These five petitions, bearing Criminal Miscellaneous Nos. 3954, 5052, 5054 and 5056 of 1968 and 2746 of 1969, pray for the quashing of the trials of the petitioners under sections 379/411, P. P. C., on the basis of five challans. Three of these cases 'are pending in the Court of A. D. M., Gujranwala, and two in the Court of another Magistrate there.
2. The facts may be briefly stated. The present petitioners, namely, Hafeeaullah, Zulfiqar Ali and Muhammad Ishaq, were sent up for trial under section 379/411, P. P. C. On the allegations that they were in possession of copper wire which was a stolen property belonging to the Telephone Department. They were tried in a ease along with one Muhammad Anwar by Mr. Waqar Ahmad, Magistrate First Class, Lahore, who discharged the petitioners and Muhammad Anwar on the short ground that Inayat Ali and Abdul Sattar, recovery witnesses, were declared hostile by the prosecution as they did not support the prosecution that the case-property was recovered from the possession of the accused persons, and that the only witness who could support the story of the prosecution as, to the recovery was Muhammad Aslam Khan, Sub-Inspector, but it was not possible to convict the accused on the statement of the Police Officer. The trial Magistrate while discharging the accused, ordered that the case property recovered from the accused should go to them after the decision of the appeal or revision, if any. The State did not impugned the order of discharge, but the record shows that the investigating officer at his own filed a revision petition which came up for hearing before Kh. Ihsanul Haq, Additional Sessions Judge, Lahore, who took the view that the order of discharge was perfect and that the revision petition was not competent as it was filed by the investigating officer and not by the State or the complainant. As to the ownership of the property he observed that the aggrieved party could question the ownership of the property in a competent Court.
3. To begin with, the petitioners filed Cr. Misc. No. 3954 of 1968, and the same came up for hearing before my learned brother Muhammad Iqbal, J., before whom it was contended that the petitioners had been discharged by the order dated the 13th of January 1968, of Mr. Waqar Ahmad, Magistrate First Class, Lahore, and that the prosecution has presented a challan in the Court of the Additional District Magistrate, Gujranwala, against the petitioners in respect of four maunds of wire which was a part of the case property in the earlier case, and that the subsequent proceedings being an abuse of the process of the Court, merited to be quashed. To support his contention, the learned counsel placed on record a copy of the final police report made under section 173, Cr. P. C. And the record of the recovery memos. To show that the witnesses cited are the same, who did not support the prosecution story with the result that Mr. Waqar Ahmad, Magistrate First Class, Lahore, had discharged the accused, therefore, it was contended that another challan on the same facts was an abuse of the process of the Court. On identical allegations Cr. Misc. Nos. 5052, 5054 and 5056 of 1968 and 2746 of 1969, were also admitted.
4. Learned counsel for the petitioners urged before me that the prosecution of the petitioners in the five remaining cases would be an abuse of the process of the Court, as the evidence which will be led by the prosecution in support of the remaining challans is essentially is the same as the evidence which was led in the first case and resulted in the discharge of the accused, therefore, if these trials are allowed to proceed they will be abuse of the process of the Court and as this Court has inherent jurisdiction to interfere under section 561-A, Cr. P. C. These trials should be quashed.
5. On examining the record in the cases before me I found that the evidence in the remaining cases is identical to that in the first case in which the accused were discharged. The evidence is admittedly identical and as the State has not questioned the validity of the order of discharge of the accused in the first case I think it would amount to an abuse of the process of the Court if the petitioners be further prosecuted in these cases. I, therefore, make an order quashing the trials of the petitioners in the five remaining cases.
6. On examining the record of the first case, in which the accused were discharged, I found that the trial Magistrate did not examine the accused and there is no indication whatsoever on the record that the accused claimed the property which was the subject-matter of theft, despite this, the trial Magistrate ordered that the property should go to the accused after the period of appeal or revision. As the validity of the order was not questioned, the order as to the restoration of the property also became final. We know that in normal circumstances of acquittal or discharge the property would be returned to the person from whom it was seized, but in the instant case, there were circumstances to show that the accused did not claim the property nor there were grounds to hold that the property could belong to them and the question of ownership was not gone into the judgment and decided one way or the other and the order of discharge was based on inadequacy of the evidence, therefore, it was unreasonable to return the stolen property to the accused persons. The best course in this case was to direct the person from whom the property was seized to establish their title in a civil Court. I am constrained to remark that the trial Magistrate in the instant case adopted a most reprehensible procedure in regard to the property involved and ordered the return of it to the accused though they did not claim it before him. At this stage, in view of the finality of the order passed by the Magistrate, this Court cannot reopen the case, particularly, when the property has also been delivered and disposed of by the accused. The Telephone Department, if so advised, may pursue the matter in a civil Court to recover the value of the property.
A copy of this order may be placed on the personal file of the Magistrate and also communicated to him. Similarly, a copy may be sent to the Director-General, Telephone, for information.