P L D 1972 Karachi 548 (PLP)

" There is no prayer before me in respect of the amount of Rs. 1,10,000.00 which the learned Magistrate directed to be released to the person from whom it was recovered and so I pass no order in respect of this order."

4. Mr. Abul Khair Ansari, learned counsel for the appli cants, contended that the learned Additional Sessions Judge had the power to annul the order, though he did not elaborate the point. His main contention was that as the West Pakistan Enemy Property Management Board in exercise of the powers conferred by Clause (B) of Sub‑rule (1) of rule 82 of the Defence of Pakistan Rules read with section 2 of the Enemy Property (Continuance of Emergency Provisions) Ordinance, 1969, and the Government of Pakistan, Ministry of Communication Notifica tion No. S. R. O. 62 (K)/68, dated 5‑1‑1968, had ordered vide Notification dated 11‑1‑1971 that the amount in question vested in the Additional Custodian, Enemy Property for West Pakistan, it could not be refunded to aforesaid non‑appli cant at all.

5. The observation of the learned Additional Sessions Judge that orders under section 517, Cr. P. C. could be modified, altered or annulled only in a regular appeal or revision, is hardly sustainable. In that case, the provisions of section 520 of the Code of Criminal Procedure would become a mere surplus age for the same order could be passed in appeal or revision even in the absence thereof. Section 520, Cr. P. C., reads as under:‑ "Section 520.‑Any Court of appeal, confirmation, reference or revision may direct any order under section 517, section 518 or section 519, passed by a Court subordinate thereto, to be stayed pending consideration by the former Court, and may modify, alter or annul such order and make any further orders that may be just."

6. Patently, this was a special provision intended to apply to cases other than those where an action could be taken in appeal or revision. There is nothing to indicate in terms of sec tion 520, Cr. P. C. that the powers of the appellate or revisional Court subsisted during the pendency of the appeal, or revision in the original case only. It is also to be seen that there is no provision in the Criminal Procedure Code for an appeal against an order under section

517. We have, therefore, to rely only on section 520 of the Code which is an independent and substantive jurisdiction under which any Court, to which appeal or revision from the decision of the Magistrate ordinarily lies, could modify, alter or annul an order passed under section 517, Cr. P. C. An application under section 520, Cr. P. C. can be made not withstanding the fact that the appeal or revision had been disposed of. I am fortified in my view from Ghulam Akbar v The State (P L D 1958 Lah. 212), Ahmad Bux v. The State and another (P L D 1966 Lah. 918), Sardara v. Boota (P L D 1950 Lah. 97), Sobhapati Dubey v. Ram Kissen Kumar (A I R 1936 Cal. 185), U. P. Hla v. Ko Po Shein (A I R 1929 Rang. 97), The Express v. Jaggasur Mochi (I L R 3 Cal. 379) and Fatima v. Sain Bakhsh (A I R 1942 Sind 1).

7. There can be no gainsaying the fact that the Court of appeal referred to in section 520 of the Code of Criminal Pro cedure against the order of the disposal of the property passed by the learned City and A. D. M., Karachi was the Court of Session, Karachi and the learned Additional Sessions Judge was also a Court of Session exercising concurrent powers with the Sessions Judge. It was also a Court of revision so far as the orders under section 517 of the Code are concerned, and it could itself make a proper order without making a reference to the High Court. At any rate, the application for revision, as filed, could be treated as an application under section 520, Cr. P. C. and a suitable orders could be passed thereon.

8. It is also settled law that there is no limitation prescribed ‑for an application under section 520, Cr. P. C. (See Ahmed Bux v. The State and another, referred to earlier in which some other cases also came to be considered). The observation of the learned Additional Sessions Judge that the matter could not be considered after the decision in the main appeal and revision, cannot therefore be said to reflect the correct position of law. In this view of the matter it remains to see whether the order of the learned City and A. D. M., Karachi, could pass muster.

9. Muhammad Hasan, the non‑applicant No. 2 in his statement under section 342, Cr. P. C. categorically stated at the trial that he knew nothing about the cash amount of Rs. 1,10,000.00 in question. Even Darshan Lal remained comp letely raticent about it though he admitted the securing of the cheque book from him. Certainly he never claimed the money. If none of the two non‑applicants claimed the money, the learned Magistrate could not order the return of the money to any of them.

10. In Emperor v. Beni Madhao (A I R 1936 Nag. 143), the said Beni Madhao was arrested by the police as a suspicious character and proceedings were started against him under section 109, Cr. P. C. At the time of arrest he had in his possession a bundle contain ing Rs. 206.00. His explanation during the proceedings was that he had brought the money from his uncle Ram Sukh. The letter however. showed complete ignorance about ft. It appears hat one Kanhai had reported that he had entrusted the money to Bani Madhao for payment to his creditor by the name of Bhayalal but the latter denied being the creditor of Kanhai. The learned Magistrate found it to be suspicious property and confiscated the same to the Government. The order was set aside by the learned. Sessions Judge against which a revision petition was filed. It was held therein that: "As the non‑applicant disclaimed the property it would have been improper to restore it to him. It was so held in ' Channan v. Emperor 37 P W R 1913. The indications were indeed that some offence had probably been committed in connection with this money. The order of confiscation was quite legal" Similarly in In re : Chinanadu and others (A I R 1942 Mad. 726), where the accused disclaimed the property alleged to have been secured from them, saying that it was foisted on them, it was found to be wrongly returned to the accused as they were not entitled to possession.

11. In Central Cooperative Bank Ltd., Sargodha v. Ahmad Bakhsh (P L D 1970 S C 343), a number of persons had entered into a criminal conspiracy and in furtherance of that conspiracy defrauded the said Bank to the extent of Rs. 1,94,000.00. On the pointation of Ahmad Ali, one of the accused in the precedent case, a sum of Rs. 16,000.00 was secured from one Ahmad Bakhsh, with whom he stated to have kept it in deposit. Ahmad Ali and the other co‑accused were convicted by the learned Sessions Judge. Holding that the amount of Rs. 16,000.00 was a part of the tainted money, falling to the share of Ahmad Ali, he ordered it to be given to the Bank. The money was actually passed on to the Bank The convicts filed appeals in the High Court. The appeals of 4 of the 5 convicts including that of Abroad Ali, were dismissed, but the learned Judge who heard the appeals, did not put any reliance on the recovery of the currency notes from Ahmad Bakhsh. More than two years after the said Judgment, Ahmad Bakhsh who had appeared as a prosecution witness, made an application in the High Court for the return of the money seized from him. The money was ordered to be returned to him. In appeal by special leave, their Lordships of the Supreme Court, ordered the money to be returned to the Bank, as there was no positive finding in the appellate judgment, that no offence was committed in regard thereto. Their Lordships observed : "The opening words of subsection (1) of section 517 make it perfectly clear that the operation thereof is attracted only after the connected inquiry or trial has been concluded. It. is also evident from the words "as it thinks fit" occurring in the said subsection that the `Courts' power to dispose of any property or document thereunder is discretionary. But the discretion of the Court should be exercised according to sound judicial principles and not arbitrarily or fancifully. The pro perty or the document required to be disposed of, as laid down in subsection (1) must be one which has been produced before the Court or is in its custody, or regarding which any offence appears to have been committed, or which has been used for the commission of any offence . . . . ." The disposal of the property has therefore to be made in the light of these observations.

12. It is an admitted position that Darshan Lal is an Indian National. The learned City and A. D. M. relied on the evidence that his visa was valid for two weeks only and that too only for Lahore. He also held that: "his secret visit to Karachi gives me a clear indication that be did so, with a view to screen his smuggling activities in, Karachi." It also appears that Darshan Lal had made a bid for safety, when the raiding party had reached the Bungalow and was overpowered after a short chase. It was further found that he had tried to jump over the wall, after setting fire to the pantry of the bun galow. Some articles had been put to fire. These included traveller's cheques, dollars, some documents and the like. Muhammad Hasan at the time of his arrest was armed with a revolver with 5 live bullets. In its chamber. Among the articles seized were smuggler's jackets, containing gold bars of foreign origin. The currency notes were secured from an Air Bag, which was filled with 68 watches. There were a number of anti smuggling jackets. Darshan Lal and Muhammad Hasan, had also not claimed the money. It is therefore rather surprising that in the face of all these facts, the learned City and A. D. M. still ordered the restoration of the obviously tainted money to Darshan Lal, from whom it was alleged to have been seized. The observations of the learned Additional Sessions Judge in appeal have been reproduced earlier. No attempts were made to show that these findings were disturbed in revision. Under these circumstances the order of the learned City and A. D. M. in regard to the return of the money to Darshan Lal must be set aside. The amount of Rs. 1,10,000 stands confiscated to the Government. It will not, therefore, be necessary to examine the other contention advanced by Mr. Abul Khai Ansari, about the vesting of the money in the hands of the Additional Custodian. Enemy Property for West Pakistan.

13. In the result, I will set aside the impugned order and allow the revision application. The Additional Custodian will take steps to credit the amount of Rs. 1,10,000.00 to the Govern ment account. Orders accordingly. Revision allowed.