1980 PLP 368 (SCMR)

MUHAMMAD AFZAL ZULLAH, J.‑Leave to appeal is sought from the order dated 19th September, 1979 of the High Court of Baluchistan ; whereby a writ petition arising out of a criminal case, was dismissed. The petitioner along with others was convicted on Ist August, 1977, for various offences including trespass on land and house in possession of Amir Bux respondent, after a trial under Criminal Law (Special Provisions) Ordinance, 1968. On an appeal the Commissioner set aside the conviction and remanded the case on 4th March, 1978. This time the accused were acquitted. But the said respondent challenged the order of acquittal and the case has again been remanded for retrial, by order dated 3rd September, 1979. The present petition arises out of an order for restoration of posses sion, passed after conviction. The respondent No. 4 had complained that the property which was the subject matter of offence of trespass continued to be in illegal possession of the convict. His application after due enquiry was allowed on 17th October, 1977 and order of restoration was passed. It appears that although the conviction was subsequently set aside but the order of restoration of possession was not disturbed. The petitioner, however, challenged the same through a writ petition which having been dismissed, he has sought leave to appeal. Learned counsel has contended : that the High Court misread the record in making the observation that the petitioner was again convicted after the remand ; that the matter relates to a civil dispute and the possession should not have been restored to the complainant ; and that in any case, the petitioner having been acquitted the order of restoration of possession should have been set aside. It appears to be correct that one link the lengthy litigation has not been correctly stated by the High Court in the narration of facts. But that does not affect the merits of the case. Learned counsel admits that the possession has by now been physically restored to the complainant. It also admitted that the appellate forum had the jurisdiction, in its discretion to set aside the order of restoration when remanding the case for retrial. But no such order had been passed in favour of the petitioner. He is facing prosecution for trespass and it is not certain whether he would finally be exonerated. The mere fact that the subject matter of the order is, or can be made, the subject of a civil dispute is not by itself sufficient to hold that the order of restoration is unlawful, improper or unjust. No justification has been made out for interference by this Court. However, it is observed that in case the petitioner is finally acquitted he may then move, in accordance with law for a proper order with regard to the possession of the property in dispute. This petition has no force and is accordingly dismissed. Petition dismissed.