2014 P Cr. L J 410
[Balochistan]
Before Muhammad Noor Meskanzai and Muhammad Ijaz Swati, JJ
GHULAM DASTAGEER ---Appellant
Versus
The STATE ---Respondent
Criminal Appeals Nos.264, 265 and 266 of 2012, decided on 31st October, 2013.
Criminal Procedure Code (V of 1898) ---
----Ss. 516 -A, 367 & 561 -A---Anti-Terrorism Act (XXVII of 1997), Ss.7 & 25 ---Confiscated
vehicle, custody of ---Jurisdiction of Trial Court ---Direction of Supreme Court ---Trial Court
confiscated vehicle in question and declin ed its custody on the plea that the same would be
review of its own judgment ---Validity ---Confiscation order did not fall within the definition of
"judgment" as contemplated under S.367, Cr.P.C. ---Supreme Court permitted appellant to file
application befor e Trial Court and also directed Trial Court to entertain the application and
decide the same ---Trial Court was bound to decide entitlement of appellant regarding vehicle in
question on its own merits ---Trial Court erred in law by dismissing application on such
erroneous unwarranted and unjustified reason ---High Court set aside order passed by Trial Court
and remanded the application for decision afresh ---Appeal was allowed accordingly.
Adnan Ejaz and Abdul Rauf for Appellant (in Criminal Appeal No.264 of 2012).
Malik Sultan Mehmood, Special Prosecutor for the State (in Criminal Appeal No.264 of
2012).
Kamran Murtaza for Appellant (in Criminal Appeal Nos.265 and 266 of 2012).
Date of hearing: 10th September, 2013.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, J. ---By this common judgment we propose to
dispose of Criminal Appeals Nos. 264, 265 and 266 of 2012 as these appeals are directed against
the same order dated 22nd October, 2012 passed by Special Judge, Anti -Terrorism Court -I,
Quetta whereby th e application under section 516 -A, Cr.P.C. for grant of custody of vehicle
bearing No. WAF -437 Toyota Hilux, Model 1989 filed by the appellant has been rejected.
2. The brief facts relevant for the disposal of instant appeals are that the aforesaid vehic le
was subject -matter of three criminal cases registered on the same day vide F.I.Rs. Nos.152/2008,
153/2008 and 154/2008 under sections 324 Q&D, 353, 186, P.P.C. read with sections 4, 5 of
Explosives Act and read with 7 of A.T.A., 1997 registered with Pol ice Station Shalkot, Quetta.
The nominated persons were tried and the learned trial Court vide its judgment dated 21st
February, 2009 while acquitting all the three accused passed following order qua the case
property: --
"Case property mentioned in Colu mn No.5, of 'challan' is confiscated in favour of the
State, which be disposed of accordingly after expiry of appeal period."
3. Thereafter, the appellant filed a Constitutional Petition No.613 of 2008 before this Court,
however; the same was disposed of vide order dated 25th March, 2009 with permission to the
appellant to file application before the trial Court. Subsequent to the order passed by this Court it
came to the notice of appellant that the vehicle has already been confiscated. The appellant aga in
approached to this Court by way of filing Constitutional Petition No.198 of 2009 challenging the
judgment to the extent of confiscation of vehicle in question. However, as the Constitutional
Petition was not maintainable and legally the appellant had to file an appeal under section 25 of
Anti-Terrorism Act, 1997, therefore, at the request of appellant the C.P. was converted into
appeal. Since the appellant had to file three separate appeals, thus again permission was accorded
to the appellants to file se parate appeals, however, in the meanwhile vehicle was released to the
appellant vide order dated 4th January, 2009. Nevertheless, the appeals Nos.101 of 2009, 106 of
2010 and 107 of 2010 were dismissed by this Court vide judgment dated 21st July, 2010. The
appellant challenged the latter judgment before the Hon'ble Supreme Court of Pakistan by way
of filing Criminal Petitions Nos.51 -Q, 52 -Q and 53 -Q of 2010 and the Hon'ble apex Court vide
judgment dated 18th September, 2012 allowed the petitions filed by th e appellant and set aside
the judgment passed by this Court. The appellant in the light of judgment by the Hon'ble Apex
Court filed applications under sections 516 -A and 517, Cr.P.C. for deciding the question of
disposal of vehicle but the learned trial Co urt vide order dated 22nd October, 2012 dismissed the
application, hence instant appeals.
4. The learned counsel for the appellant stated that the trial Court committed material
irregularity in dismissing the application on the sole ground that the case property has already
been confiscated in favour of State and the Court has got no jurisdiction to review its judgment.
It was further maintained that the trial Court erred in law by recording such findings because the
order about confiscation of case prope rty does not fall within the definition of judgment as
contemplated by section 367, Cr.P.C., therefore, the provision of section 369, Cr.P.C. are not
attracted it the case in hand. It was urged with vehemence that the Hon'ble apex Court has
allowed the app ellant to file application seeking custody of the vehicle and specific directions
were issued to the trial court to entertain the application of the appellant.
On the other hand learned Special Prosecutor opposed the submission and stated that in
fact t he trial court finally had decided the case and the order regarding confiscation of the case
property forms part and parcel of the judgment, therefore, the trial Court rightly observed that the
judgment passed by it cannot be reviewed by it on account of b ar contained in section 369
Cr.P.C.
5. We have considered the arguments advanced by the learned counsel for the parties and
perused record of the case. It is admitted feature of the case that the appellant lodged two
Roznamcha' Reports No.27 and 62 dated 16th September, 2008 complaining snatching of his
vehicle. The vehicle in question was intercepted and three persons were arrested along with the
vehicle. Admittedly, a huge quantity of explosive substance was alleged to have been recovered
from the vehic le and also there was recovery of arms and ammunition from the possession of the
persons allegedly arrested from the vehicle. It is important to note that all the said accused
persons have been acquitted of the charge by the trial Court. It is painful to n ote that the State did
not call in question the legality and propriety of said judgments whereby the said accused were
acquitted of the charge and the acquittal judgments have attained finality. It is pertinent to
mention that the appellant has neither bee n nominated as accused in the above said case nor
arrested in any of the allegations regarding the recovery of alleged explosive substance from the
vehicle. It is also important to note that the appellant from the very beginning has been trying
from pillar to post to get the custody of the vehicle and for this purpose this is the third round of
litigation before this Court. Admittedly, after confiscation of the vehicle the appellant filed
Criminal A.T.A. Appeals Nos.101 of 2009, 106 of 2010 and 107 of 2010 before this Court. The
said appeals were dismissed vide judgment dated 21st July, 2010. The latter judgment was
challenged by the appellant before the Hon'ble Supreme Court by means of Criminal Petition
No.53 -Q of 2010. The Hon'ble Apex Court vide order da ted 18th September, 2012 allowed the
petition. Relevant portion of the order is reproduced herein below: --
"Thereafter he moved the learned High Court and the petitions filed were converted into
appeals bearing Nos. 101/2009, 106/2010 and 107/2010 as th e learned trial Court had passed the
judgments of acquittal in three separate cases. Those appeals stand dismissed vide impugned
judgment dated 21 -7-2010. In dismissing the appeals, learned High Court did not grant the
prayer inter alia on the ground that the vehicle in question was used for transportation of huge
quantity of explosive substance; that the conduct of the appellant itself shows that the vehicle
was used for transportation of explosive substance by the co -accused with the connivance,
consent a nd involvement of the appellant. The afore -referred observations, we may observe with
respect, are neither borne out from the evidence nor learned High Court considered the fact that
the vehicle in question had been snatched which incident was subject -matter of two reports to
which reference has been made above. At the query of the Court, learned Prosecutor -General,
Balochistan does not deny that in terms of the record available there is nothing to connect the
appellant with the cases which culminated in ac quittal of the accused. However; he suggests that
it would be in the fitness of things if learned trial Court is directed to decide the question of
custody of the vehicle in question after hearing the petitioner and the State. The stand taken by
learned La w Officer is fair and just in the facts and circumstances of the instant case.
In view of the above, these petitions are converted into appeals and allowed, the
impugned judgments of learned High Court are set aside and learned trial Court is directed t o
entertain the petitioner's application and decide the same within two weeks of its presentation. In
the meanwhile, the custody of vehicle bearing No. WAF -437 shall remain with the petitioner in
terms of the order dated 9 -9-2010 regarding surety passed by this Court".
6. Pursuant to the judgment passed by the Hon'ble Apex Court, the appellant filed
Miscellaneous Application No.72 of 2012 before the trial Court. In our considered opinion, the
trial Court committed material irregularity by holding that the Court is functus officio on account
of bar contained under section 369, Cr.P.C. No doubt; the confiscation order is part and parcel of
the main judgment but the appellant did not seek review of the judgment qua acquittal or
conviction. Secondly, to our pe rception, the confiscation order does not fall within the definition
of judgment as contemplated under section 367, Cr.P.C. and thirdly the Hon'ble Apex Court has
permitted the appellant to file application before the trial Court and simultaneously directe d the
trial Court to entertain the application and decide the same within two weeks after its
presentation meaning thereby the trial Court was bound to have decided the entitlement of the
appellant regarding the vehicle in question on its own merits. The t rial Court erred in law by
dismissing the application on such erroneous, unwarranted and unjustified reason.
For the foregoing reasons, we are inclined to accept the appeals, set aside the order
impugned and direct the trial Court to decide the applicat ion filed by the appellant afresh within
10 days after the communication of this judgment.
Appeals stand disposed of.
MH/113/Bal. Case remanded.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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