IN THE SUPREME COURT OF PAKISTAN 
 
           (Appellate Jurisdiction) 
 
 
 
PRESENT: 
MR. JUSTICE JAVED IQBAL 
MR. JUSTICE JAWWAD S. KHAWAJA 
MR. JUSTICE ANWAR ZAHEER JAMALI 
 
 
Civil Appeal No.16 of 2010 
(On appeal from the judgment 
dated 29.10.2009 of the Peshawar 
High Court, Abbottabad Bench 
passed in WP No.429/2009) 
 
 
Waqar Ali & others 
 
 
              … 
Appellants 
 
 
 
 
 
 
 
        VERSUS 
 
The State through Prosecutor/ 
Advocate General, Peshawar & others             … 
Respondents 
 
For the appellants  
Mr. Tariq Mahmood, Sr. ASC 
 
For respondent 1-3: 
Nemo. 
 
For respondent-2:  
Mr. Gulzarin Kiyani, ASC 
 
Date of hearing: 
 
23.11.2010 
 
JUDGMENT 
 
 Jawwad S. Khawaja, J.-   The three appellants namely Waqar Ali, 
Zulfiqar Ali and Sadaqat Ali who are brothers inter se, impugn the 
judgment dated 29.10.2009 passed by a learned Division Bench of the 
Peshawar High Court whereby Writ Petition No.429/09 filed by the 
appellants was dismissed. For a proper understanding of the grievance of 
the appellants it is necessary to set out briefly, the relevant facts which 
have given rise to this appeal by leave of the Court.  
2. 
The appellants, through a registered sale deed dated 8.2.2005 
purchased land measuring 150 kanals in khasra No.4729/2042 and 
Civil Appeal No.16 of 2010 
2 
4730/2042 situated in mauza Khanpur, Tehsil & District Haripur. The 
authenticity of the sale deed and the validity of the title acquired by the 
appellants are not disputed. Respondent No.2 namely Ghulam Basit is 
owner of land measuring 30 kanals 6 marlas in khasra Nos. 
4260/2344,4257/2339,4258/2339,4723/4259/2344/4259/2344 in the same 
mauza i.e. Khanpur. The title of the respondent Ghulam Basit in the said 
land is not disputed by the appellants. It is also clear that the land owned 
by the appellants is in khata No.1039/1421 while the respondent Ghulam 
Basit owns land in a different khata.  These are material circumstances 
having a bearing on the outcome of this appeal, as will be apparent from 
the discussion which follows. 
3. 
On 3.5.2008, the aforesaid respondent lodged a complaint under 
Section 3 of the Illegal Dispossession Act, 2005 against the three 
appellants and two others namely Zila Council Haripur and the Project 
Manager, Khanpur Dam. It was alleged therein that the appellants had 
committed an offence under Section 3 ibid and a prayer was made that 
they be convicted and sentenced under the said provision of law. The 
relevant allegations against the appellants can be gathered from 
paragraphs Nos.3 and 4 of the complaint which, for ease of reference, are 
reproduced as under:- 
 
 
Civil Appeal No.16 of 2010 
3 
 
 
4. 
The aforesaid averments in the complaint have special significance 
and will be considered later. At this stage, however, it is relevant to note 
that the appellants had purchased land in February 2005.  It is also 
important that even according to the contents of the complaint the area 
owned by the respondent-complainant was open land without any 
boundary wall or other markings to identify the extent or the exact metes 
and bounds of the same. The respondent claims he became aware of the 
offence but no date or time of the alleged commission of offence has been 
mentioned in the complaint. The respondent’s knowledge is based on a 
demarcation report made in May, 2008 on an application to the Tehsildar, 
Haripur filed by the respondent-complainant on 1.2.2008. The complaint 
under Section 3 ibid was filed in the trial Court on 3.5.2008. The 
appellants, on their own, and even before cognizance had been taken, 
appeared before the trial Court and challenged the maintainability of the 
complaint. It is not necessary for the present to give an account of certain 
proceedings which took place on the complaint, before the learned trial 
Court or in the Peshawar High Court between 3.5.2008  which is the date 
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4 
of filing of the complaint and 15.7.2009 when the learned trial Court took 
cognizance by observing as under:- 
“At this juncture, this Court is to see that whether prima 
facie the matter is cognizable under the Act or not. The other 
aspects of possession of the respondents and the correctness of 
the report of the local commissioner are matters of evidence to 
be thrashed out at proper stage. The complaint is prima facie 
maintainable.”  
(emphasis supplied) 
 
This order was assailed by the appellants through the afore-noted Writ 
Petition No.429/09 filed before the Peshawar High Court. It was the case 
of the appellants that there was no basis for holding that the complaint 
was maintainable. The writ petition was dismissed vide impugned 
judgment dated 29.10.2009 on the short ground that the trial Court’s 
order ‘is not final which could be challenged in constitutional jurisdiction and 
in this sense the [writ] petition is premature.’  It is in these circumstances 
that the appellants filed Civil Petition No.2038 of 2009 wherein leave to 
appeal was granted to consider if the assumption of jurisdiction by the 
learned trial Court was violative of the Illegal Dispossession Act, 2005  
5. 
We have heard learned counsel for both sides. We have also 
examined the grounds which prevailed with the learned trial Court while 
taking cognizance of the matter and the reasons which persuaded the 
High Court to pass the impugned judgment dated 29.10.2009. Although 
learned counsel for the appellants adverted at length, to factual 
controversies between the parties relating to title, possession and similar 
matters, it is not necessary to adjudicate on such factual aspects because 
Civil Appeal No.16 of 2010 
5 
the matter before us is confined to the issue noted in the leave granting 
order which is in the following terms:- 
“…..  
 
Having heard learned counsel for the appellants at 
some length, leave is granted to consider whether the 
assumption of jurisdiction by the learned Additional 
Sessions Judge in the circumstances alluded to in the 
petition is violative of the mandate of Illegal Dispossession 
Act, 2005.” 
6. 
The above issue must be examined, starting with the contents of the 
complaint itself which highlights a mixed question of law and fact. It is 
clear from the complaint as already noted, that the area measuring 30 
kanals 6 marlas owned by the respondent-complainant was open land 
without any visible identification of its limits. It also appears evident from 
the record that when the appellants purchased their property measuring 
150 kanals, there was no construction or boundary-wall to identify the 
same. Even the tatimma khasra number in respect of the said 150 kanals 
was created subsequent to the purchase made by the appellants. Another 
important factor markedly obvious from the complaint is that the 
respondent was aware of certain demarcation and boundary disputes 
raised by Malik Manzur, another local land-owner, in respect of the area 
purchased by the appellants. This dispute arose and had been settled well 
before the filing of the respondent’s complaint. Yet, no demarcation was 
sought nor was any other action taken by the respondent at the time to get 
his land demarcated. Between 2005 when the appellants purchased and 
took possession of their property, and the filing of the application for 
demarcation on 1.2.2008, the respondent himself appears not to have had 
any grievance let alone a cause for complaint for trespass or illegal 
Civil Appeal No.16 of 2010 
6 
dispossession. Admittedly, as per paragraph 4 of his complaint 
(reproduced above) the respondent only became aware that the alleged 
offence under Section 3 supra had been committed by the appellants, upon 
receiving the demarcation report. These circumstances simplify the 
controversy before us. 
7. 
The legal question as to whether the trial Court had jurisdiction in 
the matter can thus be easily decided by referring to the above 
circumstances and the relevant provisions of the Illegal Dispossession Act, 
2005 (hereinafter referred to as the “Act”). Section 3 of the said statute 
which defines the offence thereunder, is reproduced below for ease of 
reference:- 
“3. 
Prevention of illegal possession of property, etc.---
(1) No one shall enter into or upon any property to dispossess, 
grab, control or occupy it without having any lawful authority to 
do so with the intention to dispossess, grab, control or occupy the 
property from owners or occupier of such property.” 
(2)   Whoever contravenes the provisions of the subsection (1) shall, 
without prejudice to any punishment to which he may be liable under 
any other law for the time being in force, be punishable with 
imprisonment which may extend to ten years and with fine and the 
victim of the offence shall also be compensated in accordance with the 
provision of section 544-A of the Code.” 
(emphasis supplied) 
We may also briefly refer to other provisions of the Act which have 
relevance in this appeal. Section 4 stipulates that any “contravention of 
section 3 shall be triable by the Court of Session on a complaint”. It also 
provides that the offence under the Act shall be non-cognizable. Section 5 
empowers the Court to direct the police to make investigation. The scope 
of these provisions of the Act will be considered during the course of this 
opinion.  
Civil Appeal No.16 of 2010 
7 
8. 
It is clear from section 3 ibid that in order to constitute an offense 
thereunder the complaint must disclose the existence of both, an 
unlawful act (actus reas) and criminal intent (mens rea). In view of the 
allegations and circumstances considered above, it is apparent that even 
if it is ultimately established that the appellants are in occupation of an 
area owned by the respondent-complainant, there is no indication that 
they also had the necessary criminal intent. On the contrary, the 
averments in the complaint point in the opposite direction and show at 
best, that there is a dispute of a purely civil nature between the parties as 
to the exact location of their respective parcels of land. It is in these 
circumstances, and with the aforesaid background in mind that learned 
counsel for the respondent-complainant was asked to state if an 
inadvertent encroachment would constitute an offence under Section 3 of 
the Act. He replied in the affirmative. We are afraid his response is 
against the express wording of the statute which requires the existence of 
a guilty intention for the purpose of assuming jurisdiction. For reasons 
considered above, guilty intent, does not exist in the present case. 
Learned counsel for the respondent did advert to some precedents in 
support of his submission to the contrary. However, the ratio of the cited 
precedents is not attracted in the present case as will be shown shortly.  
9. 
 We can now examine the grounds which found favour with the 
learned trial Court to justify cognizance of the alleged offence under 
Section 3 ibid. At the very outset reference may be made to the extract 
from the order of the learned trial Court reproduced in paragraph 4 
above. From the same it appears that the learned trial Court took 
Civil Appeal No.16 of 2010 
8 
cognizance of the alleged offence without making the requisite 
determination that the complaint disclosed the commission of such 
offence. The trial Court decided the question of its jurisdiction and the 
maintainability of the complaint unthinkingly and without, in fact, 
giving serious consideration to the averments made in the complaint. It 
has merely been observed that the “epitome of the complaint is that the 
[appellants] allegedly took the possession of the property owned and possessed by 
the complainant”. It is implicit in this observation that the ‘intention to 
dispossess, grab, control or occupy’ cannot be deduced from the complaint. 
The said observation of the trial Court represents the total consideration 
given by it to the contents of the complaint. The learned trial Court has 
also stated that “[o]n the lodging of the complaint the mater was sent to [the] 
SHO for investigation twice”. The basis on which the learned trial Court 
took cognizance, however, is neither the complaint nor the police 
investigation. It is instead, the subsequent report of a Local Commission 
appointed by the Court.   
10. 
The above noted observations point to the erroneous approach 
taken by the trial Court as to the maintainability of the complaint. The 
Court, it should be noted is not obliged on the filing of each complaint, to 
direct the police to investigate the matter. Section 5 of the Act is clear that 
“upon a complaint the Court may direct” the police to investigate the matter. 
This enabling power of the Court can only be exercised on the basis of 
and after considering the contents of the complaint. The power to direct 
an investigation under section 5 ibid is to be exercised judicially and not 
as an unconsidered or mechanical action undertaken on every complaint 
Civil Appeal No.16 of 2010 
9 
filed under the Act, regardless of the merits of the same.  The purpose of 
the investigation under the aforesaid statute is to ascertain prima facie, the 
authenticity of what has been stated in the complaint. The complaint 
itself has to show that an offence cognizable by the Court has been 
committed by the accused person(s) named therein. In the present case, 
from the order of the learned trial Court dated 15.7.2009 it is obvious that 
the matter was sent to the police “on the lodging of the complaint”. If the 
learned trial Court had gone through the complaint, in particular, 
paragraphs 3 and 4 thereof it would have become apparent to it that the 
dispute between the parties was not of a criminal nature, and as such 
cognizance was not required to be taken.  
11. 
The aim of directing an investigation by the police is not to add to 
the allegations or grounds raised in a complaint. The purpose of such 
investigation, if resorted to by the trial Court, is to inquire into the 
correctness of allegations made in the complaint itself. The Court need 
not order investigation under section 5 of the Act if it concludes from the 
complaint and the material furnished by the complainant in support 
thereof, that all essential elements of an offence under section 3 ibid are or 
are not, sufficiently disclosed and established. In the present case when 
we consider the order of the learned trial Court dated 15.7.2009 it 
becomes evident that mens rea has been inferred by the learned trial 
Court on the basis of the musavi prepared by a Local Commission 
appointed by the Court.  Under the statutory scheme, the Court is not to 
become a party in gathering information or evidence in support of the 
complaint to justify the existence of mens rea when none can be made out 
Civil Appeal No.16 of 2010 
10 
from the complaint itself.  In any event, the  musavi has no relevance in 
establishing mens rea in the circumstances noted above, even if the Local 
Commission’s report is eventually proved correct.  This is so because the 
report prepared by the Local Commission or the musavi at best shows a 
situation as it exists on ground in the opinion of the Local 
Commission. It has no intrinsic or probative value, even prima 
facie, for the purpose of showing on the facts of this case, that the 
appellants harboured a guilty intent.  
12. 
There is another circumstance in the present case which has to be 
noted as it implies an absence of mens rea. It has been acknowledged in 
paragraph 4 of the complaint that the appellants, in particular Waqar Ali, 
had encroached on the complainant’s land. The word ‘tajawuz’ has been 
used by the complainant which can only be translated as ‘encroachment’ 
rather than criminal trespass or unlawful entry with the intention of 
grabbing the disputed land or of dispossessing the respondent-
complainant. This is particularly the case, considering that the 
complainant claims to have become aware of the encroachment only after 
the demarcation made by the revenue functionaries. In these 
circumstances, the various “investigations” undertaken by the Police or 
by a Local Commission can, only be treated as prima facie evidence of a 
civil dispute between the parties. This dispute, needless to say, will be 
decided by the competent Civil or Revenue Courts having jurisdiction in 
the matter. The learned trial Court also observed that ‘mere encroachment 
is something different from illegal dispossession as the former does not involve 
intentional grabbing of property’. However, not finding the element of mens 
rea in the complaint, the learned Court travelled outside the complaint to 
Civil Appeal No.16 of 2010 
11 
draw an unjustified inference from a masavi prepared by the Local 
Commission. As noted above, this course of action is not envisaged by 
the Act.  
13. 
As in any criminal case, the complainant is to state the facts which, 
without extraneous considerations or evidence, satisfy the Court of the 
existence of every ingredient of an alleged offence. Without this a 
complainant is not entitled to invoke the aid of the Court and to foist the 
travails of a criminal trial on the person(s) accused by him. In a very 
important sense a Court empowered to take cognizance of an offence 
under the Act, is required to act as a sieve and to filter out those 
complaints which do not disclose the requisite criminal intent. 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.   
14. 
The provisions of the Act, in our opinion, have to be interpreted in 
line with established jurisprudence on criminal law. This will ensure that 
the process of law is not abused through filing of vexatious complaints. 
Courts are also duty bound to scrutinize complaints and, if necessary, 
Civil Appeal No.16 of 2010 
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examine complainants, to protect hapless victims of false complaints or 
complaints which do not show the existence of all necessary elements of 
an alleged offence.  We should also add that a bald assertion in the 
complaint alleging mens rea may not (depending on the facts of a case) 
justify the assumption of jurisdiction if the attendant circumstances set 
out in the complaint or ascertainable from material filed in support 
thereof, do not bear out such allegation.  
15. 
We may now turn to the judgment of the High Court, impugned before 
us. Criminal proceedings initiated on the basis of a complaint entail a two-step 
process. In the first instance the Court has to decide if the complaint merits 
further action such as taking cognizance. This decision, properly speaking, 
cannot be equated with a mere interlocutory order because in respect of the 
complaint, taking or refusing cognizance brings to an end the first step of the 
process. The criminal trial commences and can only be said to be pending after 
cognizance is taken and the accused is summoned. Thus in the event the Court 
does not find sufficient material in the complaint to justify cognizance, it may 
dismiss the same without proceeding to order an inquiry or investigation and 
without summoning the accused. While passing the impugned judgment, the 
learned Division Bench of the High Court held that the order “of the learned trial 
Court dated 15.7.2009 is not final which could be challenged in the constitutional 
jurisdiction and in this sense the petition is premature”. We say with respect, that 
this is an overly simplistic remark which does not take into account the 
aforesaid legal aspect of the case. An interlocutory order passed by a Court 
competent to exercise jurisdiction in a matter, is qualitatively very different 
from an order passed by a Court to determine if, in the first place, the requisite 
jurisdictional facts exist which would enable it to proceed in the matter. 
Support for this legal proposition can be drawn from the case of titled Sind 
Civil Appeal No.16 of 2010 
13 
Employees’ Social Security Institution versus Dr. Mumtaz Ali Taj & another (PLD 
1975 SC 450). 
16. 
In view of the foregoing circumstances, the pending criminal trial 
against the appellants commenced on 15.7.2009 because it is on this date 
“the Court [took] cognizance of the offence” and the matter was adjourned 
for framing of charge. An order passed after 15.7.2009 but before the 
conclusion of the trial could appropriately be termed an interlocutory 
order, but this would not include the said order itself. It is important at 
this point to bear in mind the distinction between two facets of a Court’s 
jurisdiction under the Act. The question of jurisdiction may, in one set of 
circumstances, constitute a pure question of law. Thus a complaint under 
section 3 of the Act filed before a Judicial Magistrate will be dismissed 
straightaway or will be returned to the complainant for want of 
jurisdiction because under section 4 of the Act, the said offence is triable 
by a Court of Session. The second aspect of jurisdiction is highlighted by 
the circumstances of the present case where jurisdiction constitutes a 
mixed question of law and fact. Thus as a matter of law the Court of 
Session before which the respondent filed his complaint is the Court 
vested with jurisdiction under section 4 of the Act. However, in order for 
the Court to exercise its jurisdiction by taking cognizance, certain facts 
must first be held to exist. These facts which constitute an offence under 
section 3 of the Act have to be evident from the complaint and 
documents filed in support thereof. Thus, if the necessary ingredients of 
an offence under section 3 of the Act are not disclosed through the 
complaint and accompanying documents, the Court of Session will not 
be justified in exercising jurisdiction and taking cognizance. It will 
Civil Appeal No.16 of 2010 
14 
nevertheless have the jurisdiction to dismiss the complaint on the ground 
that an offence under section 3 of the Act is not made out.    
17. 
Learned counsel for the respondent-complainant referred to the 
cases titled Jehandad and 2 others versus The State and another (PLD 2006 SC 
270) and Islamic Republic of Pakistan through Secretary, Establishment 
Division, Islamabad and others versus Muhammad Zaman Khan and others 
(1997 SCMR 1508) to urge that the order of the learned trial Court dated 
15.7.2009 was only an interlocutory order and, therefore, the refusal of 
the High Court to interfere in the same in writ jurisdiction was 
unexceptionable. We have gone through the cited precedents but find 
that the ratio of the same has no application in the case before us. In both 
cited cases, the jurisdiction of the Court seized of the matter was not in 
dispute. As such no issue arose as to the maintainability of pending cases 
in which interlocutory orders were passed and were assailed in the 
Supreme Court. It was, in the circumstances, held that this Court would 
not be justified in exercising jurisdiction under Article 185 (3) of the 
Constitution because the Court seized of the matter which had passed 
the impugned interlocutory order, was vested with jurisdiction.  
18. 
It may be noted that the Supreme Court is possessed with 
jurisdiction to interfere even in interlocutory orders passed by a lower 
Court. If any authority for this legal proposition is required, reference 
may be made to the case titled Islamic Republic of Pakistan through 
Secretary, Establishment Division, Islamabad and others versus Muhammad 
Zaman Khan and others (1997 SCMR 1508). However, in order to regulate 
its jurisdiction, this Court ordinarily does not interfere with interlocutory 
Civil Appeal No.16 of 2010 
15 
orders passed by a Court which has rightly assumed and exercised 
jurisdiction in a pending matter. In the present case, however, leave was 
specifically granted “to consider whether the assumption of jurisdiction by the 
learned Additional Sessions Judge in the circumstances alluded to in the 
petition” was violative of the mandate of the Act. The issue of whether the 
trial Court had jurisdiction was not an interlocutory matter in the 
circumstances of this case considered above. At this point, however, we 
may add that if a proper and conscious application of mind has been 
made by a trial Court under the Act before taking cognizance, the High 
Court and this Court while regulating their jurisdiction under Articles 
199 and 185 of the Constitution respectively, will not ordinarily, interfere 
in such actions.  
19. 
In view of the foregoing discussion relating to the jurisdiction of 
the trial Court and the reasons which prevailed with the High Court 
while passing the impugned judgment of 29.10.2009, interference in these 
orders was warranted under Article 185 of the Constitution. Being aware 
of the problems faced by accused persons in criminal trials, Courts have 
to be sensitive to their difficulties. Such difficulties can be avoided or 
mitigated through the proper and conscious exercise of the power to take 
cognizance of a complaint under the Act. It was felt necessary by us to 
highlight the legal issues which arise in this case and to thereby also 
enunciate the law in terms of Article 189 of the Constitution.    
20. 
In view of the forgoing circumstances, we are not left in any doubt 
that jurisdiction was assumed by the learned trial Court on an erroneous 
premise while the learned Division Bench in the High Court also fell in 
Civil Appeal No.16 of 2010 
16 
error by declining to exercise writ jurisdiction on the premise that the 
order of the learned trial Court dated 15.7.2009 was not final and that, 
therefore, the writ petition filed by the appellants was premature. 
However, in order to ensure completeness of this judgment it is 
necessary to discuss further case law cited at the bar by learned counsel 
for the parties. 
21. 
 Learned counsel for the respondent-complainant firstly referred to 
the case titled Muhammad Abbasi  Vs. S. H. O. Bhara Kahu and 7 others 
(PLD 2010 SC 969) to support the impugned judgment. In the cited case 
cognizance had not, by then, been taken by the trial Court and it was also 
observed that the provisions of section 249-A of Cr. P.C. constituted an 
adequate remedy for redressal of the grievance of the petitioner in the 
circumstances of the said case. It may be noted that in the present case, 
the learned trial Court had assumed jurisdiction without the existence of 
the requisite jurisdictional fact i.e. mens rea. The cited precedent is, 
therefore, distinguishable on facts and is thus of little help to the 
respondent.  
22. 
Learned counsel for the respondent-complainant also referred to 
the case titled Shahabuddin Vs. State (PLD 2010 SC 725). The facts of the 
cited precedent are also distinguishable. Firstly it is to be noted that the 
petitioner therein had been convicted after due trial. A factual 
determination had been made that he had illegally dispossessed the 
complainant from the property in question. Another important point of 
distinction is that there was no controversy at all as to the identity of the 
property in contention which had well defined and undisputed 
Civil Appeal No.16 of 2010 
17 
boundaries.  In the present case, it is quite evident that the metes and 
bounds of the respondent’s land were not identifiable on site and he had 
to resort to the revenue authorities for the purpose of a prima facie, 
determination in respect of the exact location of his property. Yet another 
feature which distinguishes the cited precedent on facts is that the 
petitioner was proved not to have any title in the contested property. In 
the present case we have already noted that the sale deed in favour of the 
appellants and the title acquired by them is not disputed by the 
respondent-complainant. Only the location and boundaries of the said 
property appear to be in contention between the parties. The case of 
Shahabuddin supra, therefore, does not advance the respondent’s cause.  
23. 
Cases titled Mumtaz Hussain Vs. Dr. Nasir Khan & others (2010 
SCMR 1254) and Muhammad Akram & 9 others Vs.  Muhammad Yousaf & 
another (2009 SCMR 1066) were then cited by learned counsel for the 
respondent-complainant in support of his submissions. We have gone 
through these precedents and find the same to be inapplicable to the 
circumstances of the present case. In the cited cases, the question as to 
assumption of jurisdiction and taking of cognizance on the basis of the 
contents of the complaint had not arisen before the Court.  The said 
precedents, therefore, have no application in this case. 
24. 
Lastly, the case titled Rahim Tahir  Vs. Ahmed Jan & 2 others (PLD 
2007 SC 423) was referred to by learned counsel for the respondent. This 
case primarily involved the question as to whether the Act was 
applicable retrospectively. For reasons discussed above, we are not called 
upon to answer this question in the present case.  We are conscious that a 
Civil Appeal No.16 of 2010 
18 
general observation has been made in paragraph 6 of the cited judgment 
to the effect that the Act “would reveal that all cases of illegal occupants 
without any distinction would be covered by the Act.”  The issue of mens rea 
appears not to have arisen and was not discussed in the said case as the 
matter primarily focused on the retrospective effect of the Act. The cited 
case, therefore, does not help the respondent even though there may be 
aspects in the judgment which require elaboration. This, however, can be 
attended to in an appropriate case as and when it comes before us.   
25. 
In view of the foregoing discussion, this appeal is allowed. As a 
consequence the impugned judgment of the High Court dated 29.10.2009 
and the order of the learned trial Court dated 15.7.2009 are set aside, with 
the result that the complaint filed by the respondent is dismissed. There 
shall be no order as to costs.  
 
 
Judge 
 
 
Judge 
 
 
 
Judge 
Islamabad  
 
Announced on ____________ 
 
M. Azhar Malik/* 
 
Approved for reporting.  
 
