MOHAMMAD HALEEM, J.--This appeal is directed against the judgment dated 31st July 1969 by which the learned Sessions Judge, Karachi ordered the confiscation of jeep bearing registra--tion No. KAB 9258 while convicting Rajab Ali and Samano in Sessions Case No. 45/68 for the murder of Allah Ditto and attempted murder of Abdul Qadir.
2. The facts which have given rise to this appeal are these :- Jeep No. KAB 9258 belonged to the appellant, who sold it for Rs. 8,000 to Rajab Ali on 9th of August 1964, under an agreement of the same date, and received a sum of Rs. 4,000 and for the balance it was agree. That it would be paid by 31st of July 1964. In the meantime appellant Rajab Ali along with another co-accused Samano was implicated for the murder of Allah Ditto and attempted murder of Abdul Qadir. Raja Ali was arrested along with Samano on 11th of November 1964. He was in jail and, therefore, could not pay the balance of the price. The appellant then sent to him a notice for the payment of the balance of the amount and on his failure to do so filed a suit in the Court of 8th Civil Judge, Karachi on 10th December 1965. Rajab Ali who was then in jail appeared in Court on 18th of December 1965, and admitted the claim of the appellant but at the same the expressed his inability to pay the balance price but agreed to returned the jeep if the sum of Rs. 4,000 paid by him was returned to him. He even agreed to accept Rs. 3,500. This amount was however paid to him in Court. The Court in terms of this compromise decreed the suit for the return of the jeep.
3. The appellant then filed an application under section 516-A, Cr. P. C. In the Court of S. D. M. Old Town, for the return of the jeep to him on the basis of the decree in his favour; the case was then at the committal stage and the learned Magistrate by an order dated 14th January 1966, granted the request and ordered for the return of the jeep if the appellant executed a, bond for Rs. 10,000 to ensure its production whenever ordered. The appellant got back the jeep on his executing the bond. However, at the stage of the trial of Rajab Ali in the Sessions Court, the learned Sessions Judge ordered the appellant to produce the jeep. He did so but the jeep was not returned to him thereafter and ultimately it was ordered to be confiscated by the learned Sessions Judge while convicting Rajab Ali and Samano. The appellant being thus aggrieved by the order of confiscation has appealed to this Court.
4. It will be convenient here to reproduce that part of the order which deals with the confiscation of the jeep in question the jeep used in the commission of offence is also confiscated by the Government. It shall be sent to the S. D. M. Who shall proceed further according to law. This order will be executed after the period of appeal is over".
The ocular evidence led at the trial had no conclusively established that it was the same jeep in which Rajab Ali had come along with Samano and others to commit the murder of Abdul Qadir, but Rajab Ali himself admitted in his judicial confession that he along with the other assailants had come in this very jeep to the place of incident, effected. Their escape r in it and was later on apprehended while he was proceeding in it from Karachi towards Hyderabad on the National Highway at Thatta. This very jeep was secured by Mohammed Yousuf S. H. O. Of Police Station Thatta and he brought it back to Karachi alongwith Rajab Ali and Samano and handed it over to Asrarul Haq, Head Muharir of Soldier, Bazar Police Station. The learned Sessions Judge in view of the above admission in the judicial confession reached the conclusion that the jeep in question was used in the commission of crime, and thus ordered its con--fiscation under section 517, Cr. P. C. Mr. Mohammed Ibrahim Memon, learned counsel for the appellant vehemently urged before us that the jeep in question could not be said to have been used in the commission of crime as it was merely used for carry--ing the assailants to the place of incident and thereafter in effecting their escape. According to him the phrase "used for commission of any offence" in section 517 of the Cr.
P. C. Refers to instruments like guns and swords and not to be a vehicle which is merely used for carrying the assailants from one place to another. In. Support of the above contention learned counsel for the appellant relied on Jarip Gaai v. Emperor (1Cr. L J 849), Abnish Chandra Bhurtacharjee v., Emperor (6 Cr. L J 293) and Sayeed Bahawal Shah v. Crown (PLD 1951 B J 57). On a review of these authorities we are of the view that this contention has substance.
Section 517 reads as under :-
(1) When an inquiry or a trial in any Criminal Court is concluded; the Court may make such order as it thinks fit for the disposal (by destruction, confiscation, or delivery to any person claiming to be entitled to, possession thereof or other-wise) of any property or document produced before it or in its custody or regarding which any offence appears to have been committed, or which has been used for the commission of any offence.
(2) When a High Court or a Court of Sessions makes such order and cannot through its own officers conveniently deliver the property to the person entitled thereto, such Court may direct that the order be carried into effect by the District Magistrate.
(3) 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 sub--section (4), be carried out for one month, or, when an appeal in presented, until such appeal has been disposed of.
(4) Nothing in this section shall be deemed to prohibit any Court from delivering any property under the provisions of subsection (1) to any person claiming to be entitled to the posses--sion thereof, on his executing a bond with or without sureties to the satisfaction of the Court engaging to restore such property to the Court if the order made under this section is modified or set aside on appeal."
The words "used for the commission of any offence" in the above section have been judicially interpreted in the above decisions. In Jarip Gazi v. Emperor, the question involved was whether the District Magistrate could order the confiscation of the boat in which the thieves had carried the stolen property. The Division Bench of the Calcutta High Court while setting aside the order held that the words mean an instrument employed in committing an offence and held that if a wide interpretation is given to these words then it would also cover a case of a house which is used by the thieves or where coins are counterfeited or any unlawful trade is carried on and this could not have been the intention of the Legislature. In Abinash Chandra Bhuttachatjee v. Emperor, the question involved was whether a printing press could be confiscated where a seditious matter was printed and it was held by a -Division Bench of the Calcutta High Court that the words refer to an instrument with which an offence is committed and that is the import of the word "used". In Sayed Bahawal Shah v. Crown, the question for consideration was whether a mere used by one of the thieves for effecting this escape could be confiscated. The learned Judge who derided this case relied oil the cases cited above and observed as under; "The rule of law is that if a property which could not nave contributed to the commission of an offence, being remotely connected with it, was made use of by an offender, that property could not be said to have been used in the commission of that offence. Under the present circumstances, the possession of a mare by the culprits was meant to take them to and front the place of occurrence, and it was not meant to be used like the implements "of house breaking, and being only indirectly and distantly connected with the actual offence, without the use of which the offence of theft could have been committed, it would be wrong to hold that it was used for the commission or theft", and set aside the order of confiscation.
We respectfully agree with the reasoning upon which the orders of confiscation were set aside in the above cases. In the Concise Oxford Dictionary the word "use" has been defined to mean, "employ for a purpose". In this context if the word "property" occurring earlier in the section is read with the words "used for the commission of any offence", it would clearly mean such property as has been employed in the commission of any offence and that could only imply an instrument with which the offence was committed. The jeep which was merely used for going to and escaping from the place of incident could not this be covered within the meaning of the words "property . . . . . Used for commission of any offence." Here the subject-matter of the charge was not the escape of Rajah Ali in the jeep but the murderous assault by means of a lethal weapon such as a revolver. On this view of the matter we are of the view that the order confiscation is bad in law and should be set aside. Learned counsel for the State has fairly conceded to the correctness of the we have taken above. For the foregoing reasons we would side the order of confiscation and order the jeep to be returned to the appellant. The appeal accordingly succeeds and allowed.