GHULAM SHABIR LASHARI vs THE STATE

1. This criminal revision has been moved challenging the order passed by the First Additional Sessions Judge, Khairpur in Sessions Case No. 239/88.

2. The facts relevant for the purpose of this revision application are that on 15-5-1988 one Harimal lodged the F.I.R. With Police Station Town Khairpur under section 17/3 Offences Against Property (Enforcement of Hudood) Ordinance, 1979 to the effect that on the night of occurrence when he after closing his shop was going towards his house alongwith his brother Jairamdas having a cash of Rs.8,000 in paper bag and the books of shop on their motor-cycle when one motor-cycle on which three persons were riding came from behind and the complainant party was hit with that motor-cycle resulting in their fall. Two of the said accused of whom one was armed with pistol are said to have alighted and snatched the bag containing the cash and books of the shop and then all the three accused are said to have made good their escape. The complainant had noted the number of the motor-cycle of the accused, which is mentioned in the F.I.R. As 16696/KR. The police after usual investigation had arrested the present applicant Ghulam Shabir and co-accused Mehar Ali and Sobdar Ali and the case was challaned. The said motor-cycle and a revolver were recovered. An application was moved before the trial Court under section 516-A, Cr.P.C. For return of the said motor-cycle and the revolver on Superdari by the present applicant and co--accused Mehar Ali. However, the application of Mehar Ali for restoration of the revolver was not pressed but the application of present applicant for restoration of motor-cycle was pressed which was dismissed and, therefore, this revision application.

3. I have heard Mr. Mushtaq Hussain Shah, the learned counsel for the applicant and Mr. Muhammad Siddiq Kharal, the learned Addl. A.-G. For State.

4. The learned counsel for the applicant has vehemently argued that the said motor-cycle has not been used in the commission of the alleged offence and, therefore, it cannot be said to be the subject-matter of the case nor it can be treated as case property. Suffice it to say that in F.I.R. It is mentioned that the three persons were riding on the said motor-cycle and they came and hit the complainant party's motor-cycle with this motor-cycle and, therefore, it can safely be said that this motor-cycle was used by the accused in felling down the complainant party from- their motor- cycle and to prevent them from escaping in order to snatch the cash which the complainant party has as they were going to their house after closing the shop. The learned counsel has further submitted that the motor-cycle is owned by the present,, applicant Ghulam Shabir as according to the entries in column No-5 in the challan it is shown that a T.O. Form duly signed by the previous owner has been recovered by the police. A T.O. Form is by itself not a document of title. There is no explanation forthcoming from the learned counsel for the present applicant as to on what date this T.O. Form was signed and if this amounted to transfer of the motor-cycle in favour of present applicant then why such entries were not got made in the record of the Excise and Taxation Department and the registration book. This may give rise to some adverse presumption against the present applicant on which however, I would refrain from making any comment at this stage.

5. The matter will be for the trial Court to be dealt with.

6. From the above discussion I am satisfied that the present application merits no consideration and is accordingly dismissed.