' The question that has been raised in this revision application filed under section 435/439, Cr.P.C., relates to the interpretation of section 517, Cr.P.C.
2. Applicant Imdad Ali, co-accused Mazno, Ali Hyder, Arbab, and Goro were sent up to stand trial in Crime No,87 of 1986, Dhamrah Police Station under section 148-307/149, P.P.C. And 13-D of the Arms Ordinance, 1965. The case proceeded before learned Sessions Judge, Larkana, who vide judgment dated 24-9-1989, acquitted all of them. He, however, confiscated the licensed gun and cartridges belonging to applicant with the following order:- "Property order.
' All the blood-stained articles including earth and Lathis be destroyed while the Pakistani single barrel gun bearing No,40233 along with four live cartridges thereof and the license bearing No,8998, dated 2-1-1986 issued in the name of accused Imdad Ali which now stand confiscated/forfeited to the State, be sent to the District Magistrate, Larkana, for disposal thereof according to law after the expiry of appeal period. The torch with cells thereof be returned to the first informant Shafi Muhammad."
This order passed under section 517, Cr.P.C., is the subject-matter of this revision application.
3. Section 517, Cr.P.C. Empowers a Criminal Court to confiscate the property produced before it during the course of proceedings at the conclusion of trial. The essential conditi ns to pass such order are:--
(i) There must have been an inquiry or trial.
(ii) The same must have been concluded.
(iii) The property in respect of which the order is to be made must be one,
(a) which has been produced before the Court, or
(b) which is in its custody, or
(c) regarding which any offence appears to have been committed, or
(d) which has been used for the commission of any offence. (See Woodrofe on the Code of Criminal Procedure).
4. The evidence which has come on record chi not connect the applicant with this crime. There is also no evidence to show that this gun was used in the A commission of this offence, which is evident from the following extract of the judgment:-- "Under the aforesaid circumstances when none of the examined injured/victims has uttered even a word to implicate the accused persons in this case and the recoveries remained unproved by the prosecution, I am constrained to conclude that prosecution has miserably failed to bring home guilt to the accused persons. Therefore, while giving benefit of doubt to the accused Imdad Ali, Arbab Mazno, Ali Hyder and Goro, I do hereby order for their acquittal. They are present on bail.
Their bail bonds stand cancelled."
5. The point in issue was examined by Ghous Ali Shah, J, in the case of Abdul Ghafoor v. The State, reported in PLD 1982 Kar. 469, and it was observed that the cancellation of licence of arms in a situation where the accused was not found guilty and consequently acquitted by Additional Sessions Judge was not warranted by law. This view was followed in Bachal v. The State reported in 1984 P Cr. L J 1571.
6. This view was followed by me in Criminal Revision No,69 of 1989, in which similar point was involved. The relevant observations made by me are as under:-- "On the face of the record the rifle and gun belonging to applicants were not used at the time of incident and, as such the learned Sessions Judge Larkana had no authority under any law to confiscate the said arms and ammunition with their licences."
7. This question was also examined by a Division Bench of Lahore High Court in the case of Matwalli alias Mutalli v. The State reported in 1990 P Cr. L J 731, in which following observations were made:- "The appellant faced trial under sections 302, 392, 397, 109, 412 read with section 34, P.P.C. The appellant Matwalli alias Mutalli and his co-accused Rehmat Ali were acquitted by the learned Judge Punjab, Special Court for Speedy Trials No,VI, Bahawalpur on 8-2-1989. Even after the acquittal of the appellant, his licensed gun was ordered to be confiscated. The said gun was not used during this incident. The appellant has submitted that his licensed gun may be given to him and may not be confiscated in favor of the State. Learned A.A.-G. Does not oppose this legal position. We, therefore, accept this appeal and order restoration of the licensed gun to the appellant. The appeal stands disposed of."
8. Faced with this situation, the learned A.A.-G. Has also not supported the impugned order. I would therefore, set aside the said order and allow the revision application. The District Magistrate, Larkana is directed to deliver gun, cartridges and license to applicant after being satisfied that the validity of licence has not expired. The applicant will be allowed reasonable time for getting the license renewed, if the same has expired.
Revision .