P L D 1975 Lahore 45 (PLP)

This is a revision petition directed against the order of Ch. Muhammad Saeed Akhtar, Additional Sessions Judge, Lahore, dated 6th of December 1973, by which he set aside the order of Sufi Ghulam Mustafa, Magistrate First Class, Kasur, dated 1st of October 1973, directing that the buffalo which had been taken possession of by the police from Jalal Khan petitioner, and in relation to which a case under section 411, P. P. C. was registered against him, be delivered back to him.

2. The buffalo in question was taken into custody by the police from Jalal Khan on the suspicion that it was stolen property. When called by the police, Khushi Muhammad respondent identified it as belonging to him. Thereafter, F. I. R. - No. 11 dated 18th of April, 1970, was drawn up under sections 379/411, P. P. C. against Jalal Khan. On the application of the Investigating Officer, the temporary custody of the buffalo was handed over to Khushi Muhammad by order dated 18th of April 1970.

3. The case lingered on for two years and nine months but the prose cution during all this time failed to produce any evidence to bring home the offence to the accused. The learned Magistrate, therefore, passed an order discharging the accused on 31st of January 1973. He did not say anything about the custody of the buffalo.

4. On 30th of August 1973, Jalal Khan petitioner filed an application, before the successor of the Magistrate, who had ordered his discharge, for delivery of the buffalo to him. The Magistrate passed an order on 1st of October 1973, directing that the buffalo be delivered to Mal Khan. He further directed that Khushi Muhammad, if he had any claim to the buffalo, may prove his title before a civil Court. An appeal was filed against this order which was decided by Mr. Muhammad Saeed Akhtar, Additional Sessions Judge in the terms stated above.

5. Two points were raised before the learned Additional Sessions judge .- (i) That no appeal was competent against such an order as the reference to a Court of appeal and revision in section 520, Cr. P. C. is reference to the Court which is seized of the substantive matter, and (ii) that an order regarding custody of the stolen property should have been passed contemporaneously and no application, in law, lay to the successor of the Magistrate after the termination of the inquiry or trial. The learned Additional Sessions Judge held that the words "the Court of appeal and revision" in section 520, Cr. P. C. had been used in a wider sense and it was not necessary that an order under section 520, Cr. P. C. should be passed in respect of the stolen property only by a Court which was hearing an appeal or revision against conviction. He, therefore, held that an appeal was competent. The second argument, however, prevailed with the learned Additional Sessions Judge. He observed that the main order of discharge and the order under section 517, Cr. P. C. should have been passed simultaneously on the conclusion of the proceedings. He held that the Court had no jurisdiction to pass any order at a subsequent stage regarding delivery of the stolen property.

6. Mr. Azim-ud-Din, the learned counsel for the petitioner submits that no appeal was competent from the order of the learned Magistrate who restored the buffalo to the petitioner. He in this connection cited Ghulam Ali v. Emperor A I R 1945 Lah.

47. This was actually a case in which an order had been passed by a Magistrate under section 523, Cr. P. C. and not under section 517, Cr. P. C. Of course, some of the observations of the learned Judge, who decided the cited case, do indicate that the Sessions Judge can substitute his own order for that passed by the trial Court "if the substantive case comes before him as a Court of appeal or a Court of revision." This judgment came in for discussion in Sardara v. Boota P L D 1950 Lah, 97 S. A. Rahman, J. observed that the observation of the learned Judge who decided the case of Ghulam Ali, referred to above, were in the nature of obiter dicta as the order passed in that case was one under section 523, Cr. P. C. I may say that there is a long line of decisions against the argument advanced by the learned counsel for the petitioner. The words "Court of appeal or revision" occurring in section 520, Cr. P. C. are not necessarily limited to a Court before which an appeal or revision is pending. Section 520, Cr. P. C. gives supervisory powers to the Courts of appeal or revision to correct the errors of Courts below in respect of orders passed with regard to stolen property, indepen dently of the fact whether or not an appeal or revision in the substantive case is .pending. An appeal as such is not contemplated by section 520, Cr. P. C. but the section does give a right to a person aggrieved by an order under section 517, Cr. P. C. to approach a Court of appeal or revision by way of an application to seek relief. The finding of the learned Sessions Judge that an appeal lies may not be strictly in conformity with law but he was right in observing that the words "Court of appeal or revision" were not necessarily limited to a Court which was dealing with the substantive case. Reference in this connection may be made to Ghulam Akbar v. The State P L D 1958 Lah. 212, Ahmad Bakhsh v. The State and another P L D 1966 Lah. 918 and The State v. Darshan Lal and another P L D 1972 Kar. 548.

7. The finding of the learned Additional Sessions Judge that the order of disposal of property has to be passed contemporaneously with the announcement of the orders in the original case runs counter to the weight of authority. It was held by the Lahore High Court in Kanshi Ram v. The Crown A I R 1924 Lah. 75 that no period of limitation was prescribed for an application for restoration of property under section 517, Cr. P. C. and such an application could be made within a reasonable time from the date on which an' accused person is acquitted of the crime with which he is charged. The learned Judge observed that the words "and make any further orders that may be just" is section 520, Cr. P. C. are obviously intended to cover cases of this nature and to enable superior Courts to pass proper orders in cases where property has erroneously been disposed of. In this case, the applica tion for restoration of property had been made about six months after the final decision of the case. In Kishan Chand v Nanak Chane A I R 1926 Lah 9, it was observed by Harrison, J. that an order under section 517, Cr. P. C. could be passed after the passing of the judgment within a reasonable time. The Patna High Court took the same view. In Deopujan Mahto v. Kukur Ahir A I R 1940 Pat. 198 it was observed that section 517, Cr. P. C. cannot be read as requiring that the order for disposal of property must be passed simultaneously with the judgment of the case. The learned Judge who decided the case was of the -opinion that section 517, gives jurisdiction to the Court to pass necessary orders for the disposal of property either at the time of the conclusion of the trial or at a later date: It was further observed that section 517, cast a duty on the Court to make some order regarding the disposal of the property which was in its custody and this duty continued until the property was disposed of in some way or other, either by destruction or by passing out of the hands of the Court. Dealing with the question as to how long after the judgments an order relating to the property may be passed, the learned Judge said :- " I am prepared to say that the passing of such orders should not be unreasonably postponed, but not that the lapse of time relieves the Court of the duty and the corresponding jurisdiction to pass orders for the disposal of property, which is in the Court's custody or under its control." In Ahmad Bakhsh v. The State it was held that there is no period of limitation prescribed for making an application under sections 517 and 520, and the exercise of powers by an appellate or a revisional Court under these -sections does not, therefore, depend on the availability or pendency of an appeal or revision in the original case but it is an independent and substan tive jurisdiction by which it is open to the Court of the above description 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 may require. In The State v. Darshan Lal referred to above, the appellate Court, when moved under section 520, Cr. P. C. for an order in respect of the delivery of the property which was the subject-matter of the offence, refused to pass orders observing that the matter could not be considered after the decision in the main appeal. The High Court held that the refusal to pass an order after the decision of the appeal was not legally sustainable.

8. Mr. Muhammad Saeed, the learned counsel for the respondent, submitted that the learned Magistrate had not entered into an enquiry with regard to the claim of the petitioner to get the buffalo. He brought out the difference between the language of sections 517 and 522, and said that under section 517, the person claiming to be entitled to a property can ask for its delivery whereas under section 522, Cr. P. C. a person asking for the delivery of the property need only prove his possession. The learned counsel said that the difference in the phraseology of the two situations is meaningful and is meant for two different situations. The argument is correct in its own place, but the Courts of law have always acted on the principle that if 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. The Magistrate in this case was not called upon to make a detailed enquiry as to the ownership of the buffalo. The buffalo was admittedly taken from the possession of the petitioner on a suspicion that it was stolen property. The prosecution failed to prove that it was stolen property and in the absence of any such proof, the petitioner was clearly entitled to its restoration unless the civil Vourt, if approached in that behalf, comes to a contrary finding.

9. The result is that this revision petition is allowed and the order of the learned Magistrate is maintained. K. B. A. Petition accepted.