P L D 1977 Supreme Court 629 (PLP)

MUHAMMAD HALEEM, J.-This appeal i9 by special leave against the judgment dated 29-3-1971 of the former High Court of Sind and Baluchistan, Karachi by which Criminal Revision No. 21 of 1970 ways dismissed. The appellant is a private Limited Company which carries on business of Import, manufacture, indenting, sale and supply of pesticides, insecticides, sprayers, etc. Agha Qamar Husaain was its Director. A case was registered against him and four officers of the Agricultural Directorate, Hyderabed, namely, M. A. Memon, Iqbal Wajih, Yar Muhammad Shah and Ghulam Ali, on the :17th of September 1963, under sections 409, 420, 477-A, 120-B of the Pakistan Penal Code read with subsection (2) of section 5 of the Prevention of Corruption Act, 1947. It was alleged that Qamar Hussain in conspiracy with the officers of the Agricultural Directorate, obtained an undue pecuniary advantage to the tune of Re. 5,96,996 which was sanctioned by the Director of Agriculture, 'A. A. Memon, on 22-6-1963, for the purchase of pesticides for Karachi and Quetta Divisions which was not delivered and the amount was misappropriated. A challan was subsequently presented in the Court of Special Judge cum-Enquiry Officer, Anti-Corruption, Hyderabad in 1965. On 19-10.69 on the basis of the statement made by the Counsel appearing for Agha Qamar Hussain that the amount of Rs. 5,43,683 was lying with the appellants on the clear averment that the goods ordered against that amount were not delivered and that this amount could be recovered from the appellants, though he had no concern with the matter as he was no longer its Director, the learned Special Judge ordered that a query be made from the appellants. Accordingly, a notice was served and the Chief Accountant of the appellant-Company submitted an explanation in which it was admitted that the appellant had the balance amount of Rs. 5,43 683 witch remained unadjusted as the Department failed to take delivery of the pesticides without assigning any reason and that the appellants, therefore, suffered losses which merited compensation. The learned Special Judge on the admission made that the appellants had the money with them, by order dated 23-1-1970, directed that it being Government money should be deposited in the Court through a Bank Draft in the name of the Special Judge-cum-Enquiry Officer, Anti-Corruption, Hyderabad within a period of two weeks from the receipt of this order. As for the losses alleged to have been suffered on account of wrongful refusal of pesticides, t was held that it was a separate matter and that it could be decided by the Government if at call the appellants were entitled to any compensation. On 28-1-1970, the amount was attached by the Special Judge-cum-Enquiry Officer, Anti-Corruption, Hyderabad and a notice was sent for the deposit of the amount. The appellants filed Criminal Revision No. 21 of 1970 in the former High Court or Sind and Baluchistan in which the order dated 23-1-1970 was assailed. It was contended before the learned Single Judge that the only provision under which the amount could be directed to be deposited was under section 94, Cr. P. C. but that provision was not applicable as the deposit of the amount was neither necessary nor desirable for the purpose of trial and, therefore, the learned Special Judge acted contrary to law. The learned Single Judge for a different reason held that section 94, Cr. P. C. was not applicable. The learned Single Judge, however, accepted the contention of the learned Advocate-General that the amount could be ordered to be deposit-A by invoking the doctrine of implied powers as stated in Craies on Statute Law, 6th Edition, page 258 and Maxwell's Interpretation of Statute, 1962 Edition, page 350 and observed thus "From these principles, it, therefore, follows that the power to pass an order in respect of the property regarding which an offence has been committed includes ancillary power to call for the money so that the necessary order may be passed for its proper custody during the pendency of the proceeding and final order on the conclusion of the proceedings. No such order can be passed unless the property is before the Court." The learned Single Judge discounted the applicability ;;f sections 516-A and 517, Cr. P, C. as the property was not produced in Court. In conclusion he upheld the order. Leave to appeal was granted to consider as to whether the gigs Court could assume jurisdiction not vested in it by law by invoking the doctrine of implied powers. In the order of the learned Special Judge it is not explicitly stated as to under which section be was empowered to direct the deposit of the amount: The learned Single Judge held that the words document or thing occurring in section 94, Cr. P. C. did not include property in respect of which an offence was said to have been committed and, therefore, it did not empower the Special Judge to direct the deposit of the amount. This conclusion, however, does not flow from the language of section 94, Cr. P. C. which runs under 24(1) Whenever any Court, or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceedings under this code by or before such Court or officer, such Court may issue summon, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, or to produce it at the time and place stated in the summons or order. Provided that no such officer shall issue- any such order requiring the production of any document or other thing which is in the custody of a bank or bankers as defined in the Bankers' Books Evidence Act, 1891 (XVIII of 1841) and relates, or might disclose any information which relates to the bank account of any person except. (a) for the purpose of investigating an offence under sections 405, 406, 408, and 409 and section 421 to 424 (bolls inclusive) and sections 465 to 477-A (both inclusive) of the Pakistan Penal Code, with the prior permission in writing of a Sessions Judge ; and (b) in other cases, with the prior permission in waiting of the High Court. (2) . The words 'document or other thing' are general and seem to cover a document or thing the production and inspection of which are necessary desirable or will serve the ends of justice, both the judicial interpretation the words document or other thing seem to confine it apart trope the question of evidence to any property which forms the subject of the charge pending -before it or which has any connection with the offence which happens to be under investigation or enquiry. In the matter of the Complaint of H. H. The Nizam of Hyderabad v. A.. M. Jacob (I L R 19 Cal. 52) A. M. Jacob was accused of misappropriating Rs. 1,77,141-1-2 which was paid to him in the shape of 17 notes for Rs. 10,000 each and some small notes and cash. It having transpired from the cross-examination of a witness that A. M. Jacob still had in his possession 15 notes of Rs. 10,000 each, an application was made to the Magistrate for their production in Court under section 494, Cr. P. C. The Magistrate, however, declined to order their production in Court on some understanding given hint by the counsel for A. 't

4. Jacob that he intended to preserve them intact till the end of the trial. Later, five such notes were cashed at the Currency Office by Mr. Burder of Bombay and a fee an application was made before the Magistrate for an order under section 94, Cr. P. C. for the production of 15 notes or their proceeds. The Magistrate ordered for the production of ten notes and as regards the other five notes, the Magistrate declined to pass any order on the statement having been made before him by Mr. Burder that he had a lien over them. Five notes in possession of A. M. Jacob were produced in Court. The dispute, however, related to the five, notes still held by Mr. Burder and to the proceeds of the five rotes cashed by hire. It was contended in the.- High Court that the Magistrate had too power whatever to make any order for the production of any notes under section 94, Cr. P. C. as that section had reference only to the production of documents or things require' for purposes of evidence, and that it was never intended that it should he used fir the purpose of bringing property into Court for the purpose of it being subsequently disposed of by an order under section 517, Cr. P. C. Beverley J. repelled it and observed thus : Puting aside, however, the question of evidence, we are of opinion that every Court is enti1ed to have before it and to retain during the pendency of the proceedings, any property which forms the subject of a charge pending before it. 'the exception was in a case in which the money found in the possession of the accused could not be identified: The plea of lien was also repelled and it was held that the Magistrate was entitled and bound to compel the production of the notes as they were connected with the subject matter of the charge. In regard to the proceeds of the notes cashed, it was held that if these proceeds can reasonably be connected with the subject matter of the charge, the Magistrate has power to order their production in Court. Amir Ali, J. while concurring with the judgment of his learned colleague construed section 94, Cr. P. C. thus : "Having regard to the words of this section, it seems to me that a Magistrate has the power of calling upon any person to produce any document or 'thing', in that person's possession or power, which has any connection with the offence which happens to be under investigation or enquiry. Of course he cannot call for anything and everything from anybody and everybody. The thing called for must have some relation to, or connection with the subject mater of the investigation or enquiry, or throw some light on the proceeding, or supply some link in the chain of evidence. It may be that the thing called for m4y turn out to be wholly irrelevant of the enquiry ; but so long as it is considered to be necessary or desirable for the purposes of the enquiry, the power is there. Any other view of the scope and object of this action will paralyse the administration of criminal ,justice, and render many enquiries into alleged offences wholly infructuous, for once the subject-matter of an offence has changed hands or has changed shape the investigation must come to an end." In re: Lloyds Bank Ltd. A I R 1934 Bom. 74, the accused had cashed a forged cheque of Rs. 6000 from the Chartered tank arid received the proceeds in the form of six notes of Rs. i,000 each. Ho changed these notes into 60 notes of Rs. 100 each and on 29-5-1933 he opened a Saving Bank Account with Lloyds Bank Bombay with Rs. 5,000 and on 5th June, 1933 he withdrew a sum of Rs. 1,000 leaving a balance of Rs. 4,

000. Subsequently, the accused was prosecuted for offences under sections 380, 467, 4 11 and 420, Points. C. On 7-7-1933 an application was moved before the Court for an order that the Manager of Lloyds Bank should be directed to produce Rs. 4,000, the balance to the credit of the accused in his account with the Bank. On 10-7-1933 the Magistrate issued a letter of request to the Manager of the Bank to produce Rs. 4,

000. The Bank objected than there was no property of the accused capable of production but only a credit entry which contention did not find favour with the Magistrate who by an order passed on 28-7-1933 gave time to the Manager to deposit the amount till 2.3u p.m. the same day in Court failing which a search warrant was ordered to issue for the production of the amount. The money was not produced and the Magistrate issued the search warrant authorising the Police to search for the amount of Rs. 4,000 and produce the some forthwith before the Court. On the search warrant being shown to the Manager he directed the Accountant to produce Rs. 4,000: Exception was taken to the order of the Magistrate acs,: it was contended before the High Court that the noes received against the forged cheque not being identifiable therefore the Production of the notes pursuant to the search warrant was of no help. It was further urged that there was no money in the possession of the Beak which could be claimed as the property of the accused or the complainant or could be claimed as in any was" connected with the case before the Court. Broomfield J. distinguished the case of H.H. The Nizam of Hyderabad v. A.M. Jacob on the short ground that in that case the Court reached the conclusion that all the notes were connected with the subject matter of the charge and were part of the proceeds of the offence brat in the case under consideration there was no connection whatever between the offence and the particular moneys which were attached. Construing section 94, Cr, P. C. earned Judge observed : "Anything which may reasonably be regarded as forming part of the evidence in the case may of course be ordered to be produced, and that, I should say, is the primary object of there provisions. Some thing not necessary for evidentiary purposes may also come within them if there is any direct connection between the thing and the subject matter of the proceeding, for instance, if the thing forms part of the proceeds of an offence. There is nothing to prevent an order being made under section 94 for the production of a thing in anticipation of an order to be made under section 517 at the conclusion of the trial, and there may be cases in which it is very proper to make such an order. But before doing so. the Court obviously ought to consider the nature of the order which it will be in a position to make under section

517. It would be futile to order the production of n thing, not required of evidence for the purposes of the inquiry or trial itself if the only order which the Court can snake with respect to it will be that it should be returned to the person producing it." The ratio decidendi of the cases cited above is identical, namely, that there hays to be a direct connection between the document or thing and the subject matter of the proceedings for instance. if the document or thing forms part of the proceeds of an offence, Of course moneys which are not identifiable to cannot reasonably be connected are outside its ambit. This appears to us to be the correct statement of law. The learned Single Judge clearly erred in holding as he did, that section 94, Cr. P. C. was not applicable to property which ;vas the subject matter of the offence. In the present case there is no dispute as to the amount being in possession of the appellants which was admittedly Government money and advanced against the anticipated supply of pesticides which the appellants failed to supply. It is not a case where it can be said that the money is not, reasonably connected with the subject-matter of the Charge and, therefore, the learned Judge was empowered 'n direct its deposit under section 94, Cr. P. C. which provided a substratum for an order to be passed under section 517, Cr. P. C. at the end of the trial. In view of our conclusion it is not necessary to go into the question posed far consideration in the order granting leave. Accordingly the appeal is dismissed. S. A. H. Appeal dismissed.