2007 PLP 97 (MLD)

MUHAMMAD AFZAL SOOMRO, J.

Through this criminal miscellaneous application, the applicant has challenged the order, dated 10-3-2005 passed by the learned Additional Sessions Judge, Shikarpur in criminal revision, whereby the revision application filed by the applicant was dismissed as not maintainable. The relevant facts are that on 27-11-2000 SIP Mir Muhammad Abbasi impounded a Toyota Car bearing registration No.C-7689 Karachi, Engine No.K-0773025, Chassis No.K-E-30-518972, 1800 C.C., wherein three persons were travelling, who on enquiry disclosed their identity as

1. Hamid Shah, 2 Barkat Ali and 3 Hadi Bux Sarki. On their personal search, the SIP allegedly recovered two kilograms of Bhang (hemp) and three bottles of wine from the possession of Hamid Shah and Hadi Bux. The SIP then lodged F.I.R. being crime No.57 of 2000 at Police Station Hamayoon, showing the car to be the case property. The case was tried by the learned 1st Civil Judge & F.C.M., Shikarpur, who vide judgment, dated 8-6-2002 acquitted the above-named accused persons. However, while passing property order, it was observed that the car in question, having not been claimed by anyone, be confiscated to the Government It may be stated here that the judgment of acquittal passed by the learned 1st. Civil Judge and F.C.M. in the case was not appealed against. Subsequently, the applicant, on coming to know about order of confiscation, filed an application before the learned trial Court for restoration of the car in question claiming himself to be the owner. The learned trial Court by order, dated 30-10-2002 rejected the application holding it to be time-barred and meritless. The above judgment of Civil Judge was challenged in revision, which was heard by the learned IV-Additional Sessions Judge, Shikarpur. The learned Additional Sessions Judge also dismissed the revision with following observation:-- "The learned counsel appearing on behalf of the applicant/petitioner has conceded the objection and prayed to allow him to file the revision petition before Honourable Federal Shariat Court. There is substance, hence the request is allowed and the petition in hand is hereby disposed of as incompetent before this forum and he should approach the right forum to redress his grievance if he is aggrieved and dissatisfied with the order of the trial Court." Heard arguments. It was contended by the learned counsel for the applicant that both the orders passed by the learned lower Courts suffer from error of law. He further contended that the learned trial Court while rejecting the application for return of the car has not applied his mind to the fact that the case, in which the car was impounded, had ended in acquittal of the accused persons, disbelieving the prosecution evidence. Referring to subsection (2) of section 523, Cr.P.C. he submitted that the procedure in such a situation, where the owner of the property seized is unknown, is to issue a proclamation, but the learned trial 'Court after passing the judgment of acquittal directly ordered confiscation. The counsel further added that the finding recorded by the learned Magistrate that the application for return of car was time-barred, was erroneous, as it was not an appeal against acquittal. The counsel lastly contended that the learned Additional Sessions Judge in revision also did not apply his independent mind and dismissed the revision application filed by the applicant on technical grounds. The learned State counsel also did not support the order passed by the Courts below. I have heard learned counsel for the parties and perused the record carefully. The judgment of acquittal passed by the learned trial Court reveals that the accused persons were acquitted under the benefit of doubt. Nowhere in the said judgment there is any mention of the car in question that it was used in the commission of the alleged crime or its owner i.e. the applicant was, in any manner, connected with the offence. No doubt, the applicant should have approached the trial Court during proceedings of the case for restoration of the car in question in his favour on superdari, but for reasons known to him he did not do so. Be that as it may, after the conclusion of the case, when the applicant approached the trial Court for restoration of car in his favour claiming it to be his property, the trial Court was under obligation to consider the said application on merits by dilating upon the entitlement of the applicant over the car in question in order to meet the ends of justice. But the trial Court seems to have adopted shortcut and the application of the applicant was dismissed labelling it to be time-barred without taking into consideration the documents which the applicant had produced before it. So is the position in the order passed by the learned Additional Sessions Judge in revision. The trial Court has not quoted any provision of law to say that the application filed by the applicant was time-barred. Similarly, the view expressed by the learned Additional Sessions Judge in revision is also misconceived, as he must have gone through the relevant provisions that it was simply a revision against the order on application for restoration of case property and not an appeal. Considering the above situation, I am of the definite conclusion that the orders passed by the learned Courts below suffer from error of law. Consequently, both the orders are set aside. The matter is remanded to the learned trial Court with direction to consider the entitlement of the applicant by taking into consideration the documents, which the applicant has produced or produces. After that the trial Court shall pass an appropriate order as per law. Criminal Miscellaneous Application No.13 of 2006 stands disposed of. H.B.T./A-131/K Order accordingly.