1. M. R. KHAN, J.-This appeal by special leave is directed against the order of a learned Single Judge of the High Court of West Pakistan, Lahore, passed on an application of the respondent, Ahmad Bakhsh made under section 517 of the Code of Criminal Procedure. The respondent made the said application in the following circumstances :- One Ahmad A.I Siddiqui and five others including Amanat Hussain an approver, entered into a criminal conspiracy and in furtherance of that conspiracy defrauded the Central Co--operative Bank Ltd., Sargodha (hereinafter called the Co--operative Bank) to the tune of Rs. 1,94,000. They were tried by the Sessions Judge, Shahpur district at Sargodha for offences under sections 120-8, 379, 420, 467 and 477 of the Pakistan Penal Code. All the accused persons including Ahmad A.I Siddiqui were found guilty and variously sentenced on the 12th October 1959. After the discovery of the conspiracy, Ahmad A.I Siddiqui who was the mastermind behind it, was arrested on the 19th September 1956. On interrogation by the Police, he gave out that he had kept currency notes of the value of Rs. 16,000 in deposit with Ahmad Bakhsh, the respondent herein. On the basis of this information, the Police went to the village home of Ahmad Bakhsh who then, on the demand of the Police, brought out currency notes of the value of Rs. 16,000 and made over the same to the Police on the 21st September 1956. These currency notes of the above value were seized by the Police under recovery memo. Exh. P. W. 64/A which was signed by Ahmad Bakhsh himself, besides the Police Inspector Malik Umar Khan and Habib Sultan Khan, a co-villager of Ahmad Bakhsh. While convicting Ahmad A.I Siddiqui, the learned Sessions Judge relied on the recovery of the sum of Rs.
2. 16,000, holding that the same had been deposited by Ahmad A.I Siddiqui with Ahmad Bakhsh and that it was a part of the tainted money falling in the share of Ahmad A.I Siddiqui out of the sum of Rs. 1,94,000 obtained fraud, forgery, etc. Accordingly, the learned Sessions Judge directed that the sum of Rs. 16,000 should be given to the Co--operative Bank. Pursuant to this direction, the said sum was, in fact, handed over to the Bank. All the convicted persons including Ahmad A.I Siddiqui preferred appeals against their convictions and sentences. Mr. Justice A. R. Changez, a Judge of the High Court, by his judgment, dated the 15th March 1961, dismissed the appeals of four out of the five appellants, but accepted the appeal of one, namely, Muzaffar Hussain and acquitted him.
3. Although the convictions and sentences of Ahmad A.I Siddiqui were maintained by the learned Judge, he did not put any reliance on the recovery of the currency notes of the value of Rs. 16,000 from Ahmad Bakhsh on the ground that Ahmad A.I Siddiqui himself had not led the Police party to the house of Ahmad Bakhsh when he was asked to produce the amount and also on the ground that the statement of Ahmad Bakhsh in the recovery memo. That Ahmad A.I Siddiqui had kept the money in deposit with him, being a statement made in the course of the investigation, was inadmissible in evidence.
4. Ahmad Bakhsh who deposed in the trial Court as P. W. 77, admitted to have produced the currency notes of the value of Rs. 16,000 on the demand of the Police, but denied that the currency notes had been kept in deposit with him by Ahmad A.I Siddiqui. In spite of this stand taken by Ahmad Bakhsh as a witness at the trial and the learned Single Judge's refusal to put any reliance on the recovery of the currency notes from Ahmad Bakhsh as a piece of evidence in support of the conviction of Ahmad A.I Siddiqui, Ahmad Bakhsh kept quiet for a period of about 2 years and 9 months from the time of the High Court's judgment and did not make any move for getting return of the sum of Rs.
5. 16,000. It was only on the 28th December 1963, that Ahmad Bakhsh made an application to the High Court for the first time claiming return of the sum of Rs. 16,000 recovered from him by the Police.
6. This application of Ahmad Bakhsh was resisted by the Co-operative Bank. It was asserted on behalf of the Bank that the order directing payment of the money to the Bank was a valid order and that the High Court had no jurisdiction to interfere with it. On the question of jurisdiction, the learned Single Judge took the view that the High Court wits competent under section 520 of the Code of Criminal Procedure to make such order as it may think just with regard to the disposal of the said sum of Rs. 16,000. In this appeal, the objection with regard to the High Court's jurisdiction to deal with Ahmad Bakhsh's application under section 51 / (t) of the Code was no more pressed on behalf of the Co-operative Bank.
7. As regards the merits of the case, the learned Judge observed :- "The High Court was not satisfied that any offence was committed with respect to the property (i.e. The currency notes of the value of Rs. 16,000). In such a circumstance, there could be no initial justification for taking over the property and since it has now been held that no offence has been committed regarding this amount, it should be restored to the person from whom it had been taken."
8. On these premises, the learned Judge made the following final order :- "Under the circumstances, when the amount was admittedly recovered from the petitioner and no offence has been committed in respect thereof, it has to be delivered to him. The Central Co- operative Bank, Sargodha, should pay this amount to the petitioner."
9. We have looked into the judgment of the High Court in the criminal appeal of Ahmad A.I Siddiqui. It is not strictly correct to say that the High Court, in fact, found that no offence was committed in respect of the currency notes of the value of Rs. 16,000. Mr. Justice A. R. Changez who heard the criminal appeal simply declined to put any reliance on this piece of corroborative evidence, namely, the recovery of the currency notes from Ahmad Bakhsh only on the ground that the evidence furnished with regard thereto was inadmissible, but the learned Judge did not arrive at any positive finding that no offence was committed in respect thereof. What the learned Judge said in this regard was as follows :- "It transpires from the evidence of the recovery witnesses Habib Sultan (P. W. 75) and Malik Umar Khan, Inspector of Police (P. W. 97), that Ahmad A.I Siddiqui accused had not led the police party to the house of Ahmad Bakhsh P. W. When he was asked to produce this amount. It is true that in the memo. Exh. P. W. 64/A it is stated that Ahmad Bakhsh P. W. Bad produced this amount saying that it had been deposited by Ahmad A.I Siddiqui accused. But this statement is obviously inadmissible.
10. The statement having been made by Ahmad Bakhsh P. W. In the course of the investigation is barred under section 161, Criminal Pro--cedure Code. There is no evidence on the record that it was Ahmad A.I Siddiqui accused who had deposited this amount with Ahmad Bakhsh P. W. As such no reliance can be placed an the recovery of this amount from Ahmad Bakhsh P. W."
11. It is plainly clear from the above quotation that although Mr. Justice A. R. Changez did not rely on the recovery of the currency notes for want of admissible evidence, he did not arrive at any positive finding that no offence was committed with regard thereto. The learned Judge who dealt with the application under section 517 of the Code of Criminal Procedure stated in his order that the Supreme Court did not disturb the finding of the High Court with regard to the said currency notes.
12. When Mr. Justice A. R. Changez did not arrive at a positive finding that no offence was committed wish respect to the currency notes, the question of this Court's not disturbing the High Court's finding did not arise, What, however, happened was that when a further criminal appeal was talon to this Court by Ahmad A.I Siddiqui, the evidence furnished by the recovery of the currency notes from Ahmad Bakhsh went unnoticed in this Court's judgment, and the conviction of the appellant was maintained on the basis of other piece of evidence. So, it is not factually correct that the High Court definitely held that no offence was committed in respect of the currency notes and that such a finding remained undisturbed by this Court.
13. The question of disposal of the currency notes of the value of Rs. 16,000 will have to be decided according to the provisions of subsection (1) of section 517 of the Code of Criminal Procedure.
14. Subsection (1) of the said section runs thus :- "517 (1) When an inquiry or a trial in any Criminal Court is concluded, the Court may make such order as it thinks fit for the disposal of any property or document produced before it or in its custody or regarding which any offence appears to have been committed, or which has been used for the commis--sion of any offence."
15. 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 under the Code has been concluded. It is also evidence 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 discretionery. 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.
16. On the facts of the present case, the provisions of sub--section (1) of section 517 are clearly attracted. The property required to be disposed of is the sum of Rs. 16,000. Ahmad Bakhsh and 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 commit--ted 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 are special circumstances "hick would justify the adoption of r different course.
17. Learned counsel for the Co-operative Bank submitted that there are ample materials on record to show that the sum of Rs. 16,000 was a part of the tainted money obtained by defrauding the Bank; that Ahmad A.I Siddiqui had kept that money in deposit with Ahmad Bakhsh who was admittedly a relation of Ahmad A.I Siddiqui and that the same was produced before the Police by Ahmad Bakhsh on the information supplied by Ahmad A.I Siddiqui. His further contention was that in the criminal appeal Mr. Justice A. R. Changez was not right in taking the view that the evidence with regard to the deposit of the currency notes by Ahmad A.I Siddiqui to Ahmad Bakhsh was inadmissible. The learned counsel lastly contended that, at any rate, special circumstances are there in this case for which the sum of Rs. 16,000 should not be returned to Ahmad Bakhsh and the Bank should be allowed to have continued dominion over that sum of money.
18. It appears that in this case there are indeed some special features which deserve the consideration in the disposal of the sum of Rs. 16,000 The said sum was recovered from Ahmad Bakhsh on the information given out by Ahmad A.I Siddiqui to the Police Inspector Malik Umar Khan.
19. The recovery memo. Exh. P. W. 64/A relating to the recovery of the sum of Rs. 16,000 contains Ahmad Bakhsh's admission in writing that it was Ahmad A.I Siddiqui who had kept that sum in deposit with him. Besides, Ahmad Bakhsh admitted before P. Ws. Habib Sultan and the Police Inspector Malik Umar Khan that Ahmad A.I Siddiqui had kept the said sum in deposit with him. The question as to the admissibility of such evidence in the present proceeding under section 517(1) of the Code of Criminal Pro--cedure does not present any difficulty. A proceeding under the said section is obviously different from inquiry or trial under the, Code and is a collateral proceeding for the purpose of disposal of the property or document concerned. In fact, a proceeding under section 517(1) of the Code of Criminal Procedure com--mences only after the connected inquiry or trial has been concluded In such a proceeding, section 25 of the Evidence Act and section 162 of the Code of Criminal Procedure are inappli--cable for the simple reason that the proceeding does not concern any inquiry against, or trial of, a person accused of an offence. Hence the confession made by Ahmad A.I Siddiqui to the Police Inspector that he had kept Rs. 16,000 in deposit with Ahmad Bakhsh is admissible in evidence in this proceeding, unfettered by section 25 of the Evidence Act. Similarly, the statement of Ahmad Bakhsh to the Police under section 161 of the Code and his admission in writing in the recovery memo. Exh. P. W. 64/A that Ahmad A.I Siddiqui had kept Rs. 16,000 in deposit with him is admissible in this proceeding in spite of the bar of section 162 of the Code.
20. Of late, Ahmad Bakhsh disputed the Bank's claim to retain possession of the sum of Rs. 16,000 and asserted his own title thereto. He stated in the committing Court and the trial Court that it was due to the pressure of the Police that he had procured the said sum of money by borrowing from others and handed over the same to the Police. In the committing Court, he even named the persons from whom he had borrowed money, but none of them was examined by him in this proceeding. He denied that Ahmad A.I Siddiqui had kept the said sum in deposit with him. This denial, however, runs counter to his own earlier admission in the recovery memo. Exh. P. W. 64/A. Thus, it appears that a question of title to the money is involved in this case. At any rate, there has arisen a reasonable doubt as to whether Ahmad Bakhsh is at all entitled to claim return of the money in question. In a proceeding under section 517 (1) of the Code of Criminal Procedure it is hardly desirable to decide the question of title to the property concerned, nor is the criminal Court competent to decide it either. The question of title, if any, should be left to be decided by the ordinary civil Court of competent jurisdiction.
21. It was pointed out by the learned counsel for the Co--operative Bank that at no stage Ahmad Bakhsh made any complaint to higher Authorities against the alleged pressure of the Police, nor did he lay any claim to the sum of Rs. 16,000 until 21 years after the judgment of the High Court in the criminal appeal, nor did he adduce any evidence to show from whom and in what manner he had borrowed the sum for payment to the Police. It was further pointed out that during the first day of the hearing of this appeal Ahmad A.I Siddiqui was personally present in this Court to advise the respondent's learned counsel, but Ahmad Bakhsh was absent. From these facts, the learned counsel wanted to say that it was Ahmad A.I Siddiqui who was pulling the wire from behind, but Ahmad Bakhsh himself was not interested in the claim for return of the sum seized from him in view of the order that we purpose to make in this case, we do not, however, think it necessary or desirable to offer any com--ments on the submissions made by the learned counsel for the appellant. Having regard to the special circumstances of this case, we think that the sum of Rs.
22. 16,000 which was already given to the Central Co-operative Bank Ltd. Sargodha, under the orders of the trial Court continue to be held by that Bank subject to establishment of either party's title thereto in a civil Court of competent jurisdiction. We, therefore set aside the order of the High Court and dispose of the appeal accordingly.