2018 P Cr. L J 954
[Balochistan]
Before Muhammad Hashim Khan Kakar, J
MOHIBULLAH and another ---Petitioners
Versus
The STATE---Respondent
Criminal Miscellaneous Application No. 506 of 2017 in Criminal Revision Petition No. 126 of
2016, decided on 5th December, 2017.
(a) Criminal Procedure Code (V of 1898) ---
----S. 517---Order for disposal of property regarding which offence committed---Claim for ownership of vehicle allegedly used in offence ---Applicant, claimed himself to be owner of
confiscated moto rcycle, and prayed that motorcycle in question be handed over to him ---
Validity ---Applicant along with co -accused was booked in a criminal case registered under Ss.
337-H(2), 353 & 34, P.P.C.---Motorcycle of the applicant was taken into custody by the Poli ce---
Applicant along with co -accused were convicted by the Judicial Magistrate and the motorcycle
of applicant was ordered to be confiscated in favour of the State ---Conviction and sentence of the
applicant was upheld by the appellate court ---Applicant alo ng with co- accused were acquitted by
the High Court, without passing a specific order in respect of the motorcycle ---Effect ---Record
showed that applicant was acquitted of the charge while extending benefit of doubt ---
Admittedly, while passing the acquitta l judgment, no specific order with regard to the seized
property was passed, but the acceptance of revision petition meant that the same was allowed in toto---After setting aside the impugned judgments, the acquittal of the applicant was
unconditional ---Af ter winning acquittal, the applicant could not be deprived of logical
consequences of his acquittal order ---Admittedly, neither the motorcycle in question was used in
the commission of the alleged offence nor the same was stolen property --- Motorcycle was taken
into custody by the police from the possession of the applicant ---Acquittal of accused of the
charge, entitled him to all reliefs including the release of his properties seized at the time ---
Application was allowed in circumstances.
(b) Criminal Pr ocedure Code (V of 1898) ---
----S. 522- A--- Power to restore possession of movable property ---Scope ---If property was not
proved to be the subject -matter of an offence, same was to be restored to the person from whom
it had been taken.
Jalal Khan v. Stat e PLD 1975 Lah. 45 rel.
(c) Criminal Procedure Code (V of 1898) ---
----Ss. 517 & 520---Application for restoration of property under S. 517, Cr.P.C.--- Limitation ---
Proceedings under Ss. 517 & 520, Cr.P.C. being not appeal or revision but that of special na ture,
no period of limitation was prescribed by law for moving such application.
(d) Criminal trial ---
----Benefit of doubt ---Acquittal---Scope ---Prosecution was duty bound to establish its case
beyond all reasonable doubts ---If prosecution failed to do s o, the accused would be entitled to
acquittal ---Such acquittal would be honourable, even if it was the result of benefit of doubt.
Muhammad Aslam v. Government of N. -W.F.P. 1998 SCMR 1993 rel.
Attaullah Langov for Petitioners.
Yahya Khan, Deputy Prosecutor -General for the State.
Date of hearing: 30th November, 2017.
ORDER
MUHAMMAD HASHIM KHAN KAKAR, J. ---The instant application, filed under
section 517, Cr.P.C. carries the following prayer clause:
"It is, therefore, respectfully prayed that the said m otorcycle Unique, bearing registration
No. QAX- 2626, Chassis No.DSC -910856, Engine No. DSE -597143 may kindly he
released in favour of applicant in the interest of justice, equity and fair play."
2. So far as the basic facts are concerned, there is no mater ial dispute and to the extent
necessary, they are noticed herein below. Appellant Muhammad "Omar son of Faqeer
Muhammad was booked in Crime No. 19 of 2015, dated September 23, 2015 under sections 337-H(2), 353 read with section 34, P.P.C. lodged with Levie s Thana Kadh Koocha, District
Mastung, on the report of one Jan Muhammad, levies constable. At the time of alleged encounter between the applicant and levies personnel, the motorcycle of applicant bearing registration No. QAX.2626 was also taken into custody by the levies authorities.
3. The applicant along with co -accused namely Mohibullah were convicted by the learned
Judicial Magistrate Mastung, vide order dated July 29, 2016 and the following order in respect of case properties was passed:
"The case property motorcycle Unique engine No. DSE - 597143, Chassis No. DSC -
910856, TT pistol No. Nil, magazine and two live rounds be confiscated in favour of the state, three empties of TT pistol and seven empties of Kalashnikov be destroyed after lapse of appeal period."
4. The conviction and sentences of the applicant was upheld by the learned Sessions Judge,
Mastung by means of order dated November 24, 2016. The applicant being aggrieved, preferred Criminal Revision No.126 of 2017, which was allowed b y this Court vide judgment dated
September 25, 2017 and acquitted the applicant and his companion namely Mohibullah, without
passing a specific order in respect of the motorcycle in question, hence the instant application.
5. I have heard Mr. Attah Ullah, Langove, learned counsel for the applicant and Mr. Yahya
Baloch, learned Deputy Prosecutor General for the State. Learned counsel for the applicant
contended that after winning a clean acquittal from this Court, the motorcycle in question was required to be handed over to the applicant. He further submitted that neither the motorcycle in question is stolen one nor there is any claimant of the same, except the applicant, from whom possession it was taken into custody. On the contrary, learned DPG contended t hat the order by
which the motorcycle in question was confiscated, was passed as far back as 29- 7 2016 and the
applicant ought to have approached the competent Court within reasonable period. He further submitted that since, no order in respect of the moto rcycle in question was passed by this Court
in Criminal Revision Petition No.126 of 2017, as such, the applicant is not entitled for custody of the same. He also contended that the applicant was acquitted on the basis of benefit of doubt, which does not am ount a clean acquittal. While concluding his arguments he further submitted
that once the judgment is given, it becomes final for the Court which has delivered and there is no provision of law which empowers the said Court to alter or change the same by wa y of
review, recall, reconsideration or re -hearing. In other words, he submits that this Court being
functus officio cannot grant the relief claimed for.
6. In order to resolve the controversy, it would be appropriate to reproduce herein below the
operatin g part of the acquittal judgment, passed by this court, which read as under:
"In the light of above discussion, I accept this petition, set aside the impugned judgments dated 29.7.2016 and 24.11.2016, passed by the Judicial Magistrate and the Sessions
Judg e Mastung, respectively, and acquit the petitioners Mohibullah son of Abdul Ghani
and Muhammad Umar son of Faqir Muhammad of the charge by extending them benefit of doubt. They are on bail, their bail bond stands discharged."
7. It is crystal clear from plain reading of the above quoted para of the judgment that the
applicant was acquitted of the charge while extending benefit of doubt. Admittedly, this Court while passing the acquittal judgment has not specifically passed an order with regard to the seized properties, but the acceptance of Revision Petition amounts that the same was allowed in
toto and after setting aside the impugned judgments, the acquittal of the applicant was unconditional. In such circumstances, after winning acquittal, the applicant c ould not be deprived
of logical consequences of his acquittal order. Admittedly, neither the motorcycle in question was used in the commission of the alleged offence nor the same is stolen one. It was taken into custody by the levies authorities from the p ossession of applicant Muhammad Umar. After
setting aside the conviction and sentences, there is no reason to deprive him of the logical consequences of his acquittal. Obviously, the motorcycle in question was seized in consequence of the charges levelled against the applicant, and then his acquittal should necessarily result in the release of those properties, which were taken into custody from his possession by the authorities at the time of his arrest. Acquittal of accused of the charge, entitles him to all reliefs including the release of his properties seized at the time of arrest.
8. Admittedly, this Court while passing the final judgment has not passed any order in the
respect of the case properties. According to my humble opinion section 520, Cr.P.C. gives
supervisory powers to the Courts of appeal or revision to correct the errors of Court below in
respect of the orders passed rider section 517, Cr.P.C., independently of the fact whether or not an appeal or revision in the substantive case is pending . An appeal or revision as such is not
contemplated by section 520, Cr.P.C. but the section does give a right to an aggrieved person to approach a Court of appeal or revision by way of an application for redressal of his grievances.
Similarly, passing an o rder in respect of case property, after final judgment at a subsequent stage,
does not amount altering, changing or reviewing the final order.
9. So far as the contention of the learned APG, regarding the maintainability of instant
application as well as q uestion of limitation is concerned, I am of the opinion that it is by now
settled 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
while exercising powers under section 520, Cr.P.C. But where no such case is pending (like one under consideration) an application lies to the Court, to which appeals or revisions ordinarily lies from the Court which passed the order under section 517, Cr.P.C. The power under sections 517 and 520, Cr.P.C. by an appellate or a revisional Court does not depend on the availability or pendency or an appeal or revision in the original case but it is an independent and substantive jurisdiction by which it is open to the Court of the above description not only to modify, cancel
or alter the order but make such other orders for the proper disposal of the property as the facts
of the case may require. It is by now settled that if properties not proved to be the subject matter
of an offence it should be restored to the person from whom it had been taken. While holding this view. I am fortified from the judgment reported as PLD 1975 Lahore 45 "(Jalal Khan v. State).
10. Similarly, the contention of the learned counsel regarding the question of limitation is
also devoid of force for the reason that the proceedings under sections 517 and 520, Cr.P.C. are not appeals or revisions and the same are also not in the nature of appeals and revisions. These are proceedin gs of a special nature and no period of limitation is prescribed by law for moving
such applications.
11. The learned DPG also contended that since the applicant was acquitted while extending
benefit of doubt but not honorably, as such, is not entitled for the relief prayed for. I am afraid
that "Acquittal" constitutes exoneration from a criminal charge. Once a person charged with certain offences by a judicial order is acquitted, the verdict means a formal certification of the innocence of such person. It is well entrenched principle of criminal jurisprudence that for a judgment of conviction it is the duty of the prosecution to establish its case beyond all reasonable doubt, if it fails to do so, the accused will be entitled to acquittal and such acquittal will be
honourable, even if it is the result of benefit of doubt. The expression 'benefit of doubt' is only suggestive of the fact that the prosecution has failed to exonerate itself of the duty of proving its case beyond all reasonable doubt. While holdi ng so, I am benefited from the case of
"Muhammad Aslam v. Govt. of N.W.F.P" (1998 SCMR 1993).
12. For the aforesaid discussion, the application is hereby allowed and the motorcycle
bearing registration No.QAX -2626 should be handed over to the applicant.
JK/185/Bal. Appeal allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.