1985 P Cr (PLP)

Khalil Ramday, Additional Advocate‑General for the State. Date of hearing: 3rd November, 1984. This judgment will dispose of a writ petition (W.P.No.4820 of 1984) and a miscellaneous petition (Cr.M.607/M‑84), both filed by Habib Ullah, petitioner against the order of a Magistrate 1st Class of Mianwali dated 6‑3‑1984 and that of a learned Additional Sessions Judge of Mianwali dated 17‑9‑1984, refusing to release the rifle and the licence of the petitioner.

2. The brief facts of the case are that a criminal case was registered against Habib Ullah, petitioner, and two others for an offence under section 307/34, P.P.C. at Police Station Piplan on 19‑10‑1978 relating to a certain dispute over land. During the investigation, the petitioner's rifle P.2 and its licence were produced by one Ghulam Rasul, the uncle of the petitioner, before the police on 3‑11‑1978 and taken into possession by the police as case property. During the trial, all the eye‑witnesses were examined, who supported the prosecution case by specifically stating that Habib Ullah, petitioner, had fired with his rifle. However, before the judgment was announced, the case was compromised between the parties and, in terms of an application made by them under section 494, Cr.P.C., the District Magistrate, Mianwali, on 25‑2‑1984 granted permission for the withdrawal of the case and the trial Magistrate on 6‑3‑1984 acquitted the petitioner and his companions of the charge, but ordered the forfeiture of the case property in favour of the State. The petitioner then filed a revision against the said order, in so far as it related to the forfeiture of the case property in favour of the State, and requested that his rifle and licence be returned, which revision was rejected by an Additional Sessions Judge on 17‑9‑1984. The petitioner, thereupon, filed a miscellaneous petition (Cr.M.607/M‑84) under section 561‑A, Cr.P.C. before this Court for the restoration of the rifle and the licence to him. During the arguments of the said case, the learned counsel for the petitioner desired to convert his miscellaneous petition into a writ petition, which request was allowed by this Court on 13‑10‑1984. However, the petitioner filed a fresh writ petition (W.P.4820 of 1984). Both the miscellaneous petition and the writ petition are now before me for disposal.

3. In the first instance, the writ petition (W.P.No.4820 of 1984), which came up in motion today, was admitted to hearing and the Additional Advocate‑General, who was present in Court, accepted notice. Since the case has been argued fully, this writ petition will be disposed of today with the miscellaneous petition.

4. I have heard the arguments of the learned counsel for the petitioner and the State. Habib Ullah, petitioner, having been acquitted by the trial Magistrate on 6‑3‑1984 in respect of the offence under section 307/34, P.P.C., he shall figuratively be treated as one not having committed the offence or as one against whom the prosecution A has not been able to establish its case with regard to the said offence. In this view of the matter, the refusal of both the lower Courts to release the rifle P.2 and its licence, taken into possession vide memo. Exh. P. C., appears to be without lawful authority.

5. For the foregoing reasons, this writ petition (W.P.4820 of 1984) is accepted and the orders of both the lower Courts dated 6‑3‑1984 and 17‑9‑1984, in so far as they relate to the confiscation of the B petitioner's rifle and ltcence in favour of the State, are hereby declared to have been passed without lawful authority and shall have no legal effect. There shall be no order as to costs.

6. No further order is called for in the miscellaneous petition (Cr.M.607/M‑84), which is dismissed. M. Y. H. Petition accepted.