2018 P Cr (PLP)

MUHAMMAD AYUB KHAN, J.

Through the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner Mst. Farhat Afza has prayed that:- "In wake of submission made above, it is respectfully prayed that the impugned order of learned Sessions Judge Derajat, D.I. Khan dated 19.3.1952 regarding forfeiture of the immoveable property of Fazal Rehman Khan deceased (convict) be set aside and the entire property be released in favour of the petitioner and the revenue record may accordingly be ordered to be corrected."

2. As per contents of the petition, Fazal Rehman Khan (brother of Mst. Gulab Bibi) was unmarried and got involved in murder case and was sentenced to death and half of his entire immoveable property was forfeited to Government; that after his death, his entire property devolved on Mst. Gulab Bibi as his sole legal heir and being illiterate lady, she was misled that the property of Fazal Rehman Khan was resumed under Land Reforms and occupancy laws, therefore, she filed civil suit in 2005 challenging the resumption of immoveable property of Fazal Rehman but the same was withdrawn; that said Mst. Gulab Bibi was residing with the petitioner from 2000 till her death in the year 2008; that since she had no close relation to inherit her property after her death, therefore, she got written a will on 20.02.2001 in favour of petitioner and subsequently got it registered on 21.02.2001; that after death of Mst. Gulab Bibi, the petitioner got knowledge of sentence and forfeiture of property of Fazal Rehman somewhere in 2011, therefore, she filed civil suit before learned Civil Judge-III, D.I. Khan challenging the order dated 19.3.1952 of learned Sessions Judge Derajat, D.I. Khan which was dismissed on 21.01.2014 and appeal of the petitioner was also dismissed on 19.9.2014. The petitioner then filed revision petition before this Court which was partially accepted on 18.5.2015, the judgments of both the Courts were modified to the extent that the suit instead of dismissal be returned to petitioner with permission, subject to all valid objections by respondents, to approach the competent forum for redressal of her grievance, hence the instant petition.

3. We have heard the arguments of learned counsel for the petitioner, learned law officers representing the respondents and M/s. Salimullah Khan Ranazai and Zia ur Rehman Qazi, Advocates appointed as amicus curiae appointed vide order sheet dated 05.4.2017 and have gone through the available record.

4. The only point agitated by learned counsel for the petitioner at the bar is that prior to 1921, there was a provision under section 62, P.P.C. to forfeit the property in death cases but the same was repealed in 1921 by Indian Penal Code (Amendment) Act, 1921, therefore, the impugned order forfeiting the property of Fazal Rehman convict is without jurisdiction, illegal and not sustainable in law. The contention of learned counsel for the petitioner seems to be correct. Prior to 1921, order regarding forfeiture of property in respect of offenders punishable with death, transportation or imprisonment could be passed under the provisions of section 62, P.P.C. which was repealed by Indian Penal Code (Amendment) Act, 1921 (now Code of Criminal Procedure, 1898), therefore, the impugned order passed in the year 1952 was without jurisdiction.

5. For the reasons mentioned above, the instant petition is accepted and the impugned order dated 19.3.1952 of learned Sessions Judge Derajat, D.I. Khan to the extent of forfeiture of immovable property of Fazal Rehman Khan (convict) is declared without jurisdiction, illegal and not sustainable. For prayer that the forfeited property be released in favour of petitioner, she may seek remedy from proper forum if so advised. MH/223/P Order accordingly.