1992 PLP 307 (MLD)

Almost all the material facts in this case are either admitted or undisputed and may be briefly summed up.

2. On 18‑6‑1984 one Budhal lodged F.I.R. against accused Habibullah, Ashraf, Azizullah, Amanullah, Shabbir and applicant Moulvi Sher Muhammad at K.N. Shah Police Station. After usual investigation all the above accused except applicant Moulvi Sher Muhammad were sent up to stand trial for the offence under sections 148‑307/149, P.P.C. The name of applicant Moulvi Sher Muhammad was, however, dropped. A separate case under section 13‑D of the Arms Ordinance, 1965, was also registered against accused Habibullah son of applicant Moulvi Sher Muhammad who was found in possession of a gun for which he had no valid licence, which in fact belonged to applicant Moulvi Sher Muhammad who had a valid licence for the same. The police challaned this case also alongwith the main case. The trial commenced before IInd Additional Sessions Judge, Dadu who amalgamated both the cases and tried them as one. On the assessment of evidence available on record the learned Additional Sessions Judge acquitted all the accused persons vide judgment, dated 15‑3‑1989. He however, confiscated the licensed gun belonging to applicant Moulvi Sher Muhammad which was allegedly recovered from the possession of his son Habibullah with the following order passed under section 517, Cr.P.C. "Property, viz., Double barrel gun, three live cartridges and two live bullets are confiscated to the State and the same be sent to District Armoury for disposal according to law. 73 empty cartridges, 22 empty bullets and two hatchets be destroyed after the expiry of appeal period."

3. Applicant Moulvi Sher Muhammad who had a valid licence for the gun and cartridges then filed an application under section 517, Cr.P.C. before the IInd Additional Sessions Judge, Dadu, for the return of the above arm and ammunition which was dismissed vide order, dated 18‑8‑1991. It is in these circumstances that the applicant has filed this criminal revision under section 439, read with section 520, Cr.P.C.

4. I have heard Mr. Hussain Bux Solangi, learned counsel for applicant and Mr. S.Z.A. Qureshi, learned counsel for State.

5. The perusal of the judgment, dated 15‑3‑1989 passed by IInd Additional Sessions Judge, Dadu, by which accused Habibullah (son of applicant) and 4 others were acquitted makes it clear that accused Habibullah from whose possession this gun was allegedly recovered was not found guilty for the offence under section 13‑D of the Arms Ordinance, 1965, meaning; thereby that he was not found in possession of this gun and cartridges. One of the points for determination framed by learned Additional Sessions Judge was about this gun which was answered in negative. In such a situation the gun and cartridges should have been returned to the licence‑holder, viz., the applicant. I The cases of Imtiaz Hussain v. The State reported in P L D 1981 Lah. 81, Abdul Ghafoor v. The State reported in P L D 1982 Kar. 469, Ahmad v. The State reported in 1983 P Cr. L J 1976, Bachal v. The State reported in 1984 P Cr. L J 1571, Matwalli alias atalli v. The State reported in 1990 P Cr. L J 731 and Imdad Ali v. The State reported in 1990 P Cr. L J 1661, are clear on this point.

6. Section 520, Cr.P.C. which is attracted to this case provides as follows: ‑‑ "

520. Stay of order under section 517, 518 or

519. Any Court of appeal, confirmation, reference or revision may direct any order under section 517, section 518 or section 519, passed by a Court subordinate thereto, to be stayed pending consideration by the former Court, and may modify, alter or annul such order and make any further orders that may be just:" It will be seen that where the case in which an order under section 517, Cr.P.C. was passed is itself pending before a Court of appeal or revision, that Court can modify, annul or alter such an order under section 520, Cr.P.C. But where no such case is pending (like the one under consideration) an application lies under this section to the Court to which appeals, or revisions ordinarily lie from the Court which passed the order under section 517, Cr.P.C. Several rulings can be cited in support of this view commencing from the year 1936 down to the year 1975. The first of these cases is a decision of a Division Bench in Banur‑ud‑Din Biswas v. Gani Mia Sawdagar and another reported in AIR 1936 Cal. 21, followed by Mst. Fatima daughter of Rajo Mirjat v. Sain Baksh son of Rajo Mirjat, reported in AIR 1942 Sindh 1, Sardara v. Boota reported in P L .D 1950 Lah. 97, Ghulam Akbar v. The State and another reported in P L D 1958 Lah. 212, Ahmad Bakhsh v. The State and another reported in P L D 1966 Lah. 918 and Jalal Khan alias Jalley Khan v. The State and another reported in P L D 1975 Lah. 45.

7. Again no period of limitation is prescribed for an application for restoration of property under section 517, Cr.P.C. If any authority is needed the cases of Kanshi Ram v. The Crown, reported in AIR 1924 Lah.75, and Jalal Khan alias Jalley Khan v. The State and another reported in P L D 1975 Lah. 45, may be cited with advantage.

8. Mr. S.Z.A. Qureshi, learned counsel for the State has strenuously contended that the order by which the gun and cartridges were confiscated was passed as far back as 15‑3‑1989, and the applicant ought to have approached this Court within a reasonable period. The answer to this contention is furnished by Sardar Muhammad Iqbal, J. (as he then was) in the case of Ahmed Bakhsh v. The State and another reported in P L D 1966 Lah. 918 in the following words: ‑‑ "The proceeding under section 520, Cr.P.C. is not an appeal or in the nature of an appeal. This is a proceeding of a special nature. There is no period of limitation prescribed for making this application." 8‑A. This view was reiterated by Agha Ali Hyder, J. (as he then was) in the case of The State v. Darshan Lal and another reported in P L D 1972 Kar. 548, wherein it was made clear that no period of limitation is prescribed for an application under section 520, Cr.P.C.

9. Having regard to the above legal position, I would set aside the order, dated 15‑3‑1989 passed by lInd Additional Sessions Judge, Dadu under section 517, Cr.P.C., and allow the revision application. The District Magistrate, Dadu is directed to deliver the gun and cartridge to applicant Moulvi Sher Muhammad after being satisfied about the validity of licence issued to him, who will be allowed a reasonable time for getting the licence renewed, if the same has expired. N.H.Q./S‑813/K Revision petition accepted.