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Criminal Reference No. 70 of 1980, decided on 24th November, 1980,

--- Ss. 435 & 439 read with S. 526-A--Revision (criminal)-Weapon of offence allegedly used in commission of crime, held, could not be handed over to accused on 'superdnama' even though his own property.

S. Muhammad Hussain Khan for Petitioner.

S. Sardar Khan for Respondents.

Date of hearing: 6th November, 1980.

This reference is made by the District Magistrate, Rawalakote which has arisen out of order dated 18th July, 1278 passed by the Magistrate First Class, Dhirkot whereby the alleged weapon of offence seized by the Police in a case during investigation, registered against Muhammad Ashraf accused-respondent and some others under sections 307 and 148/149, P, C. was handed over to Muhammad Ashraf accused on spuradnama' vide reference dated 21st September, 1980. Having dissatisfied with the order of .the Magistrate, the police as well as the complainant filed a revision petition before the District Magistrate who after hearing the parties made a reference to this Court recommending that the impugned order be set aside as no such order could legally be passed by the Magistrate, under section 516-A, Cr. P. C. This section deals with that kind of property taken into possession by police during the investigation or enquiry which cannot be termed as weapon of offence. For example a Motor Car used in a case of smuggling by the accused may be returnable to the owner on 'Spurad Nama' till the disposal of the case but nowhere it was ever done by a Court other than the Magistrate who has passed the impugned order so as to handover the weapon of offence to an accused which was alleged to have been used in the commission of the crime. On the other hand it was argued by the learned counsel for the accused that gun being property of Muhammad Ashraf accused, he was entitled to the restoration of its possession to him, and so the impugned order was properly made by the trial Magistrate. The ownership of the weapon of offence allegedly used in the commission of the crime may be of the accused but his case is obviously distinguishable from any other property such as Moter Car or any other means of transport used by a criminal and that may not be the counsel weapon of offence. The learned counsel was not able to refer to any of the authorities in which a weapon of offence was ever handed-over to an alleged criminal during the inquiry, investigation or trial. Again, the learned counsel for the accused has urged that as, weapon of offence allegedly used in the commission of the offence was a 12 bore gun whereas the gun seized is 16 bore gun and so it was properly seturned to Muhammad Ashraf respondent. I am afraid, I cannot go into the merits of the case at this stage so as to hold whether 12 bole gun was used in the commission of offence or 16 bore one. It is for the trial Court to determine at an appropriate stage and time. Further more, it is contended by the accused that his gun will become rusty in Malkhana' thereby causing damage to it and so he was entitled to the, restitution of its possession on 'Spurdnama'. The apprehension of the accused can be avoided if he himself provides the police concerned with requisite amount of lubrication etc. so as to get the gun seized lubricated whenever necessity arises to do so. However, the authority in custody of the gun is responsible to see that it does not suffer from any damage whatsoever.

In my view, till the determination of the point whether the gun taken into possession by the police was used in the commission of the crime as a weapon of offence or not, the Magistrate was not legally right in, passing the impugned order.

That being so, the impugned order is set aside and the reference is answered accordingly.

Reference accepted.

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