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Petitioner: HIDAYATUR REHMAN ALIAS KAKI JAN VS Respondent: SAMIULLAH KHAN
1988 P Cr
1988 P Cr. L J 48
[Peshawar]
Before Abdul Karim Kundi, J
HIDAYATUR REHMAN alias KAKI JAN--Petitioner
versus
SAMIULLAH KHAN and another--Respondents
Criminal Miscellaneous No. 613 of 1986, decided on 7th October, 1987.
Criminal Procedure Code (V of 1898)--
---Ss. 561-A & 522--Complainant/petitioner seeking quashment of order of Sessions Court by which said Court dismissed order of Magistrate restoring possession of disputed land to complainant after discharging accused honourably of offences under S. 447/379/427, Penal Code- Accused respondent having since died and criminal case against him standing abated, application filed by complainant/ petitioner under S.561-A, Cr.P.C. , held, had become infructuous--Petition for quashing of proceedings dismissed in circumstances--Petitioner, however, advised to seek his redress in Civil Court if so advised.
Abdur Rehman Khan for Petitioner.
Abdur Rahim Khan for Respondent. Mohammad Amin Khattak for the State.
Date of hearing: 7th October, 1987.
JUDGMENT
Samiullah Khan accused was honourably discharged of the offences in a case registered under section 447/379/427, P.P.C. vide F.I.R. No. 239 P.S. Umarzai, Tehsil Charsadda dated 18-12-1983 by the Magistrate 1st Class Charsadda but at the same time he ordered the restoration of possession of the disputed Khasra to Hidayatur Rehman complainant under section 522, Cr.P.C. vide his judgment and order dated 30-3-1986. His judgment was impugned by Samiullah Khan accused in appeal to the extent of the restoration of possession of the disputed land to the complainant while the latter filed a revision petition as against the order of discharge of the accused. The appeal and revision were jointly heard by the learned Additional Sessions Judge, Charsadda, who by his judgment and order dated 22-7-1986 accepted the appeal and set aside the order of the lower court in regard to the delivery of possession and dismissed the revision petition as against the order of discharge.
2. Hidayatur Rehman has filed the instant application under section 561-A, Cr.P.C. for the quashment of the judgment and order of the learned Additional Sessions Judge, Charsadda to the extent of the acceptances of the appeal of the accused against the orders of restoration of possession to him and the dismissal of his revision petition as against the orders of discharge of the accused-respondent. Samiullah Khan accused-respondent has, however, died pending the proceedings. He was accordingly substituted by his legal representatives.
3. At the very outset it was posed to the learned counsel for the petitioner that assuming there was some merit in his application under section 561-A, Cr.P.C. but the result on acceptance of his application would be the retrial of the case and since the accused respondent has died, a criminal case against him shall stand abated, while under section 522, Cr.P.C. the order of restoration of possession of immovable property can only be passed on and after the conviction of the accused. On the abatement of criminal proceedings against Samiullah Khan accused due to his death, there will not arise any question of his conviction and accordingly there will not arise any question of passing orders of the restoration of possession under section 522, Cr.P.C. In the state of affairs the Criminal Miscellaneous under section 561-A, Cr.P.C. is hereby dismissed having been rendered infructuous. Petitioner may seek his redress by a Civil Suit, if so advised.
M.Y.H./566/P Petition dismissed.