P (PLP)

It is a well settled principle of law that where there has been enquiry or a trial and the accused person is discharged or acquitted by the Criminal Court, that Court should ordinarily restore the property, the subject‑matter of the investigation, to the person from whose custody it was taken. Section 517 Criminal Procedure Code provides summary procedure regarding the disposal of the property and an order under this section does not decide the question of the ownership of the property. It simply decides a right to possession till a Civil Court decides the question of the ownership of the property. Ashiq Hussain, for Appellants. Muhammad Sharif , Advocate‑General, for Government. ORDER.‑‑The facts giving rise to this revision petition briefly stated are as follows :‑ The petitioner, Ghulam Ahmad and two other persons namely, Kamal Din and Mumtaz Ahmad were prosecuted for offences punishable under sections 409 and 411 read with section 109 A. P. C. The petitioner and one of his accom plices, Kamal Din, were Civil Supplies Inspectors in Kotli, tahsil of Mirpur District. The Civil Supplies Inspectors used to receive grain from Jhelum and after storing, distributed it among the dealers there. It was alleged that the petitioner in conspiracy with Kamal Din had misappropriated huge quantity of grain and sold it to Mumtaz Ahmad and other shop‑keepers. Before the investigation into the conduct of the petitioner and Kamal Din was taken in hand, the Civil Supplies Officer raided the place where the two culprits lived. A sum of Rs. 1,791 was recovered therefrom. This amount was stated by the petitioner as belonging to him after some hesitation. A report was made then to the police by the Civil Supplies Officer for registration of the case. The police took possession of Rs. 1,791 and after investigation sent up the petitioner and the two other culprits for trial. The District Magistrate, Mirpur before whom the petitioner and his accomplices stood their trial, acquitted Mumtaz Ahmad and convicted the petitioner and Kamal Din under section 409 A. P. C. The petitioner and Kamal Din were sentenced to imprisonment till the rising of the Court and Rs. 500 fine each. The amount of Rs. 1,791 was confiscated and ordered to be paid to the Civil Supplies Department. The petitioner and Kamal Din preferred an appeal against their conviction and sentences to the Sessions Judge, Mirpur. On going through the records most carefully and weighing the evidence produced on both sides the learned Sessions judge found that the guilt of the appellants was not established. The result was that the petitioner and Kamal Din were acquitted. As regards the amount of Rs. 1,791 ordered to be confiscated and paid to the Civil Supplies Department, by the District Magistrate, the learned Sessions judge held that the proper order should be, passed by the Civil Supplies Department, who had taken its possession originally. The order of the learned Sessions judge on the last point is challenged in this petition. It is contended that the amount of Rs. 1,791 was alleged by the prosecution to have been realised by the petitioner by the sale of grain misappropriated by him and hence it was property regarding which an offence appeared to have been committed and consequently the proper order under section 517 Criminal Pro cedure Code after the conclusion of a trial to pass was for the handing of the property to the petitioner with whom it was in the beginning of the case and further that on the general principle of law property taken under the authority of law for a particular purpose should on the fulfillment of that purpose go back to the custody whence it was taken. The contention is full of force. The explanation to sec tion 517 Criminal Procedure Code is clear on the point that the term " property " used in that section includes in 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 control of any party but also any property into or for which the same has been converted or exchanged and anything acquired by such conversion or exchange whether immediately or otherwise. As already remarked, Rs. 1,791 taken; possession of by the Civil Supplies Department and claimed by the petitioner as belonging to him according to the prosecution represented the price of the grain alleged to have been mis appropriated and sold by the petitioner and his accomplices. It was, therefore, property regarding which offence appeared to have been committed. This being the case it was the duty of the learned Sessions judge to pass an order for its disposal on the conclusion of the, trial as laid down in section 517 Criminal Procedure Code and not to leave the matter to be decided by the Civil Supplies Department. It appears that the learned Sessions judge was under the impression that he had no power to make an order for the disposal of the amount of Rs. 1,791, as the money had been recovered by the Civil Supplies Officer and handed over to the police and he was not seized thereof. This view of the learned Sessions judge is manifestly wrong in the, circumstances of the case. Even if it be considered that the doubt was lurking in the mind of the learned Sessions Judge as to whether the amount of Rs. 1,791 belonged to the petitioner then also it cannot be said that the discretion vested in the learned Sessions judge for passing any order considered fit by him was exercised properly. The words as it thinks fit used in section 517 Criminal Procedure. Code no doubt vest a discretion in the Court but it should be exercised not arbitrarily but according to sound judicial principles. It is a well settled principle of law that where there has been enquiry or a trial and the accused person is discharged or acquitted by the Criminal Court, that Court should ordinarily restore the property, the subject‑matter of the investigation, to the person from whose custody it was taken. Section 517 Criminal Pro cedure Code provides summary procedure regarding the disposal of the property and an order under this section does not decide the question of the ownership of the property. It simply decides a right to possession till a Civil Court decides the question of the ownership of the property. The discretionary power is to be exercised on the material before the Court. In this case there was no material before the Court that the amount had been realised by the sale of the grain belonging to the Government. The proper order should have been that the amount be made over to the petitioner from whose custody it was taken possession of. For the above reasons, I set aside the order Complained of and in lieu thereof make an order that the amount of Rs. 1,791 be handed back to the petitioner. The District Magistrate, Mirpur is directed to give effect to this order. K. M. A. Petition accepted.