2024 MLD 1970
Section 517 Cr.P.C. clearly mentions that when an inquiry or trial is concluded, Court concerned may pass order for the disposal by destruction, confiscation, or (naeem)delivery to any person claiming to be entitled to possession thereof or otherwise of any property or document. Conclusion of trial includes decision of case in appeal when no order with respect to case property has been made by the appellate Court.
There is no cavil to the proposition that under section 520 of Cr.P.C. this Court is also authorized to pass an appropriate order in case learned trial Court fails to exercise power under section 517 Cr.P.C. Learned counsel for the petitioners could not controvert the fact that petitioners/accused have not claimed such amount as their own (naeem)during the trial rather in their statements under section 342 Cr.P.C alleged that said amount was foisted upon them. Order passed by the learned trial Court clearly speaks that the petitions were not decided on merits but on technical ground that learned trial Court lacks jurisdiction due to acquittal order passed by this Court.
In this case trial Court has ordered confiscation of case property through a judgment of conviction and said decision has been reversed, therefore, principle of merger shall not apply, which attracts only if the appellate Court upholds the decision of trial Court or modify it in substance or relief but in the present case this Court has not upheld or modified the judgment of trial Court, rather quashed it, therefore, by all means, the situation has been reversed to the stage when during investigation amount was shown recovered from the petitioners, then accused, while opening an avenue for the petitioners to once again file the petitions on the analogy of section 516-A or 523 of Cr.P.C. but under section 517 of Cr.P.C. No doubt this Court under section 520 Cr.P.C. can pass an appropriate order, but only when petition under section 517 Cr.P.C. is decided by the trial Court on merits, which has not been done by the trial Court. Railway Department is contesting the claim on the basis of facts and contentions cited above, record of trial Court is also not before this Court and counter claims of the parties require a factual inquiry based on recording of evidence, if necessary, by the learned trial Court/Special Judge (Central) Lahore to determine entitlement of petitioners to alleged amount which function cannot be under taken by this Court while exercising revisional jurisdiction. Therefore, learned Special Judge (Central) Lahore/trial Court would better examine the entire record while assessing the entitlement of the portioners for the amount claimed.
Section 517 of Cr.P.C. is not an exhaustive section, Court after conclusion of trial can also refer the matter to Magistrate for disposal of property as mentioned in section 518 of Cr.P.C.
Though section 104 of Cr.P.C. authorizes the Court to impound any document or thing yet during the trial and after conclusion it can decide the fate of such property including destruction, confiscation and delivery to person entitled. When the accused, during the trial claims the property as his own, then on acquittal he is entitled to receive it back straightaway by the order of trial Court but when the situation is otherwise then Court must decide the question again by providing opportunity to prove the entitlement and also reason for disowning of such property during the trial and Court can presume any fact while deciding application for claim. Section 517 of Cr.P.C. in that case provides jurisdiction to Court to decide all questions arising out of acquittal order. This section is somewhat like section 47 of CPC which says that all questions arising between the parties to the suit in which the decree was passed and relating to the execution, discharge or satisfaction of the decree shall be decided by the Court executing the decree and not by a separate suit. Similarly, as sections 379, 425 and 442 of Cr.P.C., say that all orders passed by Court of Reference, Appeal and Revision shall be certified to the lower Court which shall pass orders confirmable to the judgment and order of the High Court and if necessary, record shall be amended in accordance with law. Thus, in this way lower Court becomes an executing Court like one under section 47 of CPC, therefore, can decide all ancillary question relating to case property in accordance with law.
Crl. Revision 31115/21
Muhammad Shamoon etc. Vs The State etc.
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