1. ' ABDUL RAHIM KAZI, J.---Briefly the relevant facts are that a F.I.R. Being F.I.R. No,19/92 was registered at Soldier Bazar Police Station under section 121-A/123-A/153-A, P.P.C. Read with section 13 of the Prevention of Anti-National Activities Act involving the present applicant also Consequently after usual investigation the police has sent up the challah before the Special Court and, therefore, this application under section 561-A, Cr.P.C. Was filed with the following prayer:- "To promote the ends of justice, the Honorable Court may be pleased, to quash proceedings against the petitioner, in Special Court-I (S.T.A.), Karachi, pertaining to F.I.R. 19/92 of Soldier Bazar Police Station, Karachi."
2. ' During the pendency of this application, the applicant expired on 25th April, 1995 and a statement was made by his counsel on 27th April, 1995 with the prayer that this Court be pleased to dispose of the main Criminal Miscellaneous Application No,322 of 1994 as having turned infructuous. Orders were passed accordingly disposing of the main application as infructuous. Subsequently the counsel for deceased applicant has moved this application with the prayer that the main Criminal Miscellaneous Application be directed to be proceeded with. Notice was served on learned Advocate-General, Sindh and Mr. K.M. Nadeem, learned AA.-G. Is appearing for State has vehemently opposed this application.
3. ' We have heard Mr. Abdul Waheed Katpar, Advocate for the applicant. The learned counsel has submitted that the main application had been moved under section 561-A, Cr.P.C. And it not being an appeal, the same would not abate under section 431, Cr.P.C. He has further argued that the case can be proceeded with by this Court in spite of the death of the applicant. Reliance is placed on the case of Fariduddin Khan v. Emperor AIR 1936 All.
4. 313.
5. ' As against this learned Assistant Advocate-General has argued that the criminal liability is a personal liability; and that in the circumstances of the present case the main case before the trial Court stands abated on the death of the applicant and, therefore, this application would also stand abated.
6. We have given anxious consideration to the submissions of the learned counsel for the parties.
7. There is no cavil about the legal proposition that under section 431, Cr.P.C. It will be only the appeals which would abate and not any Miscellaneous Application. However, the facts of the present case show that the present applicant was involved in a criminal case which was pending trial before a Court of criminal jurisdiction and the application has been moved under section 561-A, Cr.P.C. For quashment of such proceedings. The said proceedings before the Criminal Court would stand abated automatically on the death of the accused as a criminal liability is a personal liability.
8. Reliance is placed on the Broom's Legal Maxims which reads as under:- "ACTIO PERSONALIS MORITUR CUM PERSONA: A personal right of action dies with the person."
9. The learned counsel for the applicant has submitted that it can be declared by this Court that the proceedings taken against the present applicant were itself unlawful and, therefore, the same can be ordered to be quashed. It may be observed that a prayer for abashment of the proceedings can be granted only if such proceedings are pending before any forum and no such C order of abashment can be passed with regard to something which no more exists. It would be pertinent to reproduce the provisions of section 561-A, Cr.P.C. Which reads as under:-- "561-A. Saving of inherent power of High Court.--- Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
10. The above provision would show that the said proposed prayer cannot be granted under the provisions of section 561-A, Cr.P.C. As regards the Allahabad case cited by the learned counsel for the applicant, it may be observed that the same has no bearing on the present case as in that case there was already a conviction awarded by the trial Court and a revision application was pending, thus there was stigma against the applicant which is not the case here. It may further be observed that every accused is presumed to be innocent until the guilt is proved against him. The application is dismissed.