P L D 1959 (W (PLP)

(4) One gold nose‑ring. (5) Five gold‑finger‑rings. (6) One gold necklace. It was also alleged that they had committed criminal breach of trust in respect of these ornaments. On the 3rd of August 1956, Ch. Ghulam Rasul, Magistrate Ist Class, charged the two respondents under section 406, P. P. C. for having committed criminal breach of trust in respect of (1) Two gold Ghari churies (Exh. P. I), Two gold kantas Exh. Pt 2, (3) One gold bangle Exh. P. 3, (4) One gold ring Exh. P. 4, (5) One gold necklace Exh. P. 5 and (6) One gold nath Exh. P.

6. Here it may be pointed out that out of the ornaments mentioned in the complaint, it was admitted by the complainant that he had received back ten gold bangles and one gold mundri. Out of the remaining ornaments, it transpired that Muhammad Anwar Shah respondent had pawned the ornaments Exhs. P. 1 to P. 6 with the National Bank of Pakistan, Shah Alam Market Branch, Lahore, on the 16th of May 1956. These ornaments were produced in the Court by Akram Khan (P. W. 2), Head Cashier of the Bank. It appears 4hat these ornaments were not retained in the Court, but were allowed to be taken away by the Head Cashier. The learned Magistrate found both the respondents guilty of an offence under section 406, P. P. C. and sentenced them to a fide of Rs. 500 each. He, however, did not pass any order as regards the disposal of these ornaments. On appeal, the con viction of both the respondents was upheld by the Additional Sessions Judge, Lahore, but the sentence was reduced to a fine of Rs. 250 each. The respondents came up in revision before this Court, and by my order dated the 17th of September 1957, 1 confirmed the conviction and sentence of Mst. Sumbal respon dent, but acquitted Muhammad Anwar Shah respondent on the ground that there was no proof that the ornaments had been entrusted to him. The petitioner then presented a petition before this Court under section 517 of the Code of Criminal Procedure, praying that the respondents may be directed to return his ornaments, and I ordered that he should make an application in the Court of the Magistrate. Accordingly, the petitioner filed an appli cation on the 22nd of October 1957, before Mr. Muhammad Hafizullah, Magistrate, who had by then succeeded Ch. Ghulam Rasul, Magistrate. By his order, dated the 26th of November 1957, the learned Magistrate declined to take any action in the matter, presumably on the ground that Muhammad Anwar Shah had been acquitted by this Court. Feeling aggrieved by this order the petitioner has now come up in revision before this Court.

2. The learned counsel for Muhammad Anwar Shah, respondent, maintained that in view of the acquittal of his client, he could not be directed to return the ornaments. I do not agree with this contention. Having regard to the provisions of section 517 of the Code of Criminal Procedure, I have no doubt in my mind that an order can be passed under this section for the delivery of the property to any person claiming to be entitled to possession thereof, irrespective of the fact that the inquiry or trial has resulted in the discharge, or acquittal of the accused provided that the other conditions specified in this section are fulfilled. The relevant portion of section 517, Criminal Procedure Code, is as follows :‑ "When an inquiry or a trial in any Criminal Court is con cluded, the Court may make such order as it thinks fit for the disposal by destruction, confiscation, or delivery to any person claiming to be entitled to possession thereof or otherwise of any property or document produced before it or in its custody or regarding which any offence appears to have been committed, or which has been used for the commission of any offence." The essential conditions for the application of this section are as follows (1) there must have been an inquiry or trial, (2) the same must have been concluded, and (3) the property in respect of which the order is to be made must be one‑(a) which has been produced before the Court or (b) which is in its custody or (c) regarding which any offence appears to have been committed or (d) which has been used for the commission of any offence. It will thus be seen that the result of the inquiry or trial is immaterial for the purpose of attracting the provisions of section 517, Criminal Procedure Code. On the conclusion of the inquiry or trial, the Court is empowered to pass necessary orders as it thinks fit in respect of the disposal of the property, provided that one of the sub‑conditions of condition No. 3 stated above is fulfilled. In the present case, all the three conditions laid down in the section have been fulfilled. There was a trial which has been con cluded. Ornaments Exhs. P. I to P. 6 were produced in Court and an offence under section 406, P. P. C. was proved to have been committed by Mst. Sumbal in respect of these ornaments. She is the mother‑in‑law of Muhammad Anwar Shah respondent, and, in all probability, she had passed on these ornaments to him. In my opinion, the acquittal of Muhammad Anwar Shah does not make any difference, and an order can certainly be passed for the delivery of the ornaments to the petitioner. If any authority were needed in support of this proposition, it can be found in the following cases :‑ Gulab Chand Umaji v. Emperor (A I R 1937 Sind 33) ; Rasul Khan v. Emperor (A I R 1927 Cal. 61), Rengaswami v. Emperor (A I R 1928 Rang. 113). As against these authorities the learned counsel for Muhammad Anwar Shah could not cite a single authority. I, therefore, hold that the learned Magistrate was wholly wrong in arriving at the conclusion that no order could be passed under section 517 of the Code of Criminal Procedure because of the acquittal of Muhammad Anwar Shah.

3. Learned counsel for Muhammad Anwar Shah also urged that as the petitioner had not taken any steps to protect his interest at the time when the ornaments were produced before the Court or immediately after the trial had concluded, therefore no order should be passed in his favour at this late stage. In my opinion, this contention is also without any substance in it. When these ornaments were produced before the trial Court by Akram Khan, Head Cashier, and were exhibited, they should have been retained in Court. I have seen the original file, but I have not been able to find any order of the Court by which the cashier had been allowed to take away those ornaments. It is, therefore, not known, when and under what circumstances the Head Cashier had been allowed to take away the ornaments. It may be that the petitioner all along remained under the impression that the ornaments were in the custody of the Court. After their conviction, the respondents had gone up. It appears and thereafter had come up in revision before this Court. As Muhammad Anwar Shah was claiming that these ornaments belonged to him, the Court could not have passed any order as regards the disposal of the ornaments till the matter had been finally decided. The revision petition filed by the respondents was decided by this Court on the 17th of September 1957, and there after the petitioner had applied for the return of the ornaments. As there is no limitation prescribed by law for filing such an application it could have been made within a reasonable time from the date on which the final decision had been given in the case. I am, therefore, of the opinion, that having regard to all the circumstances of the case, this objection raised on behalf of the respondents is not fatal, if the petitioner is otherwise entitled to seek his remedy.

4. Lastly, it was urged by the learned counsel for Muhammad Anwar Shah that as the ornaments were not in the custody of the Court, therefore no order could be passed under section 517 of the Code of Criminal Procedure. In support of his contention, the learned counsel relied on Lala Bansidhar v. Brij Basi Lal (A I R 1930 All. 35) where Sen, J. on the facts of that case had remarked that "when Ganga Prashad was moved for an order directing Brij Basi Lal to hand over the key to Bansidhar, neither the house nor the key was in the custody of the Court. The Court, therefore, had no power to make an order under section 517 Criminal Procedure Code in favour of Bansidhar". The facts of that case were as follows : Mr. Radha Kishan Pleader who was in occupation of a house died in 1908. One Govind Prashad who claimed to be the owner of the house let out the same to Mulua who continued in possession of the house between the years 1908 and 1920. Thereafter, Mulua disappeared after locking the house. Govind Prashad then applied to the Police, who put him into, possession of the house. In 1927, he sold the house to Bansidhar. A few days later; Brij Basi Lal son of Mr. Radha Kishan Pleader instituted a complaint charging Bansidhar and others with offences punishable under sections 143, 380 and 448 P. P. C. Before the filing of the complaint the police had taken possession of .the house and had locked it. During the pendency of the case, the key of the house was, by the orders of the Magistrate, delivered to Brij Basi Lal. Ulti mately, the accused were acquitted. Bansidhar then applied to the Magistrate for an order directing Brij Basi Lal to hand over the key to him. This application was refused. On an application for revision the Sessions Judge referred the case to the High Court. It was under these circumstances that the learned Judge had made the observations referred to above. In the latter portion of the judgment the learned Judge had further remarked that the key had never been produced before the Criminal Court at any stage of the inquiry or trial. As regards the house, the learned Judge had earlier remarked that the house was not a property regarding which an offence was committed within the meaning of section 517 Criminal Procedure Code. The facts of the aforesaid case are clearly distinguishable from the facts of the present case. In the cited case one of the essential con ditions for the application of section 517, Criminal Procedure Code had not been fulfilled inasmuch .as the key had not been produced in the Court, nor was it in the custody of the Court and no offence had been committed in respect of it: This ruling has, therefore, no application to the facts of the present case. I have therefore, no hesitation in overruling this objection.

5. For the aforesaid reasons, I accept this revision petition and direct the learned Magistrate to take steps to recover the ornaments Exhs. P. 1 to P. 6 referred to above from Muhammad Anwar Shah respondent and to restore them to the petitioner. It was conceded before me that Muhammad Anwar Shah had taken back the ornaments from the Bank. In case Muhammad Anwar Shah respondent does not produce the ornaments or it is found that he has disposed them of, the learned Magistrate shall make him pay to the petitioner, the value of the ornaments to be ascertained by him, and the same may be realised as fine under section 547 of the Code of Criminal Procedure. Mst. Sumbal has not been proved to be in possession of any of the ornaments and the charge had been framed only in respect of the ornaments Exhs. P. 1 to P.

6. Consequently, no further action need be taken against her. The record of the case may now be returned to the Magistrate concerned for compliance with these orders. The petitioner and Muhammad Anwar Shah have been directed to appear before the Magistrate on the 18th of December 1958. K. B. A Petition accepted.