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Criminal Petition for Special Leave to Appeal No. 218 of 1980, decided on 24th January, 1984.

(On appeal from the judgment of the Lahore High Court dated 14‑3‑1980 in Criminal Revision No. 1177/67).

‑‑Art. 185(3)‑‑Criminal Procedure Code (V of 1898), S.517, Explanation‑‑Stolen property‑‑Recovery/restoration of‑‑Substitution of case property by or at instance of Investigating Officer‑‑Whether in circumstances no other order except one of restoring converted property to person from whom it was recovered should have been passed‑‑Leave to appeal granted to consider such question and certain other features disclosed in case, which required fuller examination in background of law and equities involved.

Ch. Muhammad Farooq, Advocate Supreme Court with Sh. Abdul Karim, Advocate‑on‑Record for Petitioner.

Advocate‑General, Punjab for the State. Date of hearing: 24th January, 1981.

‑The petitioner seeks leave to appeal against the judgment of the Lahore High Court dated 17‑3‑1980 whereby the order of the Additional Sessions Judge restoring the case property to the petitioner was set aside.

2. A case was registered at the Railway Police Station Lahore on the allegation that tin‑ingots were stolen from the go down of Loco Depot. P.W.R. Mughalpura Lahore on the night between 8/9‑3‑1965. Seventeen persons were sent up for trial. Thirty‑one iron ingots recovered from one Abdullah were put in as the case property. The petitioner claimed that the recovery of these tin‑ingots was effected from its premises and that it belonged to it. The learned Magistrate by his order dated 28‑7‑1966 discharged all the accused under section 253, .Cr.P.C. but as regards Exh. P.1 to Exh. P.31 he ordered that they should be handed over to the P.W.R. in due course as they bore marking of P.W.R.

This order followed the finding that‑‑

"Tin‑ingots recovered from Abdullah P.W. on 13‑3‑1965 were pilfered by the person who conducted the investigation of this case or some one else during the investigation of the case and later on were replaced by tin‑ingots carrying the P.W.R. mark and recovered at the instance of any other accused in some other way."

3. An appeal was preferred by the petitioner which succeeded and the following finding was recorded by the Additional Sessions Judge:

"The clear testimony of Mr. Brown P.W.2 and Sardar Muhammad Anwar P.W.7 as to the recovery of these tin‑ingots from Abdullah

P.W.22 should have left the Magistrate with no option but to direct the same to be handed over to Abdullah appellant. This was nobody's case before him that tin‑ingots Exh. P.1 to Exh. P.31 were Railway property and supposing it was, even then the Magistrate could not take up the question of title and he ought to have returned the property to the person from whom it was recovered and directed the other claimant, if any, to seek remedy in a civil Court."

4. On revision the learned Judge in the High Court held that the Magistrate had passed discretionary order and the discretion was not found to be suffering from any serious infirmity and was supportable. With these general observations the order of the Magistrate restoring the property to the P.W.R. was restored.

5. The learned counsel for the petitioner in seeking leave has relied on two legal grounds. In the first place it has been contended on the strength of explanation to section 517, Cr.P.C. that the property is substituted for the property actually recovered because the case property for the purposes of section 517, Cr.P.C. had to be dealt with as if it was the recovered property. On the finding which the learned Magistrate recorded, namely, that the substitution had taken place at the instance of the Investigating‑Agency no other order except one of restoring the converted property to the person from whom it was recovered should have been passed. Secondly, it is contended that the order is violative of all judicial norms and rewards the wrongdoer twice. A person who substituted the property recovered got the property that was recovered and also the property that he substituted. On the finding or observations of the Magistrate who happened to be the trial Court, evidence was fabricated before him in order to secure the conviction of the accused Such a perversity in judicial proceedings should not have been allowed to take place.

6.We find that the case discloses certain features, which require fuller examination in the background of the law and the equities involved. Leave to appeal is, therefore, granted.

Let the record be completed for early hearing.

M. I. Leave granted.

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