P (PLP)

MAHMOOD KHAN KHAKWANI, J.‑--It is alleged by the pro secution that on the night of occurrence, Hayat complainant was sleeping outside in court‑yard and was awakened by noise from' inside his hut. He got up and saw the back wall of the but broken and also perceived three persons slipping away from near the place. He went after them and' with the help of Allah Diwaya and Dhani Bakhsh (P. Ws.) he managed to catch hold of Dhollen accused‑petitioner. The other two co‑accused were chased by the witnesses and they attempted to ride on a mare, but seeing the witnesses approaching close to them. they made good their escape and left the mare behind, which was taken into possession by the witnesses. On searching the clothes of the petitioner, stolen ornaments were found in his possession. Upon these facts, the petitioner was convicted under section 457 Pakistan Penal Code by the trial Court, and the mare alleged to have been used for the commission of the offence was confiscated in favour of the Government under section 517 Cri minal Procedure Code. On appeal to the Sessions Judge the nature of offence was altered into 379 Pakistan Penal Code and the order of confiscation was maintained. This revision is both for the setting aside of the order of conviction as well as the order of confiscation of the mare. The learned counsel for the petitioner has conceded on arguments before me that the order of conviction is based on satisfactory evidence and it may not be interfered with. No doubt, the prosecution case is proved to the hilt. He has however contended that the mare belonged to Bahawal Bakhsh ( D. W.) who had given it for temporary use to the accused‑peti tioner for the purpose of delivering a letter to his nephew, and that its forfeiture to the Government under section 517 Criminal Procedure Code was illegal. The learned Government Advocate has contested the arguments advanced by the petitioner's counsel. Section 517 clause 1 of the Criminal Procedure Code provides that on the conclusion of an enquiry or trial, the Criminal Court may make such order as it thinks fit, regarding the confisca tion of property "which has been used for the commission of an offence". The moot point for determination in the present case would be whether the mare was used for the commission of the offence. The only available authority on the subject is 18 I. C. 171, in which references are made to I. Cr. L. J. 849 and Cr: L. J.

293. In the former case it was held that "a boat in which the accused escaped after committing an offence could not be: confiscated on the ground that it could not be regarded as the property used for the commission of an offence". It was however observed in that case that lathis or other instruments used for committing the offence could be dealt with under section

517. In the latter case it was ruled that a printing press used for the printing of seditious matter could not be said to have been used in the commission of offence under section 124 (A) Indian Penal Code. In the present case the mare which was intended to be used for the escape was ancillary to the commission of theft and was not its effective cause. The rule of law is that if a property which could not have contributed to the commission of an offence, being remotely connected with it, was made use of by an offender, that property could not be said to have been used in the commission of that offence. Under the present circumstances, the possession of a mare by the culprits was meant to take‑them to and from the place of occurrence, and it was not meant to be used like the implements for house breaking, and being only indirectly and distantly connected with the actual offences without the use of which the offence of theft could have been committed, it would be wrong to hold that it was used for the commission of theft. I therefore set aside the order of forfeiture of the mare with the result that the same or its sale proceeds shall be made over to the rightful owner. The revision against conviction is dismissed. Announced. A. H. Revision partly allowed.