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Special Criminal Appeal No.2 of 1987, decided on 18th May, 1987.

---Ss .85(f)& 156(1)(.89) -Criminal Procedure, Code (V of 1898), S.517 Forgien currency---restoration of---Accused an Afghan refugee and Iranian currency recovered from him while in interior of Sind--Accused tried and acquitted of charge of smuggling No dispute of law 'accused Ownership of currency before trial Judge--No barring accused from claiming currency after his acquittal--Notification NoP.E:1/78-5B dated 11-5-1978 unconditionally allowing bringing of foreign currency in Pakistan Provision of S.517 (1) Cr.P.C. held were clearly attracted and accused was entitled to restoration of Iranian currency recovered from his possession--Currency ordered to be restored to accused in circumstances.

Central Coop Bank Sargodha v. Ahmed Bux PLD 1970 S C 343 ref.

K.M. Nadeem for Appellant

Imam Ali Kazi, Dy. A.G. for the State.

Date of hearing: 18^th May 1987.

This appeal under section 85 (f) of the Customs Act, 1969 is filed by appellant Haji Khuda-e-Nazar against the order of Special Judge Customs Karachi dt. 24-1-87 whereby the learned Judge declined to resotre foreign currency (Iranian Riayal) amounting to Rs 2,35,000/ to appellant on his application under Section 517, Cr.P.C. The appellant who is an Afghan national was arrested on 13-9-82 at jacobabad while travelling in a car and foreing currency (Iranian Riayal) 2,35,00,000/ was recovered from his possession the appellant alongwith others was tried under section 156 (1) (89) read with Section 178 of Customs Act, 1969 but was acquitted of the charges on 31-5-1988 After acquittal the appellant applied to the Special Judge Customs Karachi for restoration of the foreign currency 'seized from him but the application was rejected on 2-7-1988 on the ground that the disposal of the, seized foreign currency was to be done by the' Customs Authorities in accordance with the provisions of the Customs Act'. The appellant then filed a 'revision application to this Court which was allowed on 20th October 1986 and the case was remanded back to 'the Special Judge; Customs with the direction to rehear the case and decide the same in accordance with the observations made in the above order. The learned' Special Judge Customs with the direction to once again declined the request of the appellant and has stated 3 grounds for refusing to restore the currency to the appellant firstly it was found by the learned judge that, under section 517 Cr.P.C. a person applying far return of the case property has no absolute right to get back the property on acquittal and Court had discretion to refuse -restoration of property. To illustrate the point the learned Judge has cited the example of a case Where at unlicensed arm is recovered from the possession of person who though may be acquitted in the case from the charges but, cannot; claim restoration of unlicensed arm under section 5,17, Cr.. P. C The, second, ground, on which the learned Judge declined to, order restoration of the foreign currency to the appellant, is that, the appellant being, an-Afghan, national was not entitled to be present out side, the limits of; his camp Where he was lodged and the fact that he was found by the , police in the interior of Sind at the dine of his arrest lends supports to the conclusion that he was involved in the smuggling' of currency within the meaning of Section 2(s) of the Customs Act: The last ground on which the learned Judge declined to restore the foreign currency to the appellant was that the concession available to a person to bring in foreign currency in Pakistan without limit under notification dated 27^th August 1960, is restricted to such cases where foreign exchange has been brought through regular/authorised routes and after making a declaration to that effect to the concerned Customs Authorities and as in the present case the currency was not brought through a regular route and after making declaration to Customs Authorities the same cannot be restored to the appellant. And the earned counsel for the appellant and the- learned Deputy Attorney- General, I am of the view .that the appellant is ;entitled to the restoration of the Iranian Riayal which were, recovered from his possession at the time of his arrest.

It is true that a Court while dealing with an application under Section 517, Cr.P.C. has discretion either to order or refuse restoration of the case property claimed 'by an acquitted accused but such discretion has to be exercised according to sound judicial principles and the principles and the guidelines laid down by the superior courts in this regard and not in an arbitrary and not in an arbitrary and fanciful manner. In this connection the following observations of the Supreme Court in the case of Central Coop. Bank Sargodha v, Ahmed Bux PLD 1970 SC 343 may be reproduced with respect which appear at page 347 of the report perfectly clear that the operation thereof is attracted only after the connected inquiry or trial under the Code has been concluded. It is also evident from the words "as it thinks fit" occurring in the said subsection that the Court's 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 property 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. According to the modes of disposal as prescribed in the said subsection, the property or the document concerned may be ordered to be disposed of by destruction, confiscation or by delivery thereof to any person claiming to be entitled to its possession.

On the facts of the present case, the provisions of subsection (1) of Section 517 are clearly attracted. The property requires, to be disposed of is the sum of Rs.16,000/- Ahmed Bux an(: the Co-Operative Bank are the rival claimants in respect of the said sum of money. The ordinary principle is that when, no offence has been proved or appears to have been committed with regard to the property required to be disposed of under subsection (1) of Section 517 of the Code or if the property has not been used in connection with any offence, the same, should be restored to the person from whom it was taken unless there are special circumstances which would justify th e adoption of a different course."

In the case before me there was no dispute before the learned trial Judge with regard to the ownership of the foreign currency recovered from the possession of the appellant. There is also no law whit came in the way of appellant in claiming possession of the foreign currency on his acquittal in the case. The appellant who was accused of the charges of smuggling the foreign currency in an unauthorisedly was acquitted by the learned Court in the case, and no other proceedings with regard to the case property namely the Iranian Riayal recovered from the appellant were pending before any competent Court or authority. In these circumstances there gas hardly any ground available for refused to restore the currency to the appellant under Section 517 Cr.P.C.,

The second ground on which the learned Judge refused to restore the property to the appellant was that the appellant could reasonably be held involved in the smuggling of foreign currency in Pakistan, as being an Afghan national he should have confined himself in the refugee camp provided by the Government Instead of being present in the interior of Sind unauthorisedly. This conclusion of the learned Judge is self-contradictory as the appellant who was accused of the offence of smuggling foreign currency in Pakistan was acquitted of those charges and as such the above consideration was wholly irrelevant in refusing the application under Section 517, Cr.P.C.

The last ground on which the learned Judge held that the foreign currency recovered from the appellant could not be restored to him was that under the notification, dated 27th Aug. 1960, the concession for bringing in the foreign exchange into Pakistan was available only in respect of such foreign currency which was brought by a foreigner through an authorised route and after making a declaration to that effect to the proper Customs Authorities. This conclusion of the learned trial Judge is equally misconceived. The notification referred to by the learned Judge stands superseded by a subsequent notification No.F.E. 1/78-SB, dt. 11th May, 1978 which unconditionally allowed bringing in of the foreign currency by any person in Pakistan without any limit except in cases of un issued notes and notes which are legal tender in Pakistan. The above notification further provided that in respect of such foreign exchange no declaration was necessary unless such a declaration is required in any case by the Cutsoms Officer. In view of the above stated legal position t-here was no justification for the learned Judge to have refused restoration of the currency seized from the possession of the appellant after he was acquitted in the case. I accordingly accept this appeal, set aside the order of Special Judge and direct that the currency notes seized from the possession of the appellant be restored to him in accordance with law. It is however, clarified that if there is any other legal provision under which the State Bank of Pakistan or any other authority has a right to proceed against the appellant with regard to these currency notes it will be open to them to follow such a course.

S.A./K-32/K Appeal accepted.

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