MANZOOR HUSSAIN vs SESSIONS JUDGE, TOBA TEK SINGH and 2 others
This constitutional petition challenges an order passed by the Sessions Judge, Toba Tek Singh, regarding the return of case property (Rs. 40,000) to an accused who had been acquitted. The petitioner, the original complainant, contested the Sessions Judge's decision to grant the return of the money to the respondent after the respondent's acquittal under Section 249-A of the Code of Criminal Procedure 1898. The core legal question was whether an accused, having been acquitted due to the retraction of prosecution witnesses, is automatically entitled to the return of case property that was never claimed during the trial proceedings. The High Court held that the respondent failed to claim the property or dispute its recovery throughout the trial, including during the Section 249-A proceedings. Consequently, the Court set aside the Sessions Judge's order, ruling that the respondent could not claim the property after the conclusion of the trial. The principle laid down is that an accused who fails to assert a claim to case property during the trial proceedings is precluded from seeking its return post-acquittal.
- Is an accused entitled to the return of case property post-acquittal if they failed to claim it during the trial proceedings?
- Does an acquittal under Section 249-A of the Code of Criminal Procedure 1898 automatically entitle an accused to the return of recovered case property?
- Can a claim for the return of case property be entertained if the accused did not dispute the recovery or ownership during the trial?
- Section 379, Pakistan Penal Code 1860
- Section 411, Pakistan Penal Code 1860
- Section 249-A, Code of Criminal Procedure 1898
ORDER
' WAQAR HASSAN MIR, J.---The petitioner has filed the instant petition challenging the order, dated 23-6-2009, passed by the learned Sessions Judge/ respondent No, 1.
2. The learned counsel for the petitioner submits that the petitioner lodged a case F. I. R. No, 95 of 2005, dated 17-6-2005, offence under section 379, P.P.C. 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, P.P.C. Was added and the challan under sections 379/411, P.P.C. Was submitted against respondent No,
2. The copies were delivered, charge was framed and evidence was recorded. P.W.1 and P.W.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 leained 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 P. Ws 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 v. The State" (1998 PCr.LJ 1482 Karachi).
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 PCr.LJ 1482 Karachi, the order impugned is set aside and the writ petition is accepted.