2022 PLP 138 (YLR)

SYED MUHAMMAD FAROOQ SHAH, J.

By invoking the jurisdiction of this Court under Article 203-DD of the Constitution of Pakistan, Sardar Ahmed, the petitioner through the captioned Revision Petition made a prayer to set-aside the impugned Order dated 11.02.2019 passed by the Learned Sessions Judge, Peshawar, whereby recovered case property in case FIR No.88 dated 04.04.2013 under section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 registered at Police Station Machni Gate, Peshawar has been ordered to be restored to the accused Adil under section 517, Cr.P.C. It shall be advantageous to reproduce hereunder penultimate paragraphs 9 and 10 of the impugned order:- "

9. As in light of the aforesaid judgments of the learned trial Court and the Honorable Federal Shariat Court ownership of the complainant is not proved and it is established from the record that they have been recovered from house of the petitioner Adil, the person entitled thereto as owner is only Adil. It means that his petition filed under section 517, Cr.P.C. deserves acceptance.

10. Hence, the application of Adil given under section 517, Cr.P.C. stands accepted and the articles mentioned in recovery memo Ex.PW7/4 stand returned to him (Adil)."

2. Briefly stated story of the prosecution case as narrated in FIR by Sardar Ahmed, the complainant is that on 04.04.2013, he after offering Fajar prayer in a Masjid returned home, where he found his wife Mst. Khalida lying murdered and his daughter Mst. Amina Sardar in injured condition. The complainant further alleged that his private servant Khan Muhammad alias Janee with the help of his accomplices committed murder of his wife, caused injuries to his daughter and took away gold ornaments, prize bonds and net cash, etc. On 07.04.2013, the complainant Sardar Ahmed got recorded his supplementary statement before police and before Magistrate under section 164, Cr.P.C. on 08.04.2013, wherein he narrated description of robbed property and nominated accused namely Khan Muhammad alias Janee, Adil and Imran.

4. During investigation, the following robbed articles were recovered on pointation of accused Adil, from his house, on 09.04.2013, vide memo of recovery Ex: P-7/4:

01. One laptop HP-630 (P-1) 08.

02. One Camera Canon (P-2) 09.

03. One big pond 37.5 gram of gold (P-3) 10.

04. One big har pond wala (P4) 11.

05. One big har (P-5) 12. 06. 17 bracelets of different sizes and weights (P-6) 13.

07. One pair of earring (P-7) One earring (P-8) One pond bali (P-9) One chain (P-10) One locket with put chain (P-11) finger rings 6 (P-12) pair of tops 5 (P-13)

5. In his confessional statement, recorded under section 164, Cr.P.C., before the concerned magistrate on 12.04.2013, the accused Adil admitted the commission of offence; later on, retracted during commencement of trial. The trial was conducted against accused Adil/ respondent No.1, Imran and Khan Muhammad. During his statement recorded under section 342, Cr.P.C., in reply to questions Nos. 4 and 5 accused Adil denied with vehemence the recovery of case property and stated that it has been planted against him on behest of the complainant, and stated that in fact the gold ornaments and other articles were owned by his family and were taken away by the police. On conclusion of full dressed trial, all the accused were acquitted by the trial Court vide judgment dated 29.08.2017, rendered by the Learned Additional Sessions Judge-II, Peshawar, which was upheld by the Federal Shariat Court vide judgment dated 22.01.2018, passed in Crl. Appeal No. 24-I of 2017, filed against the acquittal of accused. On 15.01.2019, the accused Adil/respondent No.1 filed an application under section 517, Cr.P.C. for return of case property already restored to the complainant vide order dated 17.04.2013 under section 516-A, Cr.P.C. The application filed by the accused Adil/respondent No.1 under section 517, Cr.P.C. was accepted on 11.02.2019, as mentioned supra, hence the instant revision petition.

6. Arguments advanced by the learned counsel for the parties are considered and record has carefully been scanned.

7. Hafiz Waqar Ahmed Awan, learned counsel representing the petitioner/ complainant, at the outset while placing reliance on PLD 1970 SC 343, titled Central Co-operative Bank Ltd., Sargodha v. Ahmed Bakhsh, 1971 SCMR 774, Saeed Ahmad v. The State and anoter, 1973 PCr.LJ 1 Jalal Khan v. Sardar and another, AIR 1954 Madras 214 Muthiah Muthirian v. Vairaperumal Muthirian, AIR 1965 Orissa 198 Arjun Padhy and others v. State of Orissa and another, 2004 PCr.LJ 1169; Tariq Naveed Ahmed v. Allah Ditta and 2 another and 1981 PCr.LJ 1269 Bakht Ali and another v. The State, argued that mere acquittal of accused person from the criminal case did not ipso facto prove that he is also owner of recovered articles, especially in this case, when complainant has no previous enmity with the accused. Further argued that the stolen property/ gold ornaments not only recovered from the possession of accused Adil/ respondent No.1 but also from the possession of accused Imran who never claimed the same to be owned by him, nor approached any Court for return of the same. Next argued that the impugned Order is against the law and facts and is full of surmises and conjectures which is not sustainable.

8. Conversely, S. Shakil Khan Gillani, learned counsel representing the respondents relied on case law reported as 1990 Pr.LJ 731 Matwalli alias Mutalli v. The State, 1990 PCr.LJ 1661 Imdad Ali v. The State and 2005 MLD 1843 Sajjad Hussain v. S.P. City, Multan and 3 others. Learned counsel by supporting the impugned order argued that ownership of the complainant is not proved; therefore, the valuable property recovered from the house of accused Adil/respondent No.1 has correctly been resorted to him being exclusive owner of the same.

9. Conversely, Mr. Muhammad Shoail, A.A.G., KPK representing the State supported the learned counsel for the complainant with vehemence that the case property has already been restored/ returned to the complainant on Superdari by exercising powers bestowed under section 516-A, Cr.P.C. Now, at later stage the accused/ respondent Adil is claiming his ownership over the recovered case property which question cannot be determined by the criminal Courts as such domain vests with the civil Courts.

10. In the case reported in PLD 1970 SC 343, Central Co-operative Bank Ltd, Sargodha v. Ahmad Bakhsh, it has been held that: "In a proceeding under sec-tion 517(1) of the Code of Criminal Procedure it is hardly desirable to decide the question of title to the property concerned, nor is the criminal Court competent to decided it either. The question of title, if any should be left to be decided by the ordinary civil Court of competent jurisdiction. [P. 349] D In another case, reported in 1971 SCMR 774 Saeed Ahmad v. The State and another, it was observed that: "If the appellant is so advised, he may pursue his remedy in a civil Court, and no observations made by the High Court or the Courts below will, in any way, influence the trial of the suit. The appeal dismissed." The Division Bench of Karachi High Court in the case of Jalal Khan v. Sardar and another, reported as 1973 PCr.LJ 1 held that:-- "The mere acquittal of the accused persons in my opinion does not entitle Jalal Khan necessarily to the fact that the disputed money either belonged to him or was recovered from his possession as his own or otherwise that money is in no way connected with the alleged offence." Placitum (b). "I therefore am of the opinion that in view of the overwhelming evidence that initially the money in dispute was taken from the possession of the complainant Muhammad Hussain which found its way in the house of applicant Jalal Khan co-accused who later, on however, was acquitted as I have stated earlier does not entitle them to utilize somebody else property. I am supported in my view by the decision reported as Crown v. Khawaja Hyder Bakhsh Jaffri (PLD 1955 Sindh 25) wherein it was held that under section 517, Cr.P.C. the Judge has a discretion with respect to disposal of property, and he can under certain circumstances order the property to be given to a person other than the one from whose possession it was found, even though that man may not have been found guilty. The other case in point is reported as Ghulam Ahmad and others v. Azad J&K Govt. (PLD 1951 Azad J & K 6) wherein it was held that:-- "It is well settled principle of law that where there has been enquiry or a trial and the accused person is discharged or acquitted by the Criminal Court, that Court should ordinarily restore the property, the subject-matter of the investigation, to the person from whose custody it was taken. Section 517; Criminal Procedure Code provides summary procedure regarding the disposal of the property and an order under this section does not decide the question of the ownership of the property. It simply decides a right to possession till a civil Court decides the question of the ownership of the property. " In case reported in AIR 1954 Madras 214, titled Muthiah Muthirian v. Vairaperumal Muthirian, it has been held that:- "In normal circumstances, on acquittal or discharge, the property would be returned to the person from whom it was seized. But when there are circumstances showing that the culprit has not claimed the property as his specifically and when there are also no grounds to hold that the property could belong to him, and the question of ownership has not been gone into in the judgment and decided one way or the other and the discharge or acquittal is based upon inadequacy or doubtfulness of the proof offered, it would be unreasonable to returned the stolen property to the accused person. " In case reported in AIR 1965 Orissa 198, titled Arjun Padhy and others v. State of Orissa and another, it was held that:-- "Undoubtedly, the general rule is that when a property is seized from a person and he is acquitted of the charge, that property should be returned to him. But this rule is itself subject to several exceptions depending on the circumstances of each case and no accused person can also claim as of right, that the property seized from him should be returned to him. Here the clear finding of the Magistrate was that the property was in possession of the complainant. We are not here concerned with the question of ownership. It may be that the villagers, in general were the owners of the three handas, but they had been lawfully kept in the possession of the complainant. Once it is found that the accused persons took them away without permission and they were subsequently recovered from their possession by the Police, the Magistrate was justified in directing the restoration of the handas to the complainant. Mr. Murty fairly cited P.Chandriah v. Pamjwomi, AIR 1960 Andh Pra 122, where an earlier decision of the Madras High Court reported in Muthiah Muthirian v. Vairaperumal Muthirian, AIR 1954 Mad 214 was referred to in which the special circumstances where property seized from an accused may not be returned to him have been enumerated. The present case would come within some of the exceptions mentioned in that Madras decision." It was held in 2004 PCr.LJ 1169 Tariq Naveed Ahmed v. Allah Ditta and 2 another, that: "Controversy between both the claimants regarding ownership of the tractor can only be decided after recording of evidence and for this purpose, Civil Court is the proper forum."

11. Insofar as the case law relied upon by the learned counsel for the accused Adil/respondent No.1 is concerned; in the case of Matwalli alias Mutalli v. The State reported as 1990 PCr.LJ 731, licensed gun of accused was ordered to be restored to him in circumstances. Same was the position in the case of Imdad Ali v. The State reported as 1990 PCr.LJ 1661. Peculiar facts and circumstances of reported cases relied upon by the learned defence counsel are not attracting to the facts and circumstances of present case, hence distinguished.

12. In light of the settled principle, reproduced hereinabove, the disposal of the case property by the trial Court is discretionary under subsection (1) of section 517 of Cr.P.C., but the discretion of the Court should be exercised according to sound judicial principles and not arbitrarily or fancifully. Peculiar facts and circumstances of the present case transpire that looted property had been recovered from the house of accused Adil/respondent No.1 under proper memo of recovery. On his acquittal, the claim of accused Adil cannot be decided by the criminal Court being counter claim as the question of title, if any, should be left to be decided by the ordinary civil Court of competent jurisdiction. Keeping in view the peculiar facts and circumstances of this case, the case property which has already been given to the complainant/ petitioner on Superdari under the order of the trial Court will continue to be held by the complainant subject to proof of either party's title thereto in a civil Court of competent jurisdiction. Resultantly, the impugned Order dated 11.02.2019 is set-aside.

13. The revision petition is disposed of in the above terms. JK/6/FSC Order accordingly.