P L D 1969 Lahore 1032 (PLP)

Cr. Revisions Nos. 1079 and 1080 of 1968 are connected matters having been filed respectively by Taj Muhammad and his son Muhammad Anwar. They are directed against two stereotyped orders of Rana Muhammad Sarwar Khan Magis trate First Class, Lahore, dated 11th of November 1968, dismissing the application of Taj Muhammad seeking custody of a car and that of Muhammad Anwar seeking custody of a scooter, which were both seized by the police during investigation in a criminal case. The petitioners claim to be the owners of the two vehicles.

2. Two applications under section 561‑A, Cr. P. C. have also been received today on behalf of the National and Grindlays Bank Ltd., Lahore, to be impleaded as party to the aforesaid Criminal Revisions. The Bank has also prayed for the custody of Vic vehicles till the conclusion of the trial. Finding no objection to the grant of these applications, I have allowed them. All the four cases, being connected matters, are being disposed of by this single judgment.

3. The short background of the petitions is that a case under sections 406/420/468/471, P. P. C. was registered at Police Station Old Anarkali, Lahore, on a complaint lodged by D. E. A. Virley, Manager of the N. G. B., The Mall Lahore, on the 13th of September 1968. The allegations pertained to the embezzlement of a huge amount of Rs. 1,08,

100. The offence was allegedly committed by some persons in collusion with some members of the Bank staff as indicated by the modus operandi resorted to in the case which was that fictitious debits were shown in some internal accounts of the Bank and the corresponding amounts were deposited to the credit of a customer, named Riaz Ahmad, whose account had been allegedly opened with the Bank in a mala fide manner. In the course of investiga tion the police took into possession Car No. LED 4480 Moscovitch 1964 model and a Scooter No. MY‑3661, respectively, claimed by Tai Muhammad and Muhammad Anwar petitioners, the latter being the brother‑in‑law of Riaz Ahmad aforesaid. Both Muhammad Anwar and Riaz Ahmad are stated to be on bail while investigation is still in progress.

4. The petitioners applied to Rana Muhammad Sarwar Khan M. I. C. Lahore for an entrustment of the car and the scooter on superdari claiming to be the owners thereof. The learned Magistrate dismissed both the applications vide the impugned order dated 11‑11‑1968, giving rise to the present petitions.

5. It has been asserted before me on behalf of the petitioners that the car and the scooter were recovered from their possessions. The claim to their ownership is also reiterated. In support of this claim, attention has been drawn to the Regis tration Book now in. the custody of the Investigating Officer, who is also present in Court, wherein the car, which is a second hand vehicle, was registered in the first instance in the name of one Fazal Hussain on 28‑3‑1966. The Registration book also contains two undated applications purported to have been addressed by Fazal Hussain aforesaid to the Registering Authority Stating therein that he had transferred the car in favour of Manzoor Ahmad as mentioned in the first application in favour of Taj Muhammad as stated in the subsequent application. It may be observed at this stage that this Fazal Hussain has not yet been examined by the Investigating Officer.

6. As regards the claim to the ownership of the scooter, the Registration Book taken into possession by the Investigating Officer shows that it was registered in the name of one Muhammad Yousaf, Naib‑Tehsildar Pakpattan, in the first instance on 24‑8‑68; but was later transferred by him in the name of Muhammad Anwar petitioner on 5‑10‑

68. It may be pertinent to observe at this stage that Muhammad Anwar peti tioner who has been arrested in this case worked at the relevant time as a registration clerk in Tehsil Pakpattan. Muhammad Yousaf Naib Tehsildar has been examined by the police and is reported to have stated that the scooter had been purchased on his behalf by Muhammad Anwar who had made the payment and since he had no money, he returned the scooter to Muhammad Anwar.

7. An argument sought to be raised by the learned counsel for the petitioner that since the car and the scooter in question were neither properties regarding which an offence had been committed nor were they recovered as stolen properties, the learned trial Magistrate should have handed over their custody to the petitioners who were the owners thereof or at any rate persons entitled to their possession.

8. On the other hand, ft has been contended by the learned Additional Advocate‑General that the documents pertaining to the ownership of the car and the scooter did not in the least indicate that they belonged to the petitioners and further that according to the police record supported by an oral statement of the Investigating Officer present in Court, the car had not been recovered from the custody of Taj Muhammad petitioner at Pakpattan but from that of one Muhammad Munir of Lahore. On the legal plane it is argued that definition of property as given in the Explanation to section 517, Cr. P. C. would be equally applicable to all properties whether produced before a criminal Court during inquiry or trial or seized by any Police Officer under section 51 regarding which (i) an offence appears to have been committed (ii) or which has been used for the commission of any offence (iii) or which is found under circumstances which amount to suspicion of the commission of any offence, or is alleged or suspected to have been stolen or found under circumstances creating suspicion of the commis sion of any offence. It is further argued that even otherwise section 523, Cr. P. C. gives vast discretionary powers to the Magistrate to "make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof or if such person cannot be ascertained, respecting the custody or production of such property." It is next contended that since the question of entitlement to possession has yet to be determined, the discretion of the learned Magistrate in refusing to deliver the custody of the property to the petitioners, particularly in view of the back ground given earlier, should not be interfered with by this Court in exercise of its revisional jurisdiction.

9. Before proceeding to consider the contentions raised by the learned counsel for the parties, the first question to be determined is as to under what provisions of law were the car and the scooter in question taken into possession by the police. The first relevant provision under the scheme of the Cr. P. C. empowering a police officer to seize articles is contained in section 51 ibid, which deals with the case of a person arrested by a police officer or a private person under a warrant and he cannot be legally admitted to bail or is unable to furnish a bail. The police officer may search his person and place in safe custody all articles found upon him other than his wearing apparels. The mode of disposal of such property has been prescribed in section 523, Criminal P. C. to which I shall refer a little later. It is, however, clear that the car and the scooter in question were not seized by the police officer in the circums tances mentioned in section

51. The next relevant provision in the serial order is contained in section 53 which refers to the seizure of offensive weapon which a person arrested is found to have with him at the time of his arrest, which obviously is not relevant for our purposes, section 54 ibid catalogues various circumstances under which a person can be arrested by a police officer without warrant and part 'fourthly' reads as follows:‑ 54 (1). Any police‑officer may without an order from a Magistrate and without a warrant, arrest‑ first .. secondly .. thirdly .. fourthly, any person in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing. This authorization is further reiterated in section 550 of the Cr. P. C. "S.

550. Any police‑officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence. Such police‑officer, if subordinate to the officer incharge of a police‑station, shall forthwith report the sizure to that officer." The police‑officer can also seize all properties in execution of a search warrant issued under sections 97 to 99‑A, Cr. P. C. Under section 99 ibid the police‑officer is required to send the seized property at once to the Court issuing the warrant. Under section 155, Cr. P. C. the officer incharge of a police station has the power of making a search in any place for the seizure of anything believed to be necessary for the purpose of the investi gation, as held in H. N. Rishbud and another v. State of Delhi (A I R 1955 S C 196). It was observed by their Lordships:‑ "Thus investigation primarily consists in the ascertaining of the facts and circumstances of the case. By definition, it includes all the proceedings under the Code for the collection of evidence conducted by a police officer." It was observed by Desai J. in M/s. Purshottam Dad Banarsidas v. State (A I R 1952 All. 470) as follows:- " .Section 165 empowers an investigating police‑officer to search any place for anything necessary for the purpose of the investigation into any offence and seize the thing if found. If he submits a charge‑sheet against the accused, he must send to she Court any weapon or other articles which it may be necessary to produce before it. It will thus be seen that the property may be seized by the police under various circumstances and that the property seized in some of those circumstances must be sent by them to the Court, while the property seized in other circumstances would remain with them. Property seized under‑section 51, does not require to be sent to the Court. If after investigation a final report is submitted to the Court, the property seized under section 165 is not required to be sent to Court." I have already referred too the other mode of the seizure of property by a police‑officer as mentioned in section 550, Cr. P. C.

10. Having dealt with the various circumstances under which a police‑officer can seize any property, I now come to the relevant provisions concerning the disposal of such property which are contained in sections ‑516‑A to 524, Cr. P. C. Section 516‑A is first of the series and reads as follows:‑ "S. 516‑A. When any property regarding which any offence appears to have been committed, or which appears to have been used for the commission of any offence, is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy or natural decay, may, after recording such evidence as it thinks necessary order it to be sold or otherwise disposed of." Obviously this provision could be invoked only when the seized property is produced before the Court during any inquiry or trial which stage admittedly has not yet reached in the instant case and as such this provision would be irrelevant for the purposes of the present petitions. The provision con tained in the next section 517, Cr. P. C. would come into play only when the inquiry or the trial as the case may be is concluded. The section gives vast discretionary power to the Court for the disposal of the property or its delivery to the person claiming to be entitled to possession thereof. The explanation added towards the end is however very significant and reads as follows:‑ "S. 517, Expl nation: In this section the term `property' includes ins the case of property regarding which an offence appears to have been committed, not only such property as has been originally in .the possession or under the control of any party, but also any property into or for which the same may have been converted or exchanged, and anything acquired by such conversion or exchange, whether immediately or otherwise." It would be pertinent to point out that this wider explanation of the term "property" also covering properties converted into or obtained in exchange for the property regarding which an offence appears to have been committed is only confined to this section as indicated by the opening words of the explanation. The section would however come into play after the conclusion of the inquiry or the trial, by which time the Court would cer tainly be in a position to give a finding as to whether the property in question is the original property regarding which an offence appeared to have been committed or is the one into or for which it has been converted or exchanged. Obviously, therefore, this definition of the expression `property' is not applicable to properties which might only have been alleged to have been obtained in exchange for stolen property and might have been seized by the police during investigation as appears to be the position in the instant case. The expression 'stolen property' is defined In section 410 of the P. P. C. in the following terms:‑ "S.

410. Property, the possession whereof has been trans ferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed, is desig nated as `stolen property', whether the transfer has been made or the misappropriation or breach of trust has been committed, within or without Pakistan. But, if such property subsequently comes into the possession of a person legally entitled to the possession thereof, it then ceases to be stolen property." A comparison of the definition of `property' as contained in the explanation towards the end of section 517 of the Cr. P. C. and of the definition of `stolen property' as contained in section 410 of the P. P. C. would clearly indicate that at least in some respects the former is much wider in scope than the latter in spite of its limited application and only comes into play on the conclusion of an inquiry or trial. Another inference inevi tably flowing from the explanation is that the police would not only be competent to seize in the course of investigation A of an offence the property regarding which an offence could have been committed but also the property which it has either been converted into or exchange for and also "anything acquired by such conversion or exchange whether immediately or otherwise." The case of the investigating officer obviously is that the car and the scooter in question were obtained by the accused persons in exchange for the amount which had been allegedly misappro priated by the accused. While, therefore, the police could legitimately seize these properties on the basis of the above allegations, an order regarding their delivery to any person claim ing ;o be entitled to possession thereof could be made in this regard under section 517, Cr. P. C. only on the conclusion of inquiry or trial. The wisdom of this provision is not far to seek. 7 he Legislature had obviously taken due care to safeguard 3 the legitimate rights of owners of properties to their custody who should not be denied the same during investigation, inquiry or trial merely on the basis of allegations which could possibly turn out to be false. Therefore, the object of confining the definition of "property" to section 517 was obviously to safeguard against the denial of custody to owners of properties during investigation, inquiry or trial merely on allegations of conversion or exchange when the Court is not in a position to uphold or negative the allegations.

11. The next relevant provision is contained in section 523, Cr. P. C. which reads as follows:‑‑ "S. 523. (1) The seizure by any police‑officer of property taken under section 51, or alleged or suspected to have been stolen, or found under circumstances which create suspicion of the commission of any offence, shall be forthwith reported to a Magistrate, who shall make such order as he thinks fit respecting the disposal of such property or the delivery of such property to such person entitled to the possession thereof, or, if such person cannot ‑be ascertained,‑ ‑respecting the custody and production of such property." As stated earlier, the car and the scooter were not seized under section 51 nor were they alleged or suspected to have been stolen. This petition was frankly conceded by the learned counsel for the Bank. Likewise, they were not found under circumstan ces which created the suspicion of commission any offence. A typical example of the latter position would be where police officer on patrol or nakabandi duty happens to come across at mid‑night persons taking away some cattle. Such circumstances would obviously create suspicion of the commission of an offence. It is clear, therefore, that none of the relevant conditions of seizure mentioned in section 523, Cr. P. C. are applicable to the instant case in which the car and the scooter had been taken into possession allegedly as properties obtained in exchange for the amount criminally misappropriated furnishing relevant evidence in respect of the offence.

12. The net result of the discussion, therefore, is that where the police was certainly within its rights to seize the car and the scooter in the course of its investigation as articles furnishing evidence of offence which could be disposed of or delivered only after the trial or inquiry under section 517 and for C whose temporary custody no provision is otherwise available there is no escape from the position that the temporary custody has to be made over to the persons from whose possession the two article were recovered. Consequently, I allow the two petitions and direct that the custody of the car and the scooter should be delivered to Taj Muhammad and Muhammad Anwar petitioners respec tively during the pendency of the trial on furnishing suitable security for their production if and when required to do so by the trial Magistrate. Consequently, the two petitions are, allowed. The petitions paled by the Bank are dismissed. A. E. Petitions allowed.