PLJ 2021 Cr.C. 1145
[Balochistan High Court, Quetta]
Present: Muhammad Hashim Khan Kakar, J.
BISMILLAH--Appellant
versus
STATE--Respondent
Crl. A. No. 34 of 2020, decided on 15.10.2020.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 410--
[Pp. 1147 & 1148] A & B
1997 PCr.LJ 500 and 1998 SCMR 1993.
Mr. Masood Ahmed Dotani, Advocate for Appellant.
Mr. Abdul Mateen, Deputy Prosecutor General for State.
Date of hearing: 28.9.2020.
Judgment
Through this appeal under Section 410, Cr.P.C. the appellant viz. Bismillah has challenged the legality and propriety of the order dated 27th August, 2020 (“the impugned order”), passed by the learned Additional Sessions Judge, Ziarat (“the trial Court”) in Session Case No. 02 of 2020, regarding the case property which reads as under:
‘‘Case property pistol Bearing No. EE-4972 AP7.65 licensed one is confiscated in favour of state while Deputy Commissioner is directed to cancel the arms license No,4659 dated 31.12.2018 issued to the accused Bismillah Khan S/o Noor Khan. Parcel No 2, 3, 4 blood stained cloths of injured be destroyed accordingly after laps of appeal period.
2. Relevant facts for disposal of the instant appeal are that the appellant was booked in Crime No. 05/2020, under Section 324, PPC, lodged with Levies Station Zindra, district Ziarat. He was tried by the learned trial Court in Session Case No. 02/2020 and after accepting an application under Section 345(2), Cr.P.C. he was acquitted of the charge by means of the impugned order, however, the case property i.e. pistol bearing No. EE-4972 AP7.65 was ordered to be confiscated in favour of the State, hence this appeal.
3. Mr. Masood Ahmed Dotani, learned counsel for the appellant submitted that the learned trial Court has no power to cancel the appellant’s pistol license as the powers of cancellation of the license do not vest in him in the circumstances of the case by virtue of Section 12 of the West Pakistan Arms Ordinance, 1965. He further submitted that though the appellant was acquitted of the charge on the basis of compromise, yet Section 345 (2), Cr.P.C. the effect of an acquittal recorded by a Court on the basis of a successful and complete compounding of a compoundable offence shall include all the benefits and. fruits of a lawful acquittal, as such, the impugned order, being illegal is liable to be set aside up to the extent of cancellation of license and confiscation of arms.
4. In order to resolve the controversy between the parties, it would be relevant to reproduce herein below Section 12 of
12. Cancellation and suspension of Licenses.
(1) Any licence may be cancelled or suspended;
(a) by the officer by whom the same was granted or by any authority to which he may be subordinate, or any [District Co-ordination Officer] within the local limits of whose jurisdiction the holder of such Licence may be, when, for reasons to be recorded in writing and after giving the holder of the Licence an opportunity of showing cause against the proposed cancellation or suspension, such officer, [or authority] deems it necessary for the security of the public peace to cancel or suspend such Licence; or
(b) by any Judge or Magistrate before whom- the holder of such Licence is convicted of an offence against this Ordinance or against the rules and Government may, by a notification in the official Gazette, cancel or suspend all or any Licences throughout the Province or any part thereof
(2) An appeal against an order of cancellation or suspension under clause (a) of sub-section (1) may be made by the person whose Licence has been cancelled or suspended to the’Immediate official superior to the authority ‘making the order, within sixty days of the receipt by him a copy of the order where appeal lies to Government, and where appeal lies to any other authority, within thirty days of the receipt by him of a copy of the order.”
5. Mr. Masood Ahmed Dotani, learned counsel for the appellant submits that the learned trial Court does not have power to cancel the license of the appellant, within the definition of any of the above authorities, as such, after acquittal of the appellant, the impugned order is not tenable in law and is liable to be set aside. Admittedly, the pistol in question is licensed one and after acquittal of the appellant the learned trial Court should not have confiscated the same in favour of the State and was also not authorized to cancel the license of the appellant. The learned trial Court should have returned the pistol to the appellant as the same was taken into possession by the levies officials from his possession.
6. It seems that the learned trial Court has confiscated the pistol in question in favour of the State and directed the concerned Deputy Commissioner for cancellation of its license on account of the fact that the appellant was acquitted of the charge on the basis of compromise, effected between the parties out of the Court through notables of the area. It is by now settled that the acquittal is acquittal whether it is on the basis of a declaration by a Court on the conclusion of the trial that someone is not guilty of the charge or at any stage under Section 249-A or 265-K, Cr.P.C. or on the basis of compromise under Section 345, Cr.P.C. While holding this view, I am fortified from the dictum laid down by the Hon’ble Supreme Court of Pakistan in the case of Manzoor Hussain Jatoi v. State, 1997 PCr.LJ 500 and Muhammad Islam v. Government of N.W.F.P., 1998 SCMR 1993;
“We are inclined to uphold the above view inasmuch as all acquittals even if these are based on benefit of doubt are honourable for the reason that the prosecution has not
succeeded to prove their cases against the accused on the strength of evidence of unimpeachable character. It may be noted that there are cases in which the judgments are recorded on the basis of compromise between the parties and the accused are acquitted in consequence thereof. What shall be the nature of such acquittals? All acquittals are certainly honourable. There can be no acquittals, which may be said to be dishonourable. The law has not drawn any distinction between these types of acquittals.”
7. In view of the dictum laid down by the Hon’ble Supreme Court in the aforementioned case, which was reiterated in the Suo Muto case No. 3 of 2017, I am of the opinion that no distinction can be drawn between an acquittal on the basis of compromise in compoundable offences or an acquittal by way of benefit of doubt. The consequences in each case would be the same. In the context of the provisions of Section 345 (6), Cr.P.C. the effect of an acquittal recorded by a Court on the basis of a successful and complete compounding of a compoundable offence shall include all the benefits and fruits of a lawful acquittal. In case of acquittal, the accused becomes entitled to all the relief consequent upon to his acquittal including the release of his property seized by the police/levies during the investigation of the case.
Since, the accused was acquitted of the charge in view of the compromise effected between the parties, as such, he is entitled to get the case property. In such view of the matter, the instant appeal is allowed and the impugned order, regarding confiscation of pistol bearing No. EE-4972 AP7.65 and cancellation of arms license No. 4659 dated 31.12.2018, being not tenable is set aside and the case property i.e. pistol bearing No. EE-4972 AP7.65 is ordered to be delivered to the appellant after due verification of the license by the issuing authority.
(A.A.K.) Appeal allowed
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