' One Abdul Aziz was found in possession of a gun and live cartridges for which he had no valid licence. He was accordingly prosecuted in the Court of Civil Judge and F.C.M., Thus who vide judgment dated 30-9-1984 convicted him and sentenced him to suffer R.I. For six months. The learned Magistrate while recording conviction against Abdul Aziz passed the following order under section 517, Cr.P.C.
PROPERTY ORDER "The case property, the gun No,59283 and 18 live cartridges to remain with the owner/licensee Sultan Ahmed, as already ordered."
2. The said Abdul Aziz challenged his conviction and sentence in appeal which was heard and dismissed by II-Additional Sessions Judge, Jacobabad vide judgment dated 22-12-1985. The learned Additional Sessions Judge while maintaining the conviction and sentence awarded to Abdul Aziz also confiscated the licensed gun of the applicant in the following words:- PROPERTY ORDER "The gun and the cartridges having been unauthorisedly possessed by the appellant and having been parted with by D.W. Sultan Ali in contravention of conditions of licence are liable to be confiscated. Accordingly these are confiscated to the Government and are placed at the disposal of the District Magistrate. The licence of the gun should also be sent to him for making formal orders of its cancellation. Notice be sent to Sultan Ali to deposit the gun and the cartridges in the District Armoury and the licence in the office of the District Magistrate, for orders of cancellation, within three months of the judgment."
' This order dated 22-12-1985 is the subject-matter of this revision application filed under section 439 read with section 561-A, Cr.P.C. On 28-3-1989.
3. Section 423, Cr.P.C. Deals with the powers of the Appellate Court in the following words:- "423. Powers of Appellate Court in disposing of appeal.--(1) The Appellate Court shall then send for the record of the case, if such record is not already in Court. After perusing such record, and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and in case of an appeal under section 411-A, subsection (2) or section 417, accused, if he appears, the Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may:-
(a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be retried or sent for trial to the Court of Session or the High Court as the case may be, or find him guilty and pass sentence on him according to law:
(b) in an appeal from a conviction (1) reverse the finding and sentence, and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate to such Appellte Court or sent for trial or (2) alter the finding, maintaining the sentence, or with or without the altering the finding, reduce the sentence or, (3) with or without such reduction and with or without altering the finding alter the nature of the sentence, but subject to the provisions of section 106, subsection (3), not so as to enhance the same;
(c) in an appeal from any other order, alter or reverse such order;
(d) make any amendment or any consequential or incidental order that may be just or proper.
(2) Omitted."
4. It will be manifestly clear from a bare reading of the above section that the Appellate Court has under clause (d), power to make an amendment in the order or pass any consequential or incidental order which may be just and proper in the circumstances of the case. There was clear finding of the Courts below that the said Abdul Aziz was found going armed with a gun and live cartridges for which he had no valid licence and he was accordingly convicted for the said offence punishable under section 13-D of the Arms Ordinance, 1965. The applicant who claimed the ownership and is licence-holder of this gun had in fact appeared as defence witness for Abdul Aziz, but was disbelieved. Therefore, there was no occasion for the learned Civil Judge and F.C.M., Thul to have delivered the custody of the gun to applicant. The learned Additional Sessions Judge, therefore, rightly reversed this order.
5. The only important point that the learned counsel for applicant has been able to bring out is that, the applicant was not afforded an opportunity before passing the impugned order. At first sight the argument appears to be attractive and at one time I felt inclined to accept it, but on reconsidering the legal aspect involved in the decision of appeal by learned Additional Sessions Judge, I see no substance in it. The applicant had appeared as defence witness for Abdul Aziz and his evidence was not found worthy of credence. The finding was confirmed by learned Additional Sessions Judge, Jacobabad, who passed a proper order in respect of the disposal of case property. The finding of the learned Civil Judge and F.C.M. Thul for delivering the custody of gun to applicant was in fact destructive to his own finding recorded against Abdul Aziz who was found going armed with unlicensed arm and ammunition. The principle of audi alteram partem was examined in Sheopujan Choudhury v. The State of Bihar and others reported in AIR 1956 Patna 212, wherein the following observations were made:-- "I think that the concept of 'natural justice' cannot be imprisoned within the straight jacket of any fixed formula. It is not a mechanical instrument applicable to all situations."
6. The present revision application was again filed after a delay of more than three years. The revision application was liable to be dismissed on this score alone. My own judgment reported as Salim Ahmed Khan v. The State, 1989 P Cr. L J 1118, is relevant in such a situation.