Advocate Yasir Habib

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05/03/2023

SOME IMPORTANT JUDGMENTS ON SECTION 491 CR.P.C
PLD 2022 Lahore 224 (illegal detention in police custody…)
Detenue was recovered from the police station and his arrest was not mentioned in roznamcha (daily dairy) of the Police Station, the contention of authorities was that the detune was arrested in investigation of a criminal case but no case diary could be produced in support of such plea….. held….. on returning of I.O from investigation of a case, he under 25.54(3) of police rules 1984 was to number and date each case diary mentioned at the back side of FIR available at Police station in relevant register. SHO and I.O exceeded their powers and jurisdiction and committed gross misconduct which fell within the ambit of section 155 C of police order 2002… high court directed police authorities to register an FIR against police officials under section 155C of police order 2002.
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PLD 2022Islamabad 120 (habeas corpus in relation to a child….)
Jurisdiction of a court adjudicating a habeas corpus in relation to a child cannot be confused with any ordinary habeas corpus where focus of the court is on the recovery of the person illegally detained. Focus of court in a habeas corpus petition filed on behalf of a child is not just on illegal detention but on ensuring that the interim custody of minor pending its determination by a Guardian Court…..consideration in such matter was the welfare of minor.
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PLD 1997 S.C 852
In case of section 491 Cr.P.C, 361 & 363 PPC….. indicate that mother is entitled to hizanat of her male child below 07 years of age.

2021 YLR 1267 Peshawar
Application u.s 491 Cr.P.C for the custody of minor was dismissed on the ground that the minor seemed comfortable in the custody of his father…. Validity… mother was a symbol of sacrifice for her children and there was no substitute for her love and affection…. Even otherwise she had a right of hazanat under Islamic law. Age of minor is 3 ½ years… constitutional petition was allowed and the custody of minor was handed over to the mother petitioner.
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2001 SCMR 1782 (delay in filing 491 Cr.P.C)
A petition U.S 491 Cr.P.C was filed by the mother after almost six months of cause of action, the august Supreme Court held that there was no explanation of delay in reporting the removal of the minor from the custody of mother. The custody of the minor with the father was found not to be illegal.
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PLD 2004 SC 1
The Court should not go into technicalities of law and should decide the matter before it in view mainly of the welfare of the child.
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PLD 2012 SC 758 (when section 491 is exercised in case of minor)
That jurisdiction u.s. 491 Cr.P.C is only to be exercised where the children of every tender age have been snatched away from lawful custody quite recently and there is real urgency in the matter. In the said case, the children were neither found to be of tender ages nor snatched away from the mother and it was held that the case was not made out for exercise of jurisdiction of section 491 Cr.P.C.
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2018 SCMR 427 (Section 491 can be filed during the pendency of a case before Guardian Court)
…. Held that the guardian court is the final arbitrator for adjudicating the question of custody of children….however, where a parent holding custody of a minor lawfully has been deprived of such custody, such parent cannot be deprived of a remedy to regain the custody while the matter is subjudice before the guardian court. Therefore, in exceptional cases (like the instant case) where the high court finds that the best interest and welfare of the minor demand that his/her custody be immediately restored to the person who was lawfully holding such custody before being deprived of the same. The court is not devoided of jurisdiction to pass appropriate orders u.s 491 Cr.P.C directing that custody be restored to that person as an interim measure pending final decision of the Guardian Court, while the tender age of the minor is always a material consideration but it is not the only consideration to be kept in mind by the High Court. Other factors like best interest and welfare of the minor… the urgency to take appropriate to minimize the trauma, emotional stress and educational loss of the minor are equally important and also need to be kept in mind while granting and refusing an order to restore interim custody by the High Court. The two provisions of law namely section 491 Cr.PC & section 25 of the Guardian & Wards Act deal with two different situations. The first to cater for an emergent situation while the latter to give more long term decisions regarding questions relating to the guardianship of minors.
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05/03/2023

RULE REGARDING CANCELLATION OF BAIL

2023 SCMR 308(d) (cancellation of bail-rule)
…..no hard and fast rule can be laid down that bail shouldn’t be canceled merely for the reason that the trial has commenced or is likely to commence because every case is to be examined in the light of its own facts.......................................................................................................................

26/02/2023

RULE REGARDING PRODUCTION OF DOCUMENTS IN EVIDENCE ....

2022 MLD 752 Islamabad (note ‘D’) (document which has not been produced and proved in evidence but only marked cannot be considered)
…It is well-settled law that the document which has not been exhibited cannot be read in the evidence. It is also well settled that no conviction can be based upon the evidence which has not been put to accused in his statement U.S 342 Cr.P.C…… 2011 SCMR 1013….”we are not convinced that such document which has not been produced and proved in evidence but only marked can be taken into account by the courts as a legal evidence of a fact”.

26/02/2023

RULE REGARDING PRODUCTION OF WITNESSES ......

2022 MLD 752 Islamabad (note ‘C’):
….. prosecution can only produce the witnesses whose names are mentioned in the calendar of witnesses but when the prosecution wishes to examine a witness whose name is not mentioned in the list of witnesses, it should not claim as a right but shall be required to file a petition U.S 540 Cr.P.C and shall be required to satisfy the conscious of the court that such examination is necessary for discovery of truth …. 2020 MLD 942, 2018 YLR 2490, 2006 YLR 3212.

26/02/2023

DEFAMATION CASES

2011 CLD 1 Lahore (a defamation case was dismissed on the grounds…)
The plaintiff filed a suit for recovery of Rs. ____ million for committing defamation. Both parties are public servants. The plaintiff was appointed as principal at a government degree college while the respondent was serving there as assistant professor… against whom the allegation was that the remarks “work and conduct both are below average” was repeated in a private meeting in presence of college faculty, students and private persons but no particulars of date, place, or contents of alleged slander or names of persons before whom such remarks were made are given in the plaint. …Held…. For the wrongful act of defamation, it is necessary that the communication of the defamatory material was made to at least one person other than the person defamed. (Sec 2(e) of Defamation Ordinance). The particulars of the such recipient of communication are necessary to allege that the plaintiff was defamed. The plaint lacks any particulars of communication. It is essential that the objected communication and the person to whom it is made be stated in the pleadings and particulars about the slander are given to the extent that the essential ingredients of the falsity of the statement injury to the reputation must be evident from the pleadings. Hence plant fails to disclose the cause of action.
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2022 CLC 1397 (jurisdiction of Civil Courts for defamation cases is not barred……. suit before civil court or before district judge under defamation ordinance 2002….. any one of the remedy can be availed…)
Plaintiff filed a suit for recovery of damages of Rs. 350.50 million in lieu of libel committed by defendants contending that on ____ at ____ the defendant filed a meeting through his cellular phone and aired after fabrication due to malice and grudge which caused damage to the plaintiff…. During pendency of suit, plaintiff filed an application for return of plaint U.Order 7 rule 10 CPC for return of plaint which was accepted by the learned civil judge hence this appeal has been filed…. Held ….. civil court to entertain suit for defamation was no specifically ousted by defamation ordinance…… jurisdiction of civil court and district court in this regard is not concurrent and it was option of aggrieved person to avail remedy where he wants….to file suit before civil court or avail remedy before district judge under defamation ordinance 2002….. however after selecting one of the multiple remedies, the other remedy would become completely barred…..defamation ordinance is special law and principle is that special law will prevail subject to condition that special law special law contained provisions of ouster of jurisdiction of civil courts. Defamation ordinance 2002 did not contain any ouster clause in respect to the presenting the plaint before the civil court…….plaintiff availed the option of filing the suit before the learned civil judge, therefore the same is not against the law…..
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PLD 2022 Lahore 793 (both civil remedy by filing suit for Defamation under Defamation Ordinance, 2022 and criminal remedy can be availed simultaneously)
Background: ‘M’ accuses ‘A’ of causing harassment and shares this allegation publically through social media. ‘A’ files a suit for defamation against ‘M’ in the Court of District Judge under Defamation Ordinance 2002. Afterward, ‘A’ also files a complaint to FIA, on which FIA takes action under section 20 of PECA, 2016 (offenses against the dignity of a natural person) ….
The petitioner also took the stance that both civil & criminal remedies cannot be availed at a time…
…Held… it was held that section 11 of the Defamation Ordinance, 2002 itself allows criminal proceedings.
Section 11: ‘Ordinance does not prejudice action for criminal defamation’. petition dismissed with costs.
(for more judgments, visit page 'Advocate Yasir Habib'. All rights including copyright are reserved).

26/02/2023

SECTION 420 & 406 PPC (cheating and breach of trust)

2022 SCMR 2040 (Section 406, 420, 468, 471, 489-F, PPC)
Fraud with an overseas Pakistani……allegation against an accused was that he entered into an agreement to sell his immoveable property / land with the complainant. Complainant paid 4.40 million and the accused also got transferred two plots of the complainant to some persons and received sale consideration…..the accused issued cheque of Rs. 2.60 million rupees for transfer fee but the same was dishonored…..it was found that the accused did not have any land which could be transferred….The offences did not fall within prohibitory clause but this principle is not absolute. Rather it depended upon the facts and circumstances of case….bail refused..…
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2018 YLR 209 Karachi (406, 420,468,471,201 PPC)
Accused imposed herself as original owner of house before the authorities and she managed to issue a fake CNIC and got the said house mutated and sold out to co-accused who just after purchasing the same managed to get finance from the bank and thereafter he avoided to pay the loan…..HELD…… fraud of accused person is very much clear from the fact….the case does not falls within the ambit of prohibitory clause but strong evidentiary evidence is available against the accused. (Bail refused)..
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2021 PCr.LJ 545 Karachi
….Magistrate acquitted the accused under section 249-A Cr.P.C on the ground that section 420 and 406 PPC has different ingredients and as such the accused could not be convicted for both offenses at the same time. Appeal against acquittal u.s 417(2-A) Cr.P.C was filed…. Held ….. trial court was duty bound to examine the contents of FIR, material and evidence submitted with the charge sheet and it could omit any of the sections of law for which the accused could not be tried but could not acquit the accused in the middle of the trial on the ground that conviction on both sections would be illegal. (Case remanded).

26/02/2023

GENERAL GROUNDS (BAIL)

• 2020 SCMR 871
….. Mere involvement of an accused in other criminal cases (without any conviction in any of them) could not be a ground to withhold the concession of bail….

19/02/2023

489-F PPC (Cheque Dishonored Cases)

• 2022 MLD 31 Islamabad (FIR Quashed)
… in the present case, it is proved that at the time of lodging of earlier FIR, the complainant already had a bounced cheque from the same party. He might lodge FIR simultaneously or may describe these cheques in any earlier FIR but the complainant, after getting the decision of one FIR, lodged another FIR in this way he misused the process of Law ……. It becomes a regular practice that multiple post-dated cheques are obtained regarding some monetary obligations. After getting the same dishonored by depositing in different bank branches, criminal cases are initiated one after another. In this way, the person who issued the cheques is forced to enter into a compromise ……… it is the duty of the concerned Magistrate to use power U.S 63 Cr.P.C. however, these dishonored cheques may still be used for the purpose of suit for recovery.
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• 2012 MLD 1551 Sindh (quashing of proceedings U.S. 561-A Cr.P.C in case of outdated/stale cheque, 489-F PPC case)
A cheque, after 6 months of its issuance becomes stale (outdated cheque) and was presented for payment before the bank. It seems that the complainant knowing that the cheque would not be encashed, presented it for payment merely to bring a case against the accused U.S. 489-F PPC. The primary consideration which needs to be kept in mind is whether the continuation of proceedings before the trial court is waste of time or abuse of the process of the court or not? High Court quashed the proceedings U.S 561-A Cr.P.C without waiting for the trial court to decide an application for acquittal u.s. 249-A Cr.P.C.
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• 2021 PCr.LJ 1071 Lahore (proceedings could not be initiated on the basis of stale cheque / outdated cheque)
… criminal proceedings could not be initiated on the basis of a stale cheque….even on civil side, the court could refuse to entertain claims based on the stale cheque. Respondent knew that the cheque in question would not be encashed yet he presented the same merely to bring the case against the petitioner U.S 489-F. complainant did not approach the court of Justice of Peace with clean hands, his conduct is malicious…. order passed by a justice of peace for registration of case is set aside.
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• 2005 CLC 797 Karachi (stale cheque / out-of-date cheques)
Presentation of the cheque before the bank after the expiry of six months from its issuance…. The same would become out of date or stale and the suit based on such a cheque cannot be decreed. Further reference 1994 MLD 271 Habib Bank Vs Jamil ur Rehman’s case.
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• 2021 SCMR 827 (pre-arrest bail granted)
…. Petitioner, who is present in person with his learned counsel submits that he is ready to pay the whole disputed amount in two cheques to the complainant if some reasonable time is allowed to him. The complainant present with his counsel accepts this offer…….held……. Petitioner is directed to pay the whole amount of two cheques to the complainant within a period of one month and till then he shall not be arrested and in case of failure, the police shall be at liberty to arrest him in this case..(pre-arrest bail granted).
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• 2021 SCMR 1466 (Bail refused)
….. the instrument carries a wording on its back as “shorty”, however, the petitioner has not been able to point out any clause of contract/agreement or any portion thereof in the performance thereof the petitioner purportedly stood surety….. (Bail refused).
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2022 PCr.LJ 1657 Lahore (post-arrest bail granted)
…. Regular and smooth business relationship between the parties accused had been paying due amounts to complainant…..dishonest intention at the time of issuance of cheque requires a determination by the trial court… case of accused was one of further inquiry….. offense did not fall within prohibitory clause…..accused was admitted to post-arrest bail…..
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2022 MLD 329 Islamabad (post-arrest Bail granted)
….. business relationship between the parties….. cheque was issued against business transaction….. I.O. admitted that the accused had made a partial payment to the complainant….accused was previously a non-convict…. Case of further inquiry…. (Bail granted)
post-arrest
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2013 SCMR 51 (Every transaction where a cheque is dishonored may not constitute an offense)
….. Every transaction where a cheque is dishonored may not constitute an offense. The fundamental elements to constitute an offense under this provision are the issuance of a cheque with dishonest intention; the cheque should be towards repayment of a loan or fulfillment of an obligation and lastly that the cheque in question is dishonored….
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PLD 2016 SC 171, 2022 YLR 1046 Islamabad) (pre-arrest bail canceled)
The accused has been admitted pre-arrest bail by the high court on the ground that section 489-F PPC did not entail any recovery to be effected from the accused person…. Held ….. that such view is against the scheme of Cr.P.C because it had not been appreciated by the honorable judge that the arrest of an accused person during the investigation of a criminal case is not meant only for effecting of recovery from his possession but the such arrest is made for the purposes of investigating the circumstances of the case and collecting evidence and recovery where required is only one of the components of the investigation. If the view of the judge of the high court is allowed, then pre-arrest bail may not be refused to an accused person even in a case of r**e or in a case of murder by throttling or even in the case of planning for terrorism where recovery may not be relevant. (pre-arrest bail canceled)..................................................................................................................

2022 YLR 1046 (pre-arrest bail canceled)
…. Accused is nominated in FIR, and the issuance of a cheque by the company of the accused and its dishonoring by the bank have been admitted, it is admitted that the company of the accused executed an agreement with the complainant’s company. An amount was liable to be paid by the accused company to the complainant’s company. Cheque issued by the accused was dishonored by the bank, on the ground that payment was stopped by the drawer. Learned counsel for the accused has not shown any malafide and ulterior motive against the complainant or police for the registration of FIR. There is sufficient material on the record to connect the accused with the commission of crime pre-arrest bail granted by ASJ is hereby canceled. .....................................................................................................................................

2022 YLR 2176 Islamabad (bail after arrest dismissed)
…. Accused had issued a cheque in furtherance of compromise deed filed before a court to secure bail from the court either knowing that the band account on which the cheque was drawn was already closed or closing the account after bail….. held ….. cheque was issued towards the fulfillment of an obligation, i.e. compromise deed….. that issuing a cheque against a closed account was irrefutable evidence of dishonesty. Bail petition u/s 497 dismissed.
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2022 MLD 1065 (sindh) (pre-arrest bail dismissed)
… cheque was issued by the applicant for the fulfillment of business obligations with the knowledge that a sufficient amount is not available in the account… thus there was prima facia the element of dishonesty on the part of the applicant. Pre-arrest bail Petition u/s 498 Cr.P.C is hereby dismissed.
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2016 PCr.LJ 323 Lahore (cheque issued in terms of agreement is a cheque which was not issued to create any liability and its dishonor does not make any offense)
Cheque in question was issued by the accused in backdrop of a settlement arrived at between the parties in terms of the agreement in a criminal case. Ex-officio Justice of peace passed a direction for registration of FIR as a cheque was dishonored. The same order was upheld by the learned single judge of the High Court. The cheque in question was given in terms of agreement and it was not issued to create any liability as alleged in the application for registration of the case and the cheque was not issued for re-payment of the alleged amount and it reveals that the alleged cheque was not drawn for the discharge of debt. The cheque issued in terms of the agreement is a cheque that was not issued to create any liability and its dishonor does not make any offense U.S 489-F PPC. The complainant did not knock the door of Ex-officio justice of peace with clean hands. Orders passed by the Justice of Peace and high court were declared null and void.

OPPOSITE VIEW

2013 PCr.LJ 400 Peshawar
The accused entered into an agreement with the complainant regarding a bargain of some property and issued a cheque in question as guarantee/security which got dishonored on presentation on account of insufficient funds. the contention of the accused was that the cheque in question had only been issued as a guarantee/security against a bargain struck between the parties…. Validity… accused admitted issuance of the cheque as a guarantee regarding the transfer of suit property, word fulfillment of obligation used in 489-F PPC amounted to a guarantee for a certain commitment, therefore, the case of the accused prima facie comes within the ambit of 489-F PPC. The accused issued the cheque as security knowing that there was an insufficient amount laying in his account. ...................................................................................................................

2022 MLD 752 Islamabad (grounds of acquittal in this particular case)
Accused was acquitted in case U.S. 489-F PPC on the following grounds:
• Unexplained delay of 3 years in lodging FIR;
• It was alleged that the brother of the complainant sold his land and paid an amount …. But no evidence of selling the joint property of the complainant and his brother was produced before the trial court…..no agreement of investment/paying the money to the accused executed between the accused and the brother of the complainant has been produced in the evidence;
• The complainant has also not handed over the original cheque and dishonor slip to the I.O during the investigation and the I.O has not investigated the said facts from the bank;
• Branch service officer appeared and recorded his statement whose name was not mentioned in the list of witnesses….no application was filed U.S 540 Cr.P.C by the prosecution;
• Whenever a cheque is presented in the bank, it is signed by the presenter as well as signed and stamped by the officer of the bank but the cheque did not contain any signature;
• The complainant produced a compromise deed allegedly signed by the petitioner in the evidence as Mark-A, wherein the petitioner accused admitted his liability but the complainant has also admitted in cross-examination that when the compromise deed (Mark-A) was executed, the accused was in police custody but the said compromise deed (Mark-A) was neither exhibited in evidence nor it was put to the accused in his statement U.S 342 Cr.P.C.
• Civil Suit U/Order 39 CPC was also dismissed by the court of District Judge.
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19/02/2023

FATAL ACCIDENTS ACT, 1855
2015 YLR 2053 Karachi (Rs. 64,00,000/- Decreed)....The plaintiff got several injuries in a traffic accident….. the driver of the bus (Defendant No. 2) who is a servant/employee of defendant No. 1 drove the buss in a rash and negligent manner and the bus turned turtle on the other side of the road and took a couple of turns. The passengers got fatal injuries by actionable wrong, negligence of the driver and the plaintiff became paralyzed…….. held ……. Negligence is established by virtue of invoking the principle of “RES-ISPA LOQUITOR” (the thing speaks for itself). This principle is applied when the circumstances of the accident are most consistent with the existence of negligence……. Site sketch, FIR, memo of site inspection, and newspaper clipping are sufficiently indicating that ….. reliance is also placed on number of judgments including 2006 SCMR 207 where it is settled that it is the duty of the plaintiff to prove the factum of the accident whereafter the burden is shifted upon the defendant to prove that the accident occurred due to his or others negligence. (Rs. 64,00,000/- decreed)

10/02/2023

PRIVATE COMPLAINT U.S 200 Cr.PC

PLD 2020 SINDH 94 (remedy against dismissal of complaint u.s 203 Cr.PC is to file a criminal revision before Court of Sessions)
....A complainant was filed U.S 200 Cr.P.C which was dismissed by the Magistrate without framing of charge and before commencement of trial U.S 203 Cr.P.C…… the remedy is to file a criminal revision before the court of sessions…….
for more judgments, visit page "Advocate Yasir Habib"All rights including copyright are reserved.

31/01/2023

JUDGMENTS ON ILLEGAL DISPOSSESSION ACT 2005

PLD 2016 S.C 769 (under Illegal Dispossession Act 2005, the complainant need not to establish that the accused is a professional land grabber or qabza group…)
….. For prosecuting an accused under Illegal Dispossession Act 2005, the complainant need not to establish that the accused is a professional land grabber or qabza group…… the Court had to see whether the accused nominated in the complaint had entered into or upon the property in dispute in order to dispossess, grab, control, or occupy it without any lawful authority….. Illegal Dispossession act 2005 identified the offence but not categorized any class of offenders. ….. . hence …. Set of cases 2009 SCMR 1066, 2010 SCMR 1254, PLD 2010 S.C 725 is good law and findings PLD 2010 S.C 661, 2012 SCMR 1533 which restricts the scope and applicability of act 2005 to the extent of Qabza group only is not a good law.

OPPOSITE VIEW

2022 MLD 630 (Illegal Dispossession Act 2005 applies only in case of dispossession from the immoveable property by property grabbers/land mafias/ qabza groups only)
A complaint was filed under section 3 & 4 of Illegal Dispossession Act with the stance that the complainant is a lawful owner of the land and four years ago, the accused with malafide intention grabbed the land, dispossessed the complainant and took illegal possession of land and started cultivation over it…….. held…… the main object and purpose of Illegal Dispossession Act 2005 is to curb the activities of property grabbers. Therefore, the Act applies only to dispossession from immovable property by property grabbers / land mafias. The Act does not apply to the alleged cases of dispossession by ordinary persons who cannot by any stretch of imagination be termed as land grabbers/mafia / qabza group, this includes cases of disputes over possession of immoveable property, between co-owners, co-sharers, landlord, tenant, persons claiming possession on the basis of inheritance, and between persons claiming possession on the basis of titled documents in their favor, ongoing private disputes. ….. in the case in hand, the complainant did not allege that the accused belonged to qabza mafia or land grabbers…. Why the complainant kept mum for the last four years (after illegal dispossession), mode of dispossession did not mention in the complaint …. From the facts, it is suggestive that the matter between the parties is of civil nature. Section 3 of the Illegal Dispossession Act 2005 is not made out. (dismissed)............................................................................................................................

2022 PCr.LJ 1603 Sindh (Application for interim relief U.S 7 of Illegal Dispossession Act 2005 should be entertained during the trial, after hearing both the parties)
Complaint U.S 3 & 5 of illegal dispossession act was filed with the facts that the complainant is a lawful owner in possession of it since its purchase and on ____ at about ____ the accused persons forcibly dispossessed him. The Court called the report from SHO and Mukhtarkar concerned. Then the complainant filed an application U.S 7 & 8 of illegal Dispossession act 2005 praying therein that till the disposal of the complaint, the possession of land may be restored to the complainant and the same was accepted by the learned trial Court …..Held…… that as per Illegal Dispossession Act 2005, grant of interim relief is subject to the condition “during trial”…. Trial of accused would not start unless relevant documents are supplied to him in terms of section 265-C of Cr.P.C which shall then lead to a charge under section 265-D of Cr.P.C, then the second step of recording of evidence starts and condition provided in section 7 of the Act 2005 come into force. The impugned order passed by the ASJ (through which he accepted application u.s 7) is set aside. Trial Court is directed to decide it afresh after framing the charge and hearing the parties of the complaint.
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2022 MLD 1109 Karachi Held that once cognizance was taken under Illegal Dispossession Act 2005, the complaint could not be dismissed. 265-K Cr.P.C is not for cases registered upon complaint. The dispute could not be resolved by acquitting the accused U.S 265-K Cr.P.C….
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2022 MLD 1232 Islamabad …. In a complaint under Illegal Dispossession Act 2005, the complainant has to prove that the land was in his possession and he was illegally and without adopting a due course of law dispossessed from the said land with specific reference to time and date……
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2022 MLD 1232 Islamabad ….. No bar exists in simultaneous proceedings under Civil Suit and complaint under Illegal Dispossession Act, 2005. Act 2005 provides timeline (60 days) for the decision of the case……
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2022 PLD 427 Lahore .….It was held that section 3 of the Illegal Dispossession Act 2005 is non-compoundable…..

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