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Criminal Revision No. 1129 of 1970, decided on 11^th November 1970.

S. 516‑A‑Custody of crime weapon‑Distinguishable from custody of any other property involved in crime such as motor‑car or any other means of transport‑Magistrate refusing to hand over weapon of offence (gun) to accused on supurdari pending inquiry and trial of case Order of Magistrate, held, perfectly reasonable.

Crown v. Illahi Bakhsh (1904) 1 Cr. L J 38 ; Phula Singh v. Emperor A I R 1931 Lah. 565; Matadin Sharma v. The King A I R 1949 Pat. 44 and Sh. Inayat Hussain v. The State and others P L D 1965 Lah. 425 held not applicable.

Ch. Muhammad Akbar Khan Bhatti for Petitioner.

Azhar Hafeez for A.‑G. for the State.

Date of hearing : 11th November‑ 1970.

A case under section 307, P. P. C. was registered against the petitioner at Police Station Pindi Bhattian. During‑the investigation the police took into possession a single barrel licensed Gun No. 6994 of the petitioner which was alleged to have been used in the commission of the crime. The petitioner approached the Magistrate under section 516‑A, Cr. P. C. for getting back his gun on sapurdari. The learned trial Magistrate refused to return the same pending trial of the case. He, however, observed that order will he passed after conclusion of the trial. The petitioner approached this Court under section 439, Cr. P. C. His revision petition No. 956 of 1970 was dismissed in default by my learned brother Dr. Nasim Hassan Shah, J. on 21st September 1970. Again on 22nd October 1970 he submitted this revision petition which was admitted by the learned Single Judge.

2. Section 516‑A, Cr. P. C. empowers a Magistrate to pass such order as he thinks fit in regard to any property which is alleged to have been used in the commission of crime when it is produced before him during enquiry or at the trial. It was argued that gun being the property of the petitioner, he was entitled to its possession on sapurdari during the trial and refusal to give back the same to him is not proper exercise of jurisdiction by the Magistrate under section 516‑A, Cr. P. C. Admittedly gun is ‑ property of the petitioner. It is a weapon of offence and his base is obviously distinguishable from any other property such as a motor car or any other means of transport, the driver of which gets involved under section 338, P. P. C. or a hackney carriage whose driver is accused of an offence. under section 279, P. P. C. or a ferry used by a criminal for crossing a stream in his attempt to escape from the scene of the crime. Such means of conveyance are machinery and assets of a mill regarding which criminal misappropriation is alleged against one partner by another.

3. In Crown v. Ilahi Bakhsh ((1904) 1 Cr. L J 38) Mr. H. D. Graik, C. S., exercising the powers of a Magistrate of the Ist Class in the Delhi District, sentenced Ilahi Bakhsh under section 279, Cr. P. C , to pay a fine of Rs. 50. It was also ordered under section 517, Cr. P. C. that .the cart, pony and harness which the accused was driving, should be sold to realize up to Rs. 90 which should be paid as compensation to the com plainant. Sir William Clark, Kt., Chief Justice of the Punjab Chief Court held that the order 'was illegal. In Phula Singh v. Emperor (A I R 1931 Lah. 565) it was held that motor car cannot be said to have been used by accused for offence under section 338, P. P. C. and cannot be detained pending conclusion of trial.. Again in Matadin Sharma v. The King (A I R 1949 Pat. 44) a business man applied for release of his truck which had been taken into custody in connection with an offence of smuggling of yarn committed by his son‑in‑law. An order for release of the truck was passed upon security which was furnished. In spite of this the Magistrate refused to release the truck on the ground that it was required as an exhibit in another case under Arms Act in which it was alleged that a revolver and live cartridges were found in the truck. On revision it was held that the order of detention was unfair and unjust. It. was thus, set aside. Ortcheson, J. in Sh. Inayat Hussain v. The State and others (P L D 1965 Lah. 425) seat aside an order of the Magistrate who handed over the assets and machinery of the mill ; sapurdari to a shareholder who accused the other share 3 holder of criminal, misappropriation of Rs. 68,000 and against whom a case under sections 406, 409, 420 and 379, P. .P. Cf. was registered at Misri Shah Police Station. Learned counsel for the parties have not been able to cite any case in which a weapon of, offence was handed over to an alleged criminal during the trial. In my view the order of the Magistrate refusing to hand over the gun to the petitioner on sapurdari during the trial is perfectly reasonable.

4. It was vehemently argued that the petitioner will be left undefended in the clutches of his enemies who have involved him in a false case under section 307, P. P. C, I cannot go into the merits of the case which is pending against the petitioner. Suffice it to say, the order of the trial Magistrate cannot be considered to be one in which exercise of discretion can be said to be arbitrary or unjust. The petition. therefore, fails and is dismissed.

Petition dismissed.

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