' Briefly the facts are that the respondent Company carried on the business of sale and supply of pesticides etc. Agha Qamar Hasnain, a director of the respondent Company, alongwith four officers of the Agriculture Department were challaned under sections 409, 420, 277-A and 120-B, P.
P. C. Read with section 5(2) of the Prevention of Corruption Act, 1947. The prosecution case was that pursuant to a conspiracy between the accused, the Government was deprived of an amount of about rupees 6 lacs. It was alleged that the entire motet was withdrawn from Government Treasury and paid to Qamar Hasnain but goods worth a few thousand rupees only were supplied by him to the Government and the remaining amount was misappropriated. The case was registered in 1963 and the accused challaned in 1965. On 19th October, 1969 the Special Judge, Anti-Corruption, before whom the trial was going on, passed an order for making a query from the respondent- Company whether an amount of Rs, 5,41,683 was lying with them. This order was passed on statement made on behalf of accused Qamar Hasnain that the said amount could be recovered from them. Pursuant to this order, a notice was issued to the respondent Company and an explanation was tendered by them through their Chief Accountant. The explanation was that a sum of Rs, 6,36,095 were received by the Company from the Director of Agriculture Hyderabad for supply of pesticides and the Company supplied some pesticides which were accepted by the Government but for the balance amount of Rs, 5,43,683 pesticides were offered to the Department but delivery was not taken without assigning any reason and thus the Company "suffered loss for which it merits compensation". By order dated 23rd January, 1970, the learned Special Judge directed the respondent Company to deposit the said money in Court within two weeks of the date of the order. On 28th January, 1970 the amount was attached and notice for deposit of the amount was issued. The Company filed a criminal revision application (No, 21 of 1970) in the High Court against the said order for deposit dated 23rd January, 1970. The said revision was dismissed by order dated 29th March, 1971. The Company went to the Supreme Court of Pakistan which granted leave to appeal but then the appeal (Criminal Appeal No, K-10173) was finally dismissed by judgment dated 24th May, 1977 of the Supreme Court where it was held that the money in question was reasonably connected with the subject-matter of the charge and, therefore, the learned Special Judge was empowered- to direct its deposit under section 94, Cr. P. C. Which provided a substratum for an order to be passed under section 517, Cr. P. C. At the end of the trial. It is pertinent to observe here that in the meantime, the learned Special Judge, by judgment dated 16th November, 1972 acquitted all the five accused. The said judgment acquitting all the accused has become final as admittedly no appeal was filed against it. In para. 21 of the judgment the following conclusion of the learned Special Judge is to be found :- "The above discussion of all the P. Ws. Shows that prosecution has not brought any evidence on record to prove that any accused had derived any pecuniary advantage individually or in conspiracy nor there is any proof to prove any misappropriation nor there is any proof to show that false or fraudulent payment was made to G. T. M. C. Limited, Karachi."
' It is not clear why the fact of acquittal of the accused was not brought to the notice of the Supreme Court when they heard and decided the aforesaid appeal in May, 1977. The acquittal had taken place nearly 4i years earlier by judgment dated 16th November, 1972 of the Special Judge..
Apparently the counsel for the Company and the Assistant Advocate-General Sind, who appeared before the Supreme Court, were not aware of the acquittal of the five accused who were not parties in the appeal before the Supreme Court.
2. The order that has been impugned in the present criminal revision by the State is the order dated 6th May, 1978 of the learned Special Judge. It may be mentioned here that the amount directed to be deposited by order dated 23rd January, 1970 was not deposited and after the acquittal of the accused an objection was raised on behalf of the respondent Company to the deposit. By the impugned order dated 6th May, 1978, the learned Special Judge, held that the order dated 23rd January, 1970 could not be implemented and the notice to the respondent Company for depositing the amount was discharged. It was observed that it was for the contesting parties to enforce their claims before the competent Court, i,e, the civil Court.
3. I have heard Mr. Ghulamally Agha, learned counsel for the State, and Mr. Muhammad Jaffer Hashmi, who appeared on behalf of the respondent-Company. It was contended on behalf of the State that the following reasoning of the learned Special Judge was erroneous "As to the impugned order passed by this Court dated 23rd January, 1970 it is an interim order which had not yet been implemented when the final judgment was passed on 16th November, 1972 holding the accused before the Court not guilty. Consequently when no crime is held to have been committed the question of production or seizure of anything connected with the offence does not arise. If the order had been implemented earlier before the consideration of the trial the said property could have been disposed 9ff under section 517, Cr. P. C."
' I agree with the learned counsel for the State that the above view is not correct. While taking the above view, the learned Special Judge lost sight of the fact that the amount in question had been attached by the trial Court and upon attachment the amount came into the coustody of the trial Court which has the power not only to direct the deposit of the amount in Court even after the acquittal of the accused but could also pass an order under section 517, Cr. P. C. For its disposal.
4. The question that remains to be considered is whether an order be passed in this revision directing the deposit of the amount by the respondent Company in the Court of the Special Judge and a further direction be given to the Special Judge to pass an order under section 517, Cr. P. C. As regards the disposal of the amount or the final order be passed by this Court. I have decided to accept the second alternative in view of the facts of this case. It has already been noted that all the accused have been acquitted and the trial Court has held that it was not proved that any of the accused derived any pecuniary benefit ; that any misappropriation took place or that any false or fraudulent payment was made to the respondent Company. Then there is the plea of the respondent-Company that it has a claim for compensation against the Government for refusing to accept the goods. In these circumstances the controversy between the Government and the respondent Company becomes a civil dispute. In this view of the matter the amount, even if it had been deposited in the trial Court, would have been returned to the respondent Company while passing the order under section 517, Cr. P. C. As the amount has not been deposited, it would be pointless to direct the respondent to deposit the amount and then pass an order under section 517, Cr. P. C. For return of the amount to respondent. I, therefore, see no reason to set aside the impugned order dated' 6th May, 1978. With the aforesaid observations, present CriminalIC Revision No, 117/78 is dismissed.