' Muhabat Khan and 4 others have preferred petition under section 561-A, Cr.P.C. Against Sahib Gul and 11 others. The matter under dispute is that a murder case was registered at the instance of Muhammad Riaz vide F.I.R. No,81, dated 30-3-1982 of Police Station Lund Khawar. The respondents 1 to 3 of the present petition were charged in the said report. After the registration of the case respondents 1 to 3 were absconding and their property was attached under section 88, Cr.P.C. After the arrest of the respondents somewhere in 1994 the Illaqa Magistrate released the attached property belonging to Sahib Gul etc. On 28-7-1994.
2. During the attachment of the aforesaid property it was purchased by Muhabat Khan and his brother Abdul Ghafoor (now dead), the predecessor-in interest of petitioners 2 to 6 through a registered deed, dated 23-9-1988. On the basis of this registered sale-deed Mutation No,1717/1 was attested on 15-6-1988. Jamabandi for the year 1980-81 Exh.C.1 would show that besides Amir Gul, Sahib Gul respondent was the owner of land to the extent of 1/4th share.
3. The aforementioned murder case was compromised between the parties before the Additional Sessions Judge, Mardan at Takhat Bhai and accordingly passed the impugned order on 13-10-1994 whereby he acquitted the accused and directed the Illaqa Magistrate to deliver possession of 20 Canals and 3 Marla's of land belonging to the accused to Sahib Gull enabling him to complete the terms of compromise. The learned Additional Sessions Judge before passing the impugned order had satisfied himself by recording the evidence of the Patwari Halqa in respect of the title of land which is the subject-matter of the present dispute. Feeling aggrieved of the aforesaid order the petitioners Muhabat Khan and others have preferred the present petition.
4. I have heard the learned counsel for the petitioners, learned counsel for the respondents and the learned Assistant Advocate-General for respondent No,12.
5. The learned counsel for the petitioners argued that the impugned order was without jurisdiction and through illegal order the property owned by the petitioners was directed to be delivered to the respondents for the satisfaction of the compromise. A perusal of the petition would suggest that the petitioners had challenged the compromise as a whole with a request to release the property in dispute as the same was in the ownership of the petitioners by virtue of their title created by the registered sale-deed, dated 23-2-1988. It is important to mention here that during the execution of the aforesaid deed the property under dispute was attached under section 88, Cr.P.C. And the same was released on 28-7-1994. A bare reading of the compromise would show that Sahib Gul respondent was a party to the compromise and that he had indeed transferred 3 Jaribs of land to the heirs of the deceased through a mutation. The description of the boundaries of the land belonging to Sahib Gul have not been mentioned in the compromise. The learned counsel for the respondents produced certified copies of the plaint brought by Muhabat Khan and others in which Sahib Gull and others are defendants. It is Exh.C.3. The written statement in the aforesaid proceedings is supported by its production in this Court which is Exh.C.4.
6. The effect of civil litigation was not mentioned in the grounds of this petition but there is a reference to the same in the admitting note of this Court, dated 17-11-1994. According to the learned counsel for the parties the proceedings before the Civil Court are in progress and final decision is awaited.
7. This matter, therefore, relates to question of fact which would require recording of evidence and its proper appraisal. In the present petition, a correct adjudication cannot be arrived at. As the matter is already agitated before the competent Court of civil jurisdiction, it is the Civil Court which can give a decision with regard to the rights and obligations of the parties in relation to the disputed property.
8. I am, therefore, of the considered view that without commenting upon the rights and title of the parties to the disputed land, it would only be just and fair not to interfere with the matter leaving the same to be determined by the Civil Court. With these observations the petition stands dismissed. The abovementioned observations of mine and the observations made by the learned Additional Sessions Judge in his order, dated 13-10-1994 in respect of the land in dispute shall have no effect on the merits of the case pending before the Senior Civil Judge, Mardan.