' By means of instant criminal revision petition filed under section 439, Cr.P.C. Read with section 561- A, Cr.P.C, the petitioner has called in question the vires of order dated 6-1-2011, passed by learned Additional Sessions Judge, Mianwali whereby the learned court seized with the matter had declined to hand over rifle .44-bore, belonging to the petitioner, to him on superdari.
2. Facts of the case, in brief, necessary for determination of the lis in hand are that the petitioner was booked in case F.I.R. No, 188 of 2007, dated 21-12-2007, offence under sections 302, 324, 337- A(i), 337-A(ii), 148, 149, P.P.C., registered at Police Station Musa Khel, District Mianwali. After conclusion of trial, the learned trial court in terms of judgment dated 23-1-2010, convicted the petitioner under section 337-A(i), P.P.C., and directed to pay of Rs,10,000 and under section 337- A(ii), P.P.C., he was punished 5% Arsh. Khalil Ahmed, co-accused, was convicted under section 302(b), P.P.C., and sentenced to death as Ta'zir. The petitioner and his co-convict have preferred .
Appeals against the finding of the learned trial court before this Court, which are pending adjudication. Sentence of the petitioner has already been suspended by this Court. The petitioner thereafter filed an application before the learned trial court seeking handing over the rifle .44-bore on superdari, which was dismissed in terms of order dated 6-1-2011. The order of the learned Additional Sessions Judge, Mianwali, has been assailed by the petitioner by means of instant petition.
3. Learned counsel for the petitioner argues that admittedly the rifle .44-bore belongs to the petitioner for which he has also valid license and there is no rival claimant, as such the petitioner fulfils the qualification as contemplated under section 517, cr.P.C. It is also argued that the learned Additional Sessions Judge, Mianwali, was not justified in rejecting the application of the petitioner seeking superdari of the rifle on the ground that it has become functus officio. Learned counsel vehemently contends that the learned Additional Sessions Judge failed to take notice of the fact that the petitioner has enmity in his native town. In this backdrop. Learned counsel for the petitioner prays for setting aside of the order of the learned Additional Sessions Judge and handing over the rifle .44-bore to the petitioner, on superdari. In support of his contentions, learned counsel for the petitioner has placed reliance on the following case-law:-- ' Muhammad Rafique and another v. The Stag? 1986 MLD 2628 ' Manzoor Hussain, Tatoi v. The State 1997 PCr.LJ 500 ' Mst. Rashida Begum and another v. Muhammad Saeed and 4 others 1978 PCr.LJ 160
4. Learned counsel for the-petitioner has been afforded preliminary hearing. We have also gone through the record available on file and the order dated 6-1-2011, impugned herein.
5. First of all we may observe here that the case-law cited by learned counsel for the petitioner is quite distinguishable from the peculiar facts of the instant case. In the case of Muhammad Rafique and another v. The State (1986 MLD 2628), the learned trial court had passed rio order qua disposal of case property at the time of passing the final judgment. Similarly in the case of Manzoor Hussain Jatoi v. The State (1997 PCr.LJ 500), the august Supreme Court of Pakistan had acquitted the accused and thereby the accused had sought case property whereas in the instant case the appeal of the petitioner and his co-accused is still pending. In the case-law Mst. Rashida Begum and another v. Muhammad Saeed and 4 others (1978 PCr.LJ 160), the learned trial court had directed depositing the case property in Malkhana leaving the parties to approach the Civil Court.
6. Admittedly the judgment dated 23-1-2010; whereby the petitioner and his co-accused were convicted by the learned trial court, has been appealed against before this Court, and the matter is pending adjudication. The impugned order dated 6-1-2011 passed by learned Additional Sessions Judge, Mianwali; whereby the petitioner was refused the superdari of the rifle, reflects' that Asmat Ullah, co-accused in the case, is still fugitive from law and on his arrest, he shall be tried separately and at the time of his trial, case property shall have to be produced.
7 The learned counsel for the petitioner has given impression that under section 517, Cr.P.C.
Handing over the case property to its original, at any time, is mandatory. However, we are constraint to observe here that the situation is quite contrary to what has been urged by learned counsel for the petitioner. Relevant portion of section 517, Cr.P.C. Is reproduced herein below:- "517 Order for disposal of property regarding which offence committed.
' When an order is made under this section such order shall not, except , where the property is livestock or subject to speedy and natural decay, and save as provided by subsection (4), be carried out for one month, or, when an appeal is presented, until such appeal has been disposed of.
' Needless to mention that the petitioner cannot claim custody of rifle/case property as a matter of right and in the afore-stated circumstances, we are ought to observe that the order of the learned Additional Sessions Judge is well reasoned and we are not inclined to interfere in the same.
8. For the foregoing reasons, having found no force in the instant appeal, the same is hereby dismissed in limine.
Revision . revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.