P L D 1966 (W (PLP)

Orders under sections 517 and 520, Cr. P. C. do not settle any rights nor do they confer any title. These sections only empower the criminal Courts to dispose of the properties which are seized in the course of an enquiry or trial in a summary way and all that is necessary is that the Court should be satisfied that an offence appears to have been committed with respect to that property. The High Court was not satisfied in the instant case, that any offence was committed with respect to the property. In such a circumstance, there could be no initial justification for taking over the property and since it has now been held that no offence has been committed regarding this amount it should be restored to the persons from whom it had been taken. Sardara v. Boota P L D 1950 Lah. 97; K. Srinivasa Moorthi v. Narasimahalu Naidu; M. Savudi Karuppanan Ambalam v. Guruswarni Pillal and another A I R 1933 Mad. 434 (2); V. K. Vaiyapuri Chetty v. Sinniah Chetty A I R 1931 Mad. 17; Sattar Ali v. Afzal Mahonud A I R 1927 Cal. 532; Pushkar Singh v. State of Madhya Bharat and another A I R 1953 S C 508 ref. Sh. Muhammad Shafi for Petitioner. K. M. Pasha for A. G. for the State. S. Ghulam Abbas Jafri for Respondent

2. Dates of hearing : 6th and 7th April 1965. Ahmad Ali Siddiqi and four others weft tried by the learned Sessions Judge under sections 120-B, 379.468, 471, 420, 467 and 477 of the Pakistan Penal Code. The case against them was that they and one Amanat Hussain the approver entered into a criminal conspiracy to defraud the Sargodha Central Co-operative Bank (hereinafter to be called the Bank) and actually succeeded in so defrauding the Bank for a sum of Rs. 1,94,000.00. Ahmad Ali Siddiqi accused was arrested on the 19th of September 1956. On an information given by him on the 21st of September, 1956, the Police recovered currency notes of the value of Rs. 16,000.00 from Ahmad Bakhsh petitioner vide memo. Ex. P. W. 64/A. The learned Sessions Judge convicted Ahmad Ali Siddiqi under sections 120-8, 420, 467 and 477, P. P. C. He also relied on the recovery of this amount as an item of proof available against him. In paragraph 51 of his judgment he held that the sum of Rs. 16,000.00 had been deposited by Ahmad Ali Siddiqi accused with Ahmad Bakhsh petitioner and that it was tainted money and was part of a share of Ahmad Ali Siddiqi of the proceeds of the conspiracy. He, therefore, directed that this amount be paid to the Central Co-operative Bank, Sargodha.

2. The appeal of Ahmad Ali Siddiqi against his conviction was dismissed by the High Court on the 15th of March 1961, but no reliance was placed on the recovery from Ahmad Bakhsh Petitioner. A. R. Changez, J., while dealing with this recovery to paragraph 70 of his judgment observed: "There is no evidence on the record that Ahmad Ali Siddiqi accused had deposited this amount with Ahmad Bakhah. As such no 'reliance can be placed on the recovery of this amount from Ahmad Bakhsh P. W." The learned Judge, however, passed no order as to the disposal of this amount. The Supreme Court dismissed the appeal of Ahmad Ali Siddiqi on the 18th of December 1964, and while maintaining the order of conviction, they relied also on some of the evidence which was excluded from consideration by the High Court. However, the finding of the High Court, "that there was no evidence that Ahmad Ali Siddiqi had deposited the amount with Ahmad Bakhah" was not disturbed.

3. Ahmad Bakhsh petitioner applied to this Court on the 28th of December 1963 for the return of this amount alleging that this amount did not belong to Ahmad Ali Siddiqi and that he had paid the same amount to the Police under pressure. The amount has in the meantime been handed over to the Central Co-operative Bank, Sargodha.

4. Mr. K. M. Pasha on behalf of the State does not oppose the application but on himself of the Central Co-operative Bank, it was vehemently opposed. It was contended that the petition was not competent and the petitioner, if he was aggrieved by the order of the High Court which was silent as to tire disposal of the property, should have sought his remedy in the Supreme Court by way of Special Leave to Appeal. The High Court indeed has an ample power under section 423 (1) (d) of the Code of Criminal Procedure to pass appropriate orders for the disposal of the property produced at the trial. It was, there fore, competent for the High Court to have set aside the order passed by the Special Judge regarding the disposal of the amount in dispute, but no such order was passed. It would, however, not amount to an order adverse to the petitioner or a refusal to band over the property td him, but it will only mean that the High Court did not pass any order under section 423 (1) (d) of the Code of Criminal Procedure. There being no order against the petitioner, he could not seek his remedy in the Supreme Court. In this very case, one Mst. Sardar Begum submitted an application to the Supreme Court for an order that a sum of Rs. 21,000.00 which was alleged to have been recovered from her on the pointing out of one Muhammad Nawaz accused, be paid to her. The Supreme Court dismissed the application by observing :- "It is only if the Sessions Judge and the High Court decide the question of the disposal of the amount recovered that this Court should be approached for grant of special leave to appeal." The petitioner, therefore, could not apply to the Supreme Court for special leave to appeal, and if he had taken any such step, his petition, like the petition of Mst. Sardar Begum, would have been dismissed as premature. Unless the High Court modifies, alters or annuls an order passed under section 517, Cr. P. C. a person cannot seek his remedy in respect of that from the Supreme Court by seeking leave to file an appeal. There can be no appeal unless there is an order against which it may be directed.

5. It was next contended that a petition under section 520, Cr. P. C. could not be entertained and no order thereon could be legally passed after the appeal had been disposed of. The precise argument was that the High Court only when it was seized of an appeal under section 423 (1) (d) or a revision under section 439, Criminal Procedure Code, could pass an order under section 520, Cr. P. C., and it had no jurisdiction to take any action under this section after the disposal of the appeal. I do not agree with this contention. If it were so, the provisions of section 520, Cr. P. C,, would be rendered completely redundant. The Court dealing with an appeal or a revision has powers under the Code of Criminal Procedure independent of the provisions of section 520, Cr. P. C., to pass any order for the disposal or delivery of any property about which an order may have been passed under section 517, Cr. P. C. The Court of appeal is competent under section 4231 (1) (d), Cr. P. C. to make any amendment or any consequential or incidental order that may be just or proper, and by virtue o fl the powers so conferred can, therefore, vary an order passed under section 517, Cr. P.C. In exercise a of its revisional jurisdiction under section 439 (1) of the Code, the High Court can, exercise the same powers which are conferred on a Court of appeal. The High Court, therefore, while hearing an appeal or revision can, without invoking the provisions of section 520, Cr. P. C. set aside an order passed under section 517, Cr. P. C., and substitute in lieu thereof another order of its own. If an action under section 520, Cr. P. C. was competent only in a pending appeal or revision, there was no need to provide for it, because the appellate or revisional Court can pass the same orders in spite of that provision. On this construction of sec tion 520, Cr. P. C., it would be a surplusage and thus a redundant provision. It in .not conceivable that the Legislature in its wisdom should have made a provision without a purpose. Obviously it is intended to apply to cases other than those where an action can be taken in appeal or a revision. The appellate Court, therefore when seized of an appeal can modify an order under section 423 (1) (d), Cr. P. C., and in other cases it is competent to assume jurisdiction under section 520, Cr. P. C. against any proceedings taken under section 517, Cr. P. C. In Sardar v. Boota (P L D 1950 Lah. 97) the accused was acquitted by the trial Court for an offence under section 379, Cr. P. C. while the bullocks stolen in the case were ordered by the Magistrate to be given to the complainant. The learned Sessions Judge in proceed ings under section 520, Cr. P. C. reversed the order and directed that the bullocks should be returned to the accused. The complainant challenged the order of the Sessions Judge in revision and contended that section 520, Cr. P. C. merely gave a right to a Court, which was seized of an appeal or revision petition in the case, to pass such order. The contention was found to be devoid of force.

6. Relying on Sardar v. Boota, however, it was argued that even if a person could apply to the Court of appeal or revision under section 520, Cr. P. C., he could not do so once an appeal had been preferred in the case. The point raised is that if no appeal is preferred, an application under section 520, Cr. P. C. may be made, but once an appeal is preferred against the order of the trial Court, an independent proceeding under section 520, Cr. P. C. is not competent. The contention is not tenable. Powers, to be exercised by an appellate Court under section 423 (1) (d) and those, which can be exercised by the Court of appeal under section 520, Cr. P. C. are independent of each other. The fact that an appeal or revision is preferred against an order of the trial Court does not debar a person to seek remedy under section 520, Cr. P. C. The words "any Court of appeal, confirmation, reference or revision" refer to a Court to which appeals, references, confirmation or revision, ordinarily, lie against the judgment ands, decision of the trial Court and not a Court to which an appeal etc., has, in fact been preferred. Ordinarily, there may appear no difference between a Court of appeal and an appellate Court and these terms are used at times to convey the same meanings. In the context of section 520, C. P. C., however it seems that mil appellate Court is a Court which is seized of an appeal and Court of appeal means only to which appeals ordinarily lie from' the Court which passed the order. Thus even if the appeal has been disposed of, the power still vests in a Court of appeal to entertain an application under section 520, Cr. P. C. In Ghulam Akbar v. The State (P L D 1958 Lah. 212) the High Court set aside in revision the petitioner's conviction under section 411, P. P. C. and held that the property belonged to the petitioner. The property in the meantime had been transferred to the complainant. There was no order passed in the revision as to the disposal or the delivery of the stolen property. The accused -petitioner, therefore, applied under section 520, Cr. P. C. an it was hold that the petition was competent. The Court of appeal or revision, therefore, can entertain an application under section 520, Cr. P. C., at any stage either before or during the pendency or after the disposal of appeal or a revision and can also take action under that section. The powers of the High Court or any other Court as a Court of appeal or revision, in respect of an order of disposal of property passed by a subordinate Court under section 517, Cr. P. C., do not, therefore, depend for their exercise on the availability or pendency of an appeal or revision in the original case but it is an independent an substantive jurisdiction by which it will be open not only to modify, cancel or alter the order but make such other orders for the proper disposal of the property as the facts of the case d may require. This was the view taken in U Po Hla v. Ko Po Sheia (A I R 1929 Rang. 97) where it was held. that any Court of appeal, confirmation, reference or revision may, under section 520, Criminal P. C., revise any order passed under Ss. 517, 518 or S. 519 by a Court subordinate to it and that irrespective of the fact whether an appeal or application for confirmation or reference or revision might be made in respect of what may be called the main charge before it."

7. It was also argued that the application was barred by limitation and the petitioner should have made this application within the time prescribed for filing an appeal. The learned Sessions Judge had passed the order on the 12th of October 1959 and this application was made on the 28th of November 1963. The proceed ing under section 520, Cr. P. C., is not an appeal or in the nature of an appeal. This is a proceeding of a special nature. There is no period of limitation prescribed for making this application: The application, therefore is not time-barred. In Kanshi Ram v The Crown (A I R 1924 Lah. 75) it was held that no period of limitation is prescribed for an application for restoration of property under section 517, Cr. P. C. This was the view taken also in K. Srinivasa Moorthi v. Narasimhalu Naidu (A I R 1927 Mad. 797) and in Kanshi Ram v. The Crown.

8. Mr. Jafari then argued that since the amount has actually been returned to the complainant-bank, this Court has no power to deal with the matter and cannot order restitution. His argument is that when the order has been carried out, it cannot be Suspended and unless it is so suspended, the Court under section 528, cannot modify, alter or annul an order passed under section 517 and relies on the words in section 520 of the Act "Any Court of appeal, may direct any order under section 517 to be stayed pending consideration by the former Court." I have not been persuaded to accept this contention or to hold that the suspension of the order is a necessary preliminary to the exercise by the Court of appeal of the powers conferred by the concluding words of the section, "and may modify, alter or annul such order and make any further orders that may be just". The words of section 520 are very wide and confer extensive powers on this Court not only to modify, alter or annul any order passed by d Subordinate Court, but the High Court can pass any further orders that it may consider just. The fact that the order under section 517 has been carried out by the Magistrate cannot preclude this Court from exercising the powers conferred upon it by section 520, nor is it necessary that the of the Magistrate should have been stayed before this Court should exercise it jurisdiction in either setting aside the order or bussing such further order as it thought fit. The precise question came up for consideration in Ghulam Akbar v. The State (P L D 1958 Lah. 212) and it was held by Changez, J., "The words of section 520 of the Code of Criminal Procedure, are wide enough to cover such cases and the Courts are empowered to order restoration of the property to the rightful person even if the property has been delivered by a Subordinate Court to some other party. It was also held in Kanshi Ram v. The Crown that "The words `and make an order that may be just' in section 520 are obviously intended to cover cases of this nature and to enable superior Courts to pass orders where property has been erroneously disposed of under section 517, Criminal Procedure Code". Similar view was taken in Badrul Hasan v. Mst. Chamela (A I R 1918 Pat. 304), Nagendra Nath v. Emperor (A I R 1934 Cal 454), Shamsundar v. Teja Singh (A I R 1935 Pesh. 98), Kirpal Singh v. Labhu ((1895) 30 P R.) and Bisweswar Singh v. Bholanath (15 Cr. L J 222). It is clearly just that when a Subordinate Court has made over property to a person who is not entitled to its possession, the superior Court should remedy the wrong by restoring the property to the person entitled to its possession. Doubtless, the dispute between the parties cannot be settled by the criminal Courts and the proper forum for their adjudication is a civil Court. But, even so, it is unjust to the petitioner that he should be deprived of the possession and should be placed in such a position that he must himself institute the civil proceedings or else suffer the loss of his money.

9. As to the merits of the case, the learned Sessions Judge had held that the-amount of Rs. 16,000.00 was left by Ahmad Ali Siddiqi with the present Petitioner and it was a part of the amount of which the Bank had been defrauded. It- was on this finding that he directed under section 517, Cr. P. C., that the amount be delivered to the Bank. Mr. Justice A. R. Changez in the appeal did not upheld those findings and, on the contrary, held that it was not proved by the evidence on the record that Ahmad Ali Siddiqi had deposited this amount with Ahmad Bakhsh P. W. The Supreme Court has not disturbed this finding. Under the circumstances, it is not an amount regarding which the offences in question have been committed. The amount was in the custody of the Court. It was ordered to be returned to the Bank on the basis of the finding that it was the property regarding which an offence had been committed. Since the finding has been set aside, there remains no justification for maintaining the order passed in favour of the Bank. The learned counsel; however, argued that I should examine the entire evidence on the question for taking a decision under section 520, Cr. P. C., and should also take into consideration the recovery memo. Ex. P. W. 64/A, wherein the petitioner admitted before the Police that this amount was left with him by Ahmad Ali Siddiqi. He also wished that further evidence be recorded whereby he wanted to prove the statement of the petitioner under section 161, Cr. P. C. It would have been necessary for me to do so if were to record my findings as to the title in the amount in dispute. Orders under sections 517 and 520, Cr. P. C. do not settle any rights nor do they confer any title. These sections only empower the criminal Courts to dispose of the properties which are seized in the course of an enquiry or trial in a summary way and all that is necessary is that the Court should be satisfied that an offence appears to have been committed with respect to that property. The High Court was not satisfied that any offence was committed with respect to the property. In such a circumstance, there could be no initial' justification for taking over the property and since it has now been held that no offence has been committed regarding this amount it should be restored to the persons from whom it had been taken. In Sardara v. Boota S. A. Rahman, J., observed, "the ordinary principle is that if the property is not proved to be the subject-matter of an offence, it should be restored to the person from whom it had been taken." In case re: K. Srinivasa Moorthi v. Narasimahalu Naidu it was held, "where the title to seize pro perty is doubtful, it should be returned to the person from whom it was seized, unless there are special circumstances which would render such a course unjustifiable". No such circumstances have been shown in this case except that the respondent can, by refer ring to the statement recorded during the course of investigation which was inadmissible in a criminal trial, can prove that the property belonged to the Bank. This circumstance does not justify an order contrary to the accepted principle. It is open to the respondent to establish its right in a civil Court. Again in M. Savudi Karuppanun Ambalam v. Guruswami Pillai and another (A I R 1933 Mad. 434) it was held that, "when the property is not proved to be the subject-matter of an offence, it should be restored to him and that the question whether he or other person was entitled to the same should not be decided by the criminal Court but should be left to the Civil Court." Same view was taken in A. N. Vaiyapuri Chetty v. Sinniah Chetty (A I R 1931 Mad. 17) and Sattar Ali v. Afzal Mahomed (A I R 1927 Cal. 532). In Pushkar Singh v. State of Madhya Bharat and another (A 14 1953 5 C 508) a foreign judgment of the Supreme Court of India the facts of the cast were that the charge against the accused was that certain money found in his possession had been stolen from the complainant. The Magistrate disbelieved the prosecution evidence and held that this amount did not pertain to the theft committed in the house of the complainant. He ordered that the money taken from him should be returned to him. The High Court, on an application of the complainant against the order directing payment of the money to the accused directed that the same be given to the complainant and not to the accused. The Supreme Court accepted the appeal and observed, "it seems to us that this order cannot be sustained in view of the clear finding of fact given by the Magistrate to the effect that no offence was committed in respect of the amount in dispute. "They further observed that unless it was found that an offence was committed in respect of this sum, there was no jurisdiction in the High Court to order the payment of this amount to the complainant.

10. Under the circumstances, when the amount was admittedly recovered from the petitioner and no offence has been committed in respect thereof, it has to be delivered to him. The Central Co-operative Bank, Sargodha, should pay this amount to the petitioner. S. Q. Petition accepted.