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Criminal Miscellaneous No. 29‑Q of 1985, heard on 19th November, 1985.

‑‑‑Ss. 561 & 439‑‑Penal Code (XLV of 1860), S. 379‑‑Quashing of proceedings‑‑Trial Court while acquitting accused making no mention of case property‑‑Accused making application to trial Court demanding case property‑‑Trial Court dismissing application of accused with observation that case property had been given to complainant‑‑Revision filed by accused against said order of trial Court dismissed by Sessions Court for non‑prosecution‑‑Application of restoration of revision petition also dismissed‑‑Accused filing second revision petition which was allowed by Sessions Court‑‑Complainant filing petition for quashing before High Court against order of Sessions Court‑‑First revision petition having been rightly dismissed for non‑prosecution, held, there was no justification for entertaining second revision petition particularly when an application for restoration of earlier petition had also been dis missed‑‑Order passed by Sessions Judge on second revision petition quashed.

‑‑‑S. 439‑‑Revision petition dismissed in default by Sessions Court as neither revision petitioner nor his counsel put in their appearance despite repeated calls‑‑Petitioner making application for restoration on same day but no reasonable cause for non‑appearance of petitioner and counsel was shown in application‑‑Application for restoration dismissed‑ Revision, held, was rightly dismissed for non‑prosecution.

Muhammad Ramzan v. Allah Ditta 1982 S C M R 215 ref.

Rana Abdul Majid for Petitioner.

Abu‑ul‑Fateh for the State.

Muhammad Hussain Respondent in person.

Date of hearing: 19th November, 1985

The facts giving rise to this petition are as under:‑

On 13‑1‑1981 Bashir Ahmad petitioner herein lodged a report that six months back his bullock was stolen from his Dera. During the search, he learnt that the bullock was stolen by Muhammad Hussain respondent. He alongwith others, approached Muhammad Hussain for the restoration of the bullock. On 12‑1‑1981 Muhammad Hussain confessed before the Panchayat that he had stolen the bullock but the same had died a few days after the theft. He paid Rs.2,500 to the petitioner as the price of the bullock and requested him not to report the matter to the police. At the time of lodging the report Bashir Ahmad produced Rs.2.500 before the A.S.I. who took the same into his possession vide memo Exh. PB.

2. Muhammad Hussain respondent was tried and acquitted of the charge under section 379, P.P.C. The judgment however, made no mention of the case‑property, viz. Rs.2,500. On 7th April, 1982 the respondent made an application to the trial Court that an order in respect of Rs.2,500 be passed. On 15th April, 1982 the application was dismissed with the observation that the money had already been given to the complainant and aforesaid respondent was not entitled to get the amount. Against this order, the respondent, filed a revision petition which was dismissed for non‑prosecution by the Sessions Judge on 15‑9‑1982. Then, he made an application for restoration of the revision petition which, too, was dismissed on 16‑9‑1982. Then he filed a second revision petition on 20‑9‑1982 which was allowed on 7‑11‑1982 and it was ordered that the amount shall be returned to the accused (respondent herein).

3. Learned counsel for the petitioner contends that the procedure adopted by the learned Sessions Judge is a clear‑cut abuse of the process of Court. He submits that first revision petition was dismissed for non‑prosecution on 15‑9‑1982 and an application for its restoration, too, having been dismissed, there was absolutely no justification to entertain a second revision petition, particularly when it did not disclose any cause for the non‑appearance of the revision‑petitioner and his counsel on 15‑9‑1982. Reliance is placed on Muhammad Ramzan v. Allah Ditta 1982 S C M R 215. Learned State counsel states that the absence of the revision petitioner and his counsel on 15‑9‑1982 was not intentional, therefore, second revision petition was competent.

4. I have gone through the record and given my careful consideration to the submissions made by the learned counsel for the petitioner and the State. Revision against the order, dated 15‑4‑1982 was dismissed on 15‑9‑1982. The order shows that the respondent, in the revision A petition (petitioner herein) and his counsel were present but the revision petitioner and his counsel did not put in their appearance despite repeated calls. An application for restoration was made on the same day. In 'the application no reasonable cause for non‑appearance was shown. It was just stated that the appellant had come late. No reason for the non‑appearance of the counsel was mentioned. This applications was dismissed on 16‑9‑1982. Thereafter, second revision petition was filed on 20‑9‑1982. In this application, it was stated that the petitioner had earlier filed a revision petition but the same was dismissed for non‑prosecution but again no cause was shown for the non‑appearance of the revision‑petitioner and his counsel. In the case cited by the learned counsel, it was held that where a party and counsel both were fully aware of the date fixed for hearing but deliberately or without reasonable cause absented themselves on the date of hearing, the Court was justified in dismissing the case in default of their appearance. The first revision petition having been rightly dismissed for non‑prosecution, there was absolutely no justification for entertaining the second revision petition particularly when an application for restoration of the earlier petition had also been dismissed. The order, dated 7‑11‑1982 passed by the Sessions Judge on the second revision petition is, therefore, quashed.

The respondent if so advised may establish his claim in the civil Court.

H.A.K. Order quashed.

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