HIDAYATUR REHMAN ALIAS KAKI JAN Versus SAMIULLAH KHAN

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.