This revision petition under section 439, Cr. P. C. Which relates to the disposal of a silver necklace under section 523, Cr. P. C. Has arisen in the following circumstances:
2. On 14-6-1969 Police went to the house of petitioner Jaffar and secured the silver necklace which is the subject-matter of this petition on search from his house. As they suspected it to be stolen property it was produced before the Head Munshi and Third Class Magistrate, Naushahuro Feroze, who issued the usual proclamations inviting claims in respect thereof. The petitioner filed his application of claim and produced to witnesses who were examined on 30-6-1969. On the basis of this evidence the Court ordered that the property should be given to the petitioner on furnishing one surety in the sum of Rs. 500.00. The next day, however, one Riaysat Ali respondent No. 2 in this petition also filed his claim in respect of the same necklace. He was examined and he produced to other witnesses, namely, Khurshid his brother and Suleman servant of his father in support of his claim. The learned Magistrate thereafter passed another order dated 24-3-70 on which the necklace was given to the respondent
3. Mr. Memon, the learned counsel for the petitioner has contended that the learned Magistrate had ho jurisdiction to revise his earlier order. Mr. Sikandar Ali the learned counsel for respondent No. 2, however, contends that this order did not amount to review of the earlier order. I need not go into this question as on the merits of the case I have no doubt whatsoever that the learned Magistrate's order is erroneous and must be
4. The learned Magistrate has discarded the evidence of Jaffar and his witnesses simply by saying that he is not prepared to believe this evidence. The learned Magistrate stated that he did not believe Qadir Bux as he was a person connected with Jaffar. The evidence of Zilladar was discarded on the ground that he belonged to Naushahro Feroze and therefore, he could not identify the property of an outsider. The learned Magistrate found the evidence of Riyasat Ali and his witnesses reliable but gave no reasons in support of his conclusions. He merely stated that there were discrepancies in their evidence but these were immaterial. Although in the First Information Report of the theft case also there was no mention of this necklace by Riyasat Ali, the learned Magistrate disposed of this contention merely by saying that this argument carried no weight.
5. The admitted position in this case is that the silver necklace was secured from the possession of applicant Jaffar. Apart from a vague suspicion that it was stolen property no evidence except that of Riyasat and his to witnesses was led in support of this suspicion. Normally the presumption is that an article belongs to the person from whom it is recovered. In this case the learned Magistrate himself had given this necklace to the applicant who would naturally have taken sometime for furnishing surety of Rs. 500.00 which he was ordered to do. It is surprising that the very next day an application from Riyasat was entertained and the learned Magistrate changed his view and gave the necklace to respondent No. 2. Riyasat Ali has admitted that he had not mentioned this necklace in the F. I. R. Lodged on 11-6-69. His case, however, was that this necklace was stolen 8-9 years back and that it belonged to to women and was kept in a tin. Admit--tedly, no First Information Report was lodged about. This theft. The other witness Khurshid .Is brother of Riyasat Ali and his evidence is to the same effect. The only other witness, namely, Suleman, was also a servant of Sharif; father of Riyasat Ali. This position is conceded by the learned counsel appearing for Riyasat Ali, as well as Mr. Muhammad Ali, the learned counsel for the State.. I, therefore, fail to understand the basis on which the confidence of the learned Magistrate regarding this evidence being reliable is based. To me it appears that the evidence of Jaffar and his to witnesses was, to say the least, more reliable than that of Riyasat Ali and his to interested witnesses. The learned Magistrate has not considered any of the circumstances mentioned above.
6. Mr. Muhammad Ali, the learned counsel for the State also supports this application 'and concedes that the applicant Jaffar should have been given this necklace as ordered earlier by the Magistrate.
7. The only other contention of Mr. Sikandar Ali is that P. W. Qadir Bux is a previous convict. There is admittedly nothing on record to show that this was so. Mr. Sikandar Ali says that these were his instructions from his client. This cannot obviously be considered as sufficient to say that Qadir Bux is a previous convict.
8. This revision application is accordingly allowed.