Law: Criminal Procedure Code (V of 1898)

Section: 435, 439, 526(A)

Criminal Procedure Code (V of 1898) Ss. 435 & 439 read with S. 526-A--Revision (criminal)-Weapon of offence allegedly used in commission of crime, held, could not be handed over to accused on 'superdnama' even though his own property. Date of hearing: 6th November, 1980. ORDER This reference is made by the District Magistrate, Rawalakote which has arisen out of order dated 18th July, 1278 passed by the Magistrate First Class, Dhirkot whereby the alleged weapon of offence seized by the Police in a case during investigation, registered against Muhammad Ashraf accused-respondent and some others under sections 307 and 148/149, P, C. was handed over to Muhammad Ashraf accused on spuradnama' vide reference dated 21st September, 1980. Having dissatisfied with the order of .the Magistrate, the police as well as the complainant filed a revision petition before the District Magistrate who after hearing the parties made a reference to this Court recommending that the impugned order be set aside as no such order could legally be passed by the Magistrate, under section 516-A, Cr. P. C. This section deals with that kind of property taken into possession by police during the investigation or enquiry which cannot be termed as weapon of offence. For example a Motor Car used in a case of smuggling by the accused may be returnable to the owner on 'Spurad Nama' till the disposal of the case but nowhere it was ever done by a Court other than the Magistrate who has passed the impugned order so as to handover the weapon of offence to an accused which was alleged to have been used in the commission of the crime. On the other hand it was argued by the learned counsel for the accused that gun being property of Muhammad Ashraf accused, he was entitled to the restoration of its possession to him, and so the impugned order was properly made by the trial Magistrate. The ownership of the weapon of offence allegedly used in the commission of the crime may be of the accused but his case is obviously distinguishable from any…