PLJ 2010 Cr.C.
(
Present: Waqar Hassan Mir, J.
MANZOOR HUSSAIN--Petitioner
versus
SESSIONS JUDGE, TOBA TEK SINGH and 2
others--Respondents
Crl. Misc. No. 2035-M of 2009, decided on
19.5.2010.
Criminal Procedure Code, 1898 (V of
1898)--
----Ss. 561-A & 249-A--Pakistan Penal
Code (XLV of 1860), Ss. 379 & 411--Superdari of
stolen property was handed over to acquittal accused u/S. 249-A, Cr.P.C.--Challenge to--Prosecution witnesses were declared
hostile--Respondent/accused was acquitted--After acquittal of the accused
submitted an application for return of stolen amount on superdari,
which was dismissed--Sessions Judge sanctioned superdari
through impugned order--Validity--Respondent/accused had never claimed the case
property throughout the proceedings, even in his application u/S. 249-A Cr.P.C.--Police had not mentioned that such amount
illegally or that it belonged to the accused--Respondent/accused had ample
opportunity to lay his claim on the case property even before passing of the
order but nothing was done--Petition was allowed. [Pp. 478 & 479] A
1998 P.Cr.L.J.
1482, Kar. rel.
Mr. Muhammad Ibrahim
Khalil, Advocate for Petitioner.
Mr. Muhammad Asif
Kainth, Advocate for Respondent No. 2.
Ch. Muhammad Aslam
Sindhu, Addl. Prosecutor General for State.
Date of hearing: 19.5.2010.
Order
The petitioner has filed the instant
petition challenging the order dated 23.6.2009, passed by learned Sessions
Judge/Respondent No. 1.
2.
The learned counsel for the petitioner submits that the petitioner
lodged a case FIR No. 95/2005 dated 17.6.2005, offence under Section 379 PPC in
Police Station Chutiana, District Toba
Tek Singh against Khalid Mehmood, Respondent No. 2. Subsequently, recovery of
Rs.40,000/- was made from the accused/Respondent No. 2 and offence under
Section 411 PPC was added and the challan under
Section 379/411 PPC was submitted against Respondent No. 2. The copies were
delivered, charge was framed and evidence was recorded. PW-1 and PW-2 joined
hands with Respondent No. 2/accused and they were declared hostile by the
prosecution and cross-examined by the prosecution side, resultantly Respondent
No. 2 was acquitted by the learned trial Court under Section 249-A Cr.P.C. vide its order dated 26.2.2008. After the acquittal
of Respondent No. 2, he submitted an application first time on 29.2.2009 before
the learned Judicial Magistrate for the return of Rs.40,000/- on Superdari, which was dismissed by the learned Judicial
Magistrate vide speaking order dated 3.2.2009. Feeling aggrieved, Respondent
No. 2 preferred a revision petition before the learned Sessions Judge, Toba Tek Singh and the learned
Sessions Judge passed the impugned order dated 23.6.2009.
3.
Further that the application moved for Superdari
of Rs.40,000/- as case property was dismissed by the
learned Judicial Magistrate vide his order dated 3.2.2009 observing therein
that PWs having been retracted, the benefit of which
was given to the respondent under Section 249-A Cr.P.C.
hence his acquittal was under having extended him the benefit of doubt and was
not clear acquittal. The case property as was confiscated to state by earlier
order cannot be given to the respondent. Reliance is placed on the case
reported as "Muhammad Tariq and 3 others Vs. The State" (1998 P.Cr.LJ. 1482
4.
On the other hand, learned counsel for the respondent submits that it
was a case of theft and allegation against the respondent was that he has
stolen a buffalo, which was sold by him and in return Rs.40,000/- were
recovered; that as he has now been acquitted, therefore, the amount on Superdari should have been given to him and the learned
Court was wrong in saying that the respondent was asking too much as it was the
same amount squeezed by the police, planted upon him and presented as stolen
amount before the learned trial Court and qua the same the respondent has got
acquittal.
5.
Heard. Record perused.
6.
It is found that the respondent had never claimed the case property
throughout the proceedings, even in his application under Section 249-A Cr.P.C. He has not mentioned that police has recovered this
amount illegally or that it belonged to him. As the respondent had ample opportunity
to lay his
claim on the
case property even before passing
of the order but nothing was done. Therefore, finding merit in the submissions
of the learned counsel for the petitioner and relying on 1998 P.Cr.L.J. 1482
(R.A.) Petition
allowed.