procedure Code (V of 1908) ----Execution of decree----Scope of executing court----Jurisdiction limited to executing decree in its terms The petitioner argued that the decree was non-executable due to policy restrictions. The court reiterated that the executing court cannot question the validity, propriety, or correctness of a decree. Its jurisdiction is confined to implementing the decree as it stands unless the decree is patently void or a nullity. The objections raised by the petitioner amounted to indirectly challenging the original judgment, which is not permissible during execution. Disposition: Objection petition rightly dismissed as the executing court cannot go behind the decree. Cited Cases: Muhammad Ali v. Ghulam Sarwar (1989 SCMR 640) Mst. Naseem Akhtar v. Shalimar General Insurance Company Limited (1994 SCMR 22) Province of Punjab v. Burewala Textile Mills Limited (2001 SCMR 396) Tauqeer Ahmad Qureshi v. Additional District Judge, Lahore (PLD 2009 SC 760) (c) Administrative Law ----Public policy restrictions----Non-challenge of original decree----Effect on subsequent execution proceedings The petitioner raised objections based on departmental policies regarding property transfer. The court held that such objections could not override a decree that had attained finality. Administrative or policy restrictions should have been raised during the trial, and failure to do so bars the petitioner from raising them in execution proceedings. Disposition: Policy-based objections rejected as they were not raised during the trial phase. Cited Cases: Muhammad Ali v. Ghulam Sarwar (1989 SCMR 640) Allah Ditta v. Ahmed Ali Shah (2003 SCMR 1202) (d) Administration of Justice ----Finality of decree----Doctrine of past and closed transactions----Scope of objections in execution proceedings A decree that has not been challenged in the appellate stage attains finality and becomes a past and closed transaction. The executing court is duty-bound to implement it without modification. The objections raised in execution proceedings that could have been raised during the trial or appeal are inadmissible. Disposition: Decree held executable as passed, objections dismissed. Cited Cases: Muhammad Ali v. Zakir Hussain (PLD 2005 Lahore 331) Fakir Abdullah v. Government of Sindh (PLD 2001 SC 131) (e) Civil Procedure Code (V of 1908) ----S. 47----Objections to execution----Limited scope----When objections are permissible Objections regarding executability are only permissible if the decree is patently void, a nullity, passed without jurisdiction, or violates a legal provision. In this case, none of these exceptions were applicable. The petitioner’s objections were meritless and amounted to an attempt to delay execution. Disposition: Objections dismissed, and the decree directed to be executed in letter and spirit. Cited Cases: Tauqeer Ahmad Qureshi v. Additional District Judge, Lahore (PLD 2009 SC 760) Muhammad Tariq Khan v. Khawaja Muhammad Jawad Asami (2007 SCMR 818) Final Outcome: Writ petition dismissed in limine, and objections in execution proceedings were rejected. The decree was held executable in its original terms.

Summary: Scope of Section 5 Illegal dispossession act --- Background: The petitioner, Noor Khan, filed a revision petition challenging the dismissal of his complaint under Section 3 of the Illegal Dispossession Act, 2005 by the Additional Sessions Judge, Chiniot. Noor Khan claimed that respondents No. 2 to 6 had illegally dispossessed him from 12 Kanals and 7 Marlas of land, which he lawfully possessed after a partition. The petitioner alleged that on 03.10.2020, the respondents forcefully took over the land and damaged his crops. An FIR was lodged on the same day. Despite presenting evidence of his legal possession through a warrant, the trial court dismissed the complaint based on a revenue report showing possession by the respondent, leading the petitioner to seek revision. ----Issues: 1) Did the trial court properly conduct an inquiry under Section 5 of the Illegal Dispossession Act, 2005 before dismissing the complaint? --2) Should the trial court have considered the FIR and cross-version from the date of dispossession to substantiate the petitioner’s claim? ----Holding/Reasoning: Holding: The Lahore High Court set aside the trial court’s order and directed a reinvestigation or inquiry under Section 5 of the Illegal Dispossession Act, 2005. The trial court was ordered to reassess the complaint in line with procedural requirements for inquiry and investigation. ---- Reasoning: The Court found that the trial court had erred by failing to conduct a thorough inquiry as mandated by Section 5 of the Illegal Dispossession Act, 2005. The dismissal was based on a revenue report dated 08.09.2021, which did not reflect the actual state of possession at the time of the alleged dispossession. The trial court should have thoroughly examined the FIR, cross-version, and other relevant evidence, including police records, to determine whether illegal dispossession had occurred. Furthermore, the Court emphasized that Section 5 of the Act requires a more exhaustive inquiry or investigation to ascertain the truth of the complaint before reaching a decision, especially in cases involving allegations of forcible dispossession. ---- Citations/Precedents: Muhammad Jawad Hamid v. Mian Nawaz Sharif & others (2019 P Cr. L. J 665) Muhammad Ibrahim and others v. Qudrat Ullah Ruddy and others (PLD 1986 Lahore 256) Waqar Akli and others v. The State through Prosecutor/Advocate-General, Peshawar and others (PLD 2011 Supreme Court 181) Mst. Inayat Khatoon and others v. Muhammad Ramzan and others (2012 SCMR 229) Taimor Ahmad and another v. Additional Sessions Judge and 9 others (2018 YLR 81) -----Outcome: The petition was allowed, and the trial court’s order was overturned. The lower court was directed to follow the law by either conducting an inquiry or ordering an investigation to collect relevant evidence before reaching a decision on the merits of the complaint. The case was remanded for further proceedings. ----- Scope of Section 5 of the Illegal Dispossession Act, 2005 for Inquiry and Investigation Section 5 of the Illegal Dispossession Act, 2005 outlines the procedure and requirements for conducting inquiries and investigations in cases of illegal dispossession. It gives the court broad powers to ensure that any claims of illegal dispossession are carefully examined through a systematic process before proceeding to trial. The section is designed to prevent land grabbers from occupying property illegally and to protect the rights of lawful owners or occupiers of immovable property. -----Key Provisions of Section 5 of the Illegal Dispossession Act: Investigation by Police: The court has the power to direct the officer-in-charge of a police station to investigate the complaint of illegal dispossession. This investigation must be completed within 15 days unless extended by the court for valid reasons. The investigation by the police is essential to gather evidence, record statements, inspect the site, and obtain relevant documentation such as the revenue record. -----Local Inquiry by Magistrate or Revenue Officer: Section 5 allows the court to direct a Magistrate or revenue officer to conduct a local inquiry if deemed necessary. The findings of this local inquiry are treated as evidence in the case. The purpose of a local inquiry is to ascertain the actual state of possession, particularly when there is a dispute over who is in control of the land at the time of the complaint. This inquiry helps clarify the facts when documentary evidence is ambiguous or conflicting. -----Day-to-Day Trial and Fast-Track Resolution: The section mandates that trials under the Act should proceed on a day-to-day basis, with the court required to give reasons for any delay. The aim is to ensure that cases of illegal dispossession are handled swiftly, avoiding prolonged legal battles. -----Inquiry and Investigation as Complementary Processes: The Act allows the court to both conduct an inquiry and direct an investigation, ensuring that all facts are gathered before deciding whether to issue a process against the accused. These processes are complementary, as the inquiry can clarify issues, while the investigation collects additional evidence. The court is not bound to rely solely on the statements of the parties but can seek further evidence through the investigation or local inquiry to ensure that the case proceeds based on a complete and accurate understanding of the facts. -----Judicial Interpretation: In Muhammad Jawad Hamid v. Mian Nawaz Sharif & others (2019 P Cr. L. J 665), the court highlighted that an inquiry under Section 202 of the Cr.P.C. must be thorough, and the police file and other relevant documents must be examined to ascertain the truth. Similarly, in Mst. Inayat Khatoon v. Muhammad Ramzan (2012 SCMR 229), the Supreme Court emphasized the importance of an investigation under the Illegal Dispossession Act to uncover evidence for and against the alleged offense. -----Conclusion: Section 5 of the Illegal Dispossession Act, 2005 is a powerful tool to ensure that disputes over land possession are resolved based on a comprehensive evaluation of the facts. The combined mechanism of inquiry and investigation ensures that complaints of illegal dispossession are not dismissed prematurely or without sufficient evidence. Courts must rigorously apply this section to ensure that justice is served, and rightful owners or occupants are protected from illegal land grabbers.