ADNAN-UL-KARIM MEMON, J.---This Application seeks to challenge the Order dated 06.11.2018 passed by the learned Sessions Judge Tharparkar Mithi, in Criminal Revision Application No.06/2018, whereby he has maintained the judgment dated 12.09.2018 passed by the learned Judicial Magistrate-1 Mithi, in Criminal Case No.24/2018 (Re- The State v . Ravidan and others).
2. Basically the Applicant's grievance is for release of case property viz. Roheero Trees, which were recovered on 21.5.2018 by the police.
3. Brief facts of the case, in nutshell are that on 21.05.2018, Complainant Ali Muhammad Ahmedani (ASI) of Police Station 'Mithi was on patrol duty along with his subordinate staff. When they reached at Marvi Petrol Pump, Mithi, he received spy information that three unknown persons have committed theft while cutting banned Roheera Trees from the Government land in the jungle and transported through GMC Chakra bearing registration No. P-001 1, which was driven by accused Ravidan. He immediately reached at the spot, on inquiry from driver , he disclosed his name as Ravidan by caste Meghwar resident of Mithi town. He further disclosed that three unknown persons, after cutting the Roheero wood from State land, have loaded in his truck (GMC vehicle). Police apprehended them and seized the truck along with property i.e. Roheero wood, under the mashirnama. Accused and property were brought at Police Station and a case under section 379, P.P.C. was registered against them. Police, after investigation, submitted Charge Sheet in the case. Learned Trial Court framed charge against the applicant and others, tried them and acquitted vide judgment dated 12.9.2018. Applicant being aggrieved by the portion of the aforesaid judgment with regard to case property filed Criminal Revision Application No.6 of 2018 before the learned Sessions Judge Mithi at Tharparkar , which was dismissed vide judgment dated 6.11.2018. The applicant being aggrieved and dissatisfied with the impugned judgment has filed the instant Criminal Miscellaneous Application on 16.11.2018.
4. Mr. Bharat Kumar Suthar , learned counsel for the applicant, has argued that the impugned orders passed by the learned courts below suffer from legal infirmity , inasmuch as they failed to consider that the case property/Roheero Trees belonged to the applicant; that the learned courts below miserably failed to consider the last possession of the case property; that the learned trial court while acquitting the accused had returned all the case property except "Roohero Trees" without giving the reasons for destruction of the same; that the word "property" used for commission of an offence under Section 517, Cr .P. C Simply only instrument like guns, swords etc. with which offence was committed, "Roohero wood" which was allegedly robbed, not covered within property used for commission of offence, therefore same is liable to be restored to the applicant being its owner; that the impugned judgment of trial court itself shows that it is based on surmises and conjunctures and not in accordance with the material available on record; that there is no other claimant of Roohero Trees except the applicant; that the case property being a fragile item there is apprehension of its misuse and damage as it is lying at Police Station in open sky; that the impugned judgments are not sustainable in law; that the reason for dismissal of the application is neither legal nor convincing one rather in violation of law; that the applicant approached both forums in connection with the restoration of case property/Roheero wood/tree but could not get any fruitful result. He lastly prayed for release of the case property to him.
5. Mr. Shahid Ahmed Shaikh, learned Deputy Prosecutor General, has supported the impugned judgments to the extent of case property and submits that impugned orders do not suf fer from inherent flaws.
6. I have heard learned counsel for the applicant and learned DPG for the State as well as perused the material available on record.
7. From perusal of case file it appears that the applicant has premised his case that he is owner of the case property , but record reflects contrary position as he in his 342, Cr.P.C. statement has denied the ownership of the aforesaid case property and disclosed another story which is quite strange. An 1 excerpt of the same is reproduced as under: Q. No:1. You have heard the prosecution evidence, it has come in the evidence that on 21.05.2018 at 2100 hours, you along with accused Davi Dan, Muhammad Ashraf and Muhammad Shabir committed theft while cutting bann Roheero trees from the government land in jungle and transported through on GMC Chakra bearing registration No: P-001 1, which was driven by accused Ravi Dana What you have to say?
Ans. No. Q.No.2. The case property viz. Roheero trees present outside the court are shown to you, which you loaded on the GMC chakra bearing registration No.P-001 1 after committing theft while cutting from government land. Do you claim it?
Ans. Case property was brought by someone at my Aara machine and on refusal of bribe Damon Mal ASI lodged false FIR against me and my son Ashraf.
8. I have noted that Roheero is a banned tree, prima-facie the cutting and subsequent its transport is not justified under the law, more particularly in desert area, for the simple reason that the soil of Tharpakar District (Thar Desert) is very fertile and totally dependent upon rains; therefore, safe and sweet drinking water is the scare throughout the Thar. Peoples mostly are depending upon rained agriculture and livestock. Due to continuous droughts, severe winds are degrading the soil, which increases the desertification in the area and affecting the livelihood sources of indigenous peoples very badly . Numerous species of herbs can be found in rainy season and Desert Shrubs and Drought resistant trees can be found throughout the year. This natural ground cover of shrubs, trees and herbs is nutritive and a palatable fodder for the livestock.
9. Record reflects that after acquittal of the applicant from the crime, all the case property was returned to the owner , whilst the prohibited Roheero Trees were seized in favour of the State for its disposal.
10. The question that requires considerat ion is whether the prohibited trees can be released to the applicant after his acquittal from the criminal case. In my view, prohibited trees cannot be order ed to be released, even though there was no specific provision as it was the cause whereby the crime was commit ted. Moreover , section 517(1) of the Code gives trial court a discretion to order disposal of property by "destruction, confiscation or delivery to any person the property used for the commission of any offence." Moreover , if the prohibited wooden trees are returned to the applicant the same crime can be repeated. Illegal cutting of prohibited trees, through illegal means and methods endangers the environment which in turn threatens the life of living people in the desert area. Cutting of prohibited trees is a crime both against society as well as God's creatures. It is our duty to ensure that the rights of the people are protected and the large scale cutting of trees to be avoided. Accordingly , no ground for invoking the inherent powers of this court has been made out that require prevention of the abuse of the process of the court or otherwise to secure the ends of justice. On the contrary the applicant wants to obtain the prohibited trees to continue with his activity .
11. Record further reflects that the applicant had moved an application for restoration of the case property after his acquittal from the criminal case, which act on the part of applicant cannot be appre ciated for the simple reason that if he would have moved an application for the above purpose, during the course of trial the fate of his criminal case would have been quite different, therefore I am of the view that the applicant has failed to prove his ownership over the case property as no documentary proof has been produced to substantiate his right over the subject case property , which he has denied to claim the same in his 342, Cr.P.C. statement. The applicant cannot "approbate" and "reprobate" at the same time.
12. In view of the above discussion, I am not in agreement with the assertion of learned counsel for the applicant on issue involved in the matter and concur with the conclusion recorded by learned Sessions Court in the impugned judgment dated 6.1 1.2018. Therefore, this application being without any merit is dismissed.