1985 (PLP)

‑‑‑S.88(6)(a)‑‑Evidence Act(I of 1872), Ss.100 & 11.0‑‑Attachment of property, release of‑‑Petitioner living jointly with accused absconders whose property attached in pursuance of Court order but movables belonging to petitioner also attached‑--Admittedly petitioner in possession of house and claiming ownership of movables lying therein on oath in his statement and this fact not seriously questioned in cross‑examination directed against him‑‑Impugned order of attachment of petitioner's movables set aside and articles in his possession ordered to be released to him, in circumstances. Muhammad Ali Shaikh for Applicant. Abdul Sattar Shaikh Addl. A.‑G. for the State. Date of hearing: 20th November, 1984. This revision application is directed against the order of District Magistrate, South, Karachi, dated 17‑8‑1984 whereby the application made by the applicant under section 88(6)(a) of Cr.P.C. for release of articles belonging to him lying in the premises No. 18‑B, Block‑II, Defence Housing Society, area was rejected. The facts were that Dr. Naseer A. Shaikh and his wife Mst. Majjabeen were declared absconder by a Magistrate of Rawalpindi and their property was attached in pursuance of the same under order of District Magistrate, Karachi. The goods allegedly belonging to Mst. Majjabeen lying in the premises No.18‑B, Block‑11, Defence Housing Society area were attached and some of them having been sold and delivered to the purchaser. But some articles are still lying therein. On 15‑9‑1982 the applicant had moved an application before the District Magistrate seeking the release of the goods and claiming that they belong to him. The applicant had examined himself in support of‑ his application and had stated that he had moved from his Bungalow in P.E.C.H.S., in 1976 to this Bungalow with all the articles which were attached and they belong to him. It is an admitted position that the absconder had gone to England in 1978. There was no evidence tendered on behalf of the prosecution to prove that the articles did not belong to the applicant. However, there is one aspect of the case which shows that some of the articles lying in that Bungalow and attached belong to the absconder and these were medical books for which the applicant had no use and, therefore, ordinarily they could not belong to him. What is important to note is that apart from this factor of the medical books lying in the said Bungalow, there was no cross‑examination directed against the applicant that the goods in question did not belong to him and since the applicant was living in the premises admittedly for a good deal of time the presumption under section 110 of the Evidence Act would be that the goods were owned by him. The said presumption could have been rebutted if the prosecution had led any evidence to the effect that the goods lying in the said Bungalow, and attached in August, 1982, did not belong to the applicant or that they had in fact belonged to the absconder. But no such evidence has been led by the prosecution and, therefore, we are left with merely the factum that the goods have been taken over at a time when the applicant was in possession of the same and that the applicant has claimed the ownership of the same on oath in his statement before the Court and that statement on eath has not been seriously questioned in the cross‑examination directed against him. In this view of the matter the presumption of ownership that goes with possession of articles under section 110 of the Evidence Act was quite clearly and squarely applicable in the case, but the same has been lost sight of in‑ the impugned order and the case was decided merely on the basis of ownership of the house which could not be regarded as the deciding factor in respect of the movables lying the said house at the time when the applicant was admittedly in possession of that house and had further established that he was in such possession since 1976 when his own house in P.E.C.H.S. was taken over by the Estate Department of the Government on rent. Hence the impugned order is hereby set aside and the articles which are in possession of the prosecution, out of the articles which were attached on 26‑8‑1982, are directed to be released to the applicant. This application is allowed. S. G. D. Revision allowed.