This is an application made under section 520 read with sections 439 and 561-A, Cr. P. C. Against the order of the learned 1st Additional Sessions Judge, Jacobabad, whereby while acquitting the accused Abdul Rehman and four others charged for offences under section 147/302/307 read with sections 149, P. P. C. And 403, P. P. C. Ordered the confiscation of the gun DBBL 12 bore hearing No. P- G/6945 allegedly recovered from the accused Abdul Rehman as an unlicenced gun as well as the licence No 116 dated 20th May, 1976 in the name of the applicant Haji alias Sachal and further directed that the same be sent to District Magistrate Jacobabad for disposal according to law.
2. The above order has been challenged by the present applicant who claims to be the owner of the said gun and its licence holder, Mr. Dawood Baloch the learned counsel for the applicant submitted that in the order passed on 30th April, 1980, the learned Ist Additional District Judge, Jacobabad as to the recoveries made the following observations : - "So far circumstantial evidence with regard to the recovery of two empties from the wardat and guns from accused Abdul Rahman and Daith, is concerned we have got the evidence of mashir Muhammad Hashim and Faiz Muhammad, but both of them also did not support the prosecution in this Court: When examined they stated that their thumb impressions on the mashirnamas of wardat as well on the mashirnamas of production of guns from the accused were obtained by the Police on a blank paper when they were passing by the side of Police Station Dodaput.
In view of such situation the circumstantial evidence has also failed to connect the accused with the commission of this crime".
3. The submission of the learned counsel for the applicant is that after having come to the conclusion in the judicial order announced by the learned trial Court disbelieving the recovery of the gun from accused Abdul A Rehman and failure of the circumstantial evidence to connect the said accused with the- commission of the alleged crime there was no justification for passing the further order for confiscation of the gun and the licence of the applicant.
The learned counsel invited my attention to the order passed in Criminal Revision No. 22 of 1981 (Qamaruddin v. The Stale) in which similar question arose and the learned Single Judge of this Court (Mr. Justice Namiuddin) placing reliance upon the judgment reported as Imtiaz Hussain v.
State (PLD 1981 Lah, 481) set aside the order of confiscation of the gun and the licence and ordered the return of the gun to the applicant if he still held a valid licence for the same. It would be advantageous to reproduce herein below the observations of the learned Lahore High Court on which the reliance was placed in above-mentioned Criminal Revision No. 22 of 1981 "The order of the learned Additional Sessions Judge clearly shows that the prosecution had not been able to prove its allegations including the one that the petitioner had fired the rifle in question. As a result the petitioner and his co-accused were acquitted. After the acquittal of the petitioner, there was nothing to warrant the order for confiscation of the rifle of the petitioner.
Needless to say that it was an order of penal nature in as much as it deprived the petitioner of a valuable weapon. It was not an unclaimed article. The petitioner was its claimant, and there was no rival claimant. It is the prosecu--tion's own case that the rifle had been recovered from the petitioner, The fact that the petitioner is the owner of the rifle is also apparent from the fact that he is holding licence for keeping the same. The learned Additional Sessions Judge has given no reasons in support of the impugned order. It is, therefore, not sustainable."
4. The learned counsel for the State Mr. Khadim Ali Shoro in vie of the case law cited does not support the order of the learned trial Court. I have gone through the record of this case and I am of the opinion that this Revision Application must succeed. Accordingly the impugned order of confiscation is set aside and the above mentioned gun and the licence be returned to the applicant if he holds a valid licence for the same.