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Criminal Procedure Code (V of 1898)-

---- Ss. 520, 561-A 8r 517-Disposal of property-Court acquitting petitioner of offence under S. 302, P. P. C. but confiscating rifle allegedly used in commission of offence-Petitioner owner of rifle and license-holder and no other person claiming such rifle--Order of confiscation not showing any reason--Rifle alongwith licence ordered to be returned to petitioner in circumstances of case.

Mian Muhammal Akhtar for Petitioner. Sadig Hayat Lodhi for the State.

This petition is directed against an order, dated the 4th October 1979, whereby the Additional Sessions Judge, Gujranwala, had ordered confiscation of a licensed rifle.

2. The petitioner, Imtiaz Hussain, was one of the three persons who stood trial on a charge under section 302 read with section 34 of the Pakistan Penal Code. It was alleged that they had killed one Safdar Hussain in furtherance of their common intention. According to the prosecution, the petitioner was armed with the aforementioned rifle while participating in the occurrence.

3. During investigation of the case, the said rifle of the petitioner and the licence issued in his favour for keeping the same were taken into possession by the Police.

4. The learned Additional Sessions Judge acquitted all the accused for want of evidence. It was, however, ordered by him that the rifle shall be confiscated to the State.

5. Learned counsel for the petitioner submitted that since the prosecu tion had not been able to substantiate its allegations, including the one relating to the use of rifle by the petitioner, the learned Additional Sessions Judge was not justified in ord'erin g confiscation of the rifle. In reply, it was urged by the learned counsel for the State that since the learned trial Court had not recorded a clear finding in respect of the non-use of the rifle in dispute in the, occurrence, there was nothing wrong with the order of its confiscation.

6. The order of the learned Additional Sessions Judge clearly shows that the prosecution had not been able to prove its allegations including the one that the petitioner had fired the rifle in question. As a result, the peti tioner and his co-accused were acquitted. After the acquittal of the petitioner, there was nothing to warrant the order for confiscation of the rifle of the petitioner. Needless to say that it was an order of penal nature inasmuch as it deprived the petitioner of a valuable weapon. It was not an unclaimed article. The petitioner was its claimant and there was no rival claimant. It is the prosecution's own case that the rifle had been recovered from the petitioner. The fact that the petitioner is the owner of the rifle is also apparent from the fact that he is holding licence for keeping the same. The. learned Additional Sessions Judge has given -no reasons in support of the impugned order. It is therefore, not sustainable.

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