Accused died pending revision---

Citation Name : 2019 PCrLJ 131 ISLAMABAD
Side Appellant : MUHAMMAD SHARIF
Side Opponent : MUHAMMAD SADIQ
Ss. 3 & 4---Criminal Procedure Code (V of 1898), Ss. 265-K, 145(7) & 431---Illegally and forcibly occupying land---Accused died pending revision---abatement of revision---Scope---Dismissal of complaint---Accused, who died during pendency of revision, during his life time interfered into land of the petitioners and took over the possession of land illegally and petitioners filed complaint under Ss.3 & 4 of Illegal Dispossession Act, 2005---Two reports were obtained by the Trial Court---First one was submitted by the Investigating Officer and the other was submitted by Naib Tehsildar, which reports had clearly revealed that deceased/accused was in illegal occupation of land belonging to the petitioners---Contention of the petitioners, was that due to death of deceased accused, proceedings would not abate, but would continue against his legal heirs to the extent of illegal possession of disputed land---Material available on record had established that deceased accused, without any lawful authority, had illegally encroached upon the property in question---Trial Court was only required and prompted to form prima facie opinion of the title for the purpose of Illegal Dispossession Act, 2005, without prejudice to the final and authoritative adjudication on the matter of civil dispute, but there was no civil suit pending at that stage---Trial Court accepted application of accused filed under S.265-K, Cr.P.C., acquitted the deceased accused; whereas, law required that when the court had issued the process on being satisfied that prima facie case was made out and as such cognizance taken, could not be recalled or reversed, especially when charge had been framed by the Trial Court---Only course to be left in such eventuality to accused side was to assail such process before the appellate or revisional court as the law did not provide any power of review to the same court---Claim of the petitioners in such situation would survive despite the fact that accused was no more active and legal heirs of the deceased could be proceeded for the restoration of possession of the disputed land to the petitioners---Revision was allowed, impugned order passed by the Trial Court was set aside---Station House Officer concerned and Tehsildar, were directed to restore the possession of the disputed property of the petitioners within 30 days in accordance with the reports after demarcation on spot and would enter the same in revenue record for the future reference under the law.

Citation Name : 2018 PLD 178 SUPREME-COURT
Side Appellant : PROVINCE OF PUNJAB through Secretary Punjab Public Prosecution Department
Side Opponent : MUHAMMAD RAFIQUE
Ss. 6 & 23---Transfer of case from Anti-Terrorism Court to court of ordinary jurisdiction---Scope---Personal enmity over property---Admittedly there was a dispute of a plot where the occurrence took place---Prosecution's own case was that the complainant had filed a civil suit and on his application for initiation of contempt proceedings against the accused persons, a bailiff of the Court was appointed---Application of contempt of court and appointment of bailiff triggered the enmity which resulted in the present occurrence---Allegedly five persons fired specifically at complainant's wife (deceased) hitting on her legs, but till that time there was no allegation of creating terror and insecurity in the general public---Subsequently, it was alleged that 26 persons, in order to create terror and insecurity in the general public, made indiscriminate firing, but, such allegation was not supported from any source as neither any crime empty was recovered from the place of occurrence nor anybody else received even a scratch on his person due to said indiscriminate firing---Due to the alleged indiscriminate firing not a single bullet hit on the walls of the plot in question which were 2.3 feet high---Furthermore, according to the complainant party, two police constables, who were guarding the complainant, were present at the place of occurrence, but it was not alleged by the prosecution that they were restrained by the accused persons to discharge their duties or anybody fired upon them or threatened them---Bailiff of the court and police constables, never claimed that they were fired at or they were threatened by the accused persons, instead they were subsequently introduced as accused persons in the case for abatement ---Perusal of the allegations levelled in the FIR, the material so collected by the investigating officer and other surrounding circumstances of the case, showed that the present case was not triable under the provisions of the Anti-Terrorism Act, 1997---Appeal was dismissed accordingly.

Citation Name : 2018 PCrLJ 1513 PESHAWAR-HIGH-COURT
Side Appellant : MUHAMMAD ARSHAD
Side Opponent : State
S. 431---Khyber Pakhtunkhwa Child Protection and Welfare Ordinance (II of 2010), S. 53---Rape and sexual assault---Death of accused during pendency of appeal---abatement of appeal---Scope---Accused, after conviction was awarded imprisonment and also burdened with fine of Rs.2,00,000 (two lac)---Accused filed appeal against his conviction and sentences, but during pendency of appeal, he died---Appeal filed by accused who had been sentenced to imprisonment and fine would not abate on his death---Sentence of imprisonment would only be abated and not that of fine on his death pending hearing of appeal---Appellate Court could go into propriety and legality of sentence of fine even after death of accused---Usually a criminal appeal would abate on the death of accused, but S.431, Cr.P.C., seemed to have made an exception to the general rule---Under S. 431, Cr.P.C., appeal against sentence of fine would not abate by reason of the death of accused, because it was not a matter which affected his person, but one which would affect his estate.