2021 M L D 1131
[Balochistan]
Before Muhammad Hashim Khan Kakar, J
BISMILLAH ---Appellant
Versus The STATE ---Respondent
Criminal Appeal No.34 of 2020, decided on 15th October, 2020.
(a) Criminal trial ---
----Acquittal---Whether it is on the basis of a declaration by a court on the conclusion of the
trial that someone is not guilty of the charge or at any stage under S.249- A or 265- K, Cr.P.C.
or on the basis of compromise under S.345, Cr.P.C. it was acquitt al.
Manzoor Hussain Jatoi v. State 1997 PCr.LJ 500 and Muhammad Islam v.
Government of N.W.F.P., 1998 SCMR 1993 rel.
(b) Criminal Procedure Code (V of 1898)---
----S.517---Order for disposal of property regarding which offence committed--- Accused was
booked in a criminal case registered under S.324, P.P.C., he was tried and after accepting an application under S.345(2), Cr.P.C., was acquitted, however the case property, pistol, was ordered to be confiscated in favour of State and the licence to be cancell ed---Validity ---No
distinction could be drawn between an acquittal on the basis of compromise in compoundable offences or an acquittal by way of benefit of doubt, consequences in each case would be the same ---In the context of the provisions of S.345(6), C r.P.C., the effect of an
acquittal recorded by a court on the basis of a successful and complete compounding of a compoundable offence shall include all the benefits and fruits of a lawful acquittal ---In case
of acquittal, the accused became entitled to al l the reliefs consequent upon to his acquittal
including the release of his property seized by the police during the investigation of the case -
--Since the accused was acquitted of the charge in view of the compromise effected between the parties, as such, accused was entitled to get the case property---Appeal was allowed by setting aside the impugned order and case property was ordered to be delivered to the accused after due verification of the licence by the issuing authority.
Masood Ahmed Dotani for Appellant.
Abdul Mateen, Deputy Prosecutor General for the State.
Date of hearing: 28th September, 2020.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ----Through this appeal under section
410, Cr.P.C. the appellant viz. Bismillah has challenged the legality and propriety of the
order dated 27th August, 2020 ("the impugned order"), passed by the learned Additional
Sessions judge, Ziarat ("the Trial Court") in Sessions Case No.02 of 2020, regarding the case
property which reads as under:
"Case property pistol bea ring No.EE -4972 AP7.65 licensed one is confiscated in
favour of state .while Deputy Commissioner is directed to cancel the arms license No.4659 ,Dated 31.12.2018 issued to the accused Bismillah Khan son of Noor Khan. Parcel Nos. 2, 3, 4 blood stained cloths of injured be destroyed accordingly after lapse
of appeal period.
2. Relevant facts for disposal of the instant appeal are that the appellant was booked in
Crime No.05/2020, under section 324, P.P.C., lodged with Levies Station. Zindra, District
Ziarat. He was tried by the learned trial Court in Session Case No.02/2020 and after
accepting an application under section 345 (2) Cr.P.C. he was acquitted of the charge by means of the impugned order, however, the case property i.e. pistol bearing No.EE -4972
AP7.65 was ordered to be confiscated in favour of the State, hence this appeal.
3. Mr. Masood Ahmed Dotani, learned counsel for the appellant submitted that the
learned trial Court has no power to cancel the appellant's pistol license as the powers of cancell ation of the license do not vest in him in the circumstances of the case by virtue of
section 12 of the West Pakistan Arms Ordinance, 1965. He further submitted that though the appellant was acquitted of the charge on the basis of compromise, yet section 345(2),
Cr.P.C., the effect of an acquittal recorded by a Court on the basis of a successful and complete compounding of a compoundable offence shall include all the benefits and fruits of a lawful acquittal, as such, the impugned order, being illegal is li able to be set aside up to the
extent of cancellation of license and confiscation of arms.
4. In order to resolve the controversy between the parties, it would be relevant to
reproduce herein below section 12 of West Pakistan Arms Ordinance, 1965, which provides
the procedure for cancellation and suspension of license, which reads as under:
"12. Cancellation and suspension of Licenses. (1) Any licence may be cancelled or
suspended;
(a) by the officer by whom the same was granted or by any authori ty to which he may
be subordinate, or any [District Co- ordination Officer] within the local limits of
whose jurisdiction the holder of such Licence may be, when, for reasons to be
recorded in writing and after giving the holder of the Licence an opportunit y of
showing cause against the proposed cancellation or suspension, such officer, [or
authority] deems it necessary for the security of the public peace to cancel or suspend
such Licence; or
(b) by any Judge or Magistrate before whom the holder of such Lic ence is convicted of
an offence against this Ordinance or against the rules and Government may, by a
notification in the official Gazette, cancel or suspend all or any Licences throughout
the Province or any part thereof.
(2) An appeal against an order of cancellation or suspension under clause (a) of
subsection (1) may be made by the person whose Licence has been cancelled or suspended to the immediate official superior to the authority making the order, within sixty days of the receipt by him a copy of t he order where appeal lies to Government,
and where appeal lies to any other authority, within thirty days of the receipt by him of a copy the order."
5. Mr. Masood Ahmed Dotani, learned counsel for the appellant submits that the learned
trial Court does not have power to cancel the license of the appellant, within the definition of
any of the above authorities, as such, after acquittal of the appellant, the impugned order is
not tenable in law and is liable to be set aside. Admittedly, the pistol in question is licensed one and after acquittal of the appellant the learned trial Court should not have confiscated the same in favour of the State and was also not authorized to cancel the license of the appellant. The learned trial Court should have returned the pistol to the appellant as the same was taken
into possession by the levies officials from his possession.
6. It seems that the learned trial Court has confiscated the pistol in question in favour of
the State and directed the concerned Deputy Commissione r for cancellation of its license on
account of the fact that the appellant was acquitted of the charge on the basis of compromise, effected between the parties out of the Court through notables of the area. It is by now settled that the acquittal is acqui ttal whether it is on the basis of a declaration by a Court on the
conclusion of the trial that, someone is not guilty of the charge or at any stage under section 249- A or 265- K, Cr.P.C. or on the basis of compromise under section 345 Cr.P.C. While
holding this view, I am fortified from the dictum laid down by the Hon'ble Supreme Court of
Pakistan in the case of Manzoor Hussain Jatoi v. State 1997 PCr.LJ 500 and Muhammad Islam v. Government of N.W.F.P., 1998 SCMR 1993;
"We are inclined to uphold the above view inasmuch as all acquittals even if these are
based on benefit of doubt are honourable for the reason that the prosecution has not succeeded to prove their cases against the accused on the strength of evidence of unimpeachable character. It may be note d that there are cases in which the judgments
are recorded on the basis of compromise between the parties and the accused are acquitted in consequence thereof. What shall be the nature of such acquittals? All acquittals are certainly honourable. There can be no acquittals, which may be said to be dishonourable. The law has not drawn any distinction between these types of acquittals.
7. In view of the dictum laid down by the hon'ble Supreme Court in the aforementioned
case, which was reiterated in the Suo Mo tu case No.3 of 2017, I am of the opinion that no
distinction can be drawn between an acquittal on the basis of compromise in compoundable offences or an acquittal by way of benefit of doubt. The consequences in each case would be the same. In the context of the provisions of section 345(6), Cr.P.C. the effect of an acquittal recorded by a Court on the basis of a successful and complete compounding of a compoundable offence shall include all the benefits and fruits of a lawful acquittal. In case of
acquitta l, the accused becomes entitled to all the reliefs consequent upon to his acquittal
including the release of his property seized by the police/levies during the investigation of
the case.
Since, the accused was acquitted of the charge in view of the compromise effected
between the parties, as such, he is entitled to get the case property. In such view of the matter, the instant appeal is allowed and the impugned order, regarding confiscation of pistol bearing No.EE -4972 AP7.65 and cancellation of arms lice nse No.4659 dated 31.12.2018,
being not tenable is set aside and the case property i.e. pistol bearing No.EE -4972 AP7.65 is
ordered to be delivered to the appellant after due verification of the license by the issuing
authority.
JK/11/Bal.
Order accordingly.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,
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