' This revision application raises an interesting question with regard to the provisions contained in section 516-A, Cr.P.C.
2. On 12-2-1989, the F.I.A. Party raided the official residence of Rasheed Khan, a Sepoy in Pakistan Customs and secured a sum of Rs,14,29,060, one V.C.R., 29 bottles of whisky and 18 watches from his possession. A case under section 5(2) of the Prevention of Corruption Act, 1947, was registered against Rasheed Khan, Sepoy. Applicant Arhab Khan, who is brother of accused Rasheed Khan Sepoy claimed Rs,14,29,060 by stating that he had sold his lands at Kohat for Rs,20,00,000 (Rs, twenty lacs) which were kept in the quarter of Rasheed Khan. According to him the amount of Rs,14,29,060 is in fact a part of the sale-proceeds of the land which he had earlier sold. An application under section 516-A, Cr.P.C. Was, therefore, moved before Special Judge (Central), Karachi, which was dismissed vide order, dated 12-4-1989, giving rise to the present revision application.
3. I have heard Mr. Liaquat All Shaikh, learned counsel for applicant and Mr. All Nawaz Dahraj, learned counsel for State.
4. Section 516-A, Cr.P.C. Provides as follows:-- "When any property regarding which any offence appears to have been committed, or which appears to have been used for commission of any offence, is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks lit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy or natural decay, may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of: ' Provided that, if the property consists of explosive substances, the Court shall not order it to he sold or handed over to any person other than a Government Department or office dealing with, or to an authorized dealer in, such substances."
5. According to the case of the prosecution the heavy amount recovered from the possession of Rasheed Khan Sepoy of Pakistan Customs in fact belongs to him which he had collected through illegal means. A case of criminal misconduct as defined by section 5 of the Prevention of Corruption Act, 1947, was accordingly registered against him. There is, therefore, substance in the observations made by learned Special Judge (Central), Karachi, when he states:-- "Since the amount in question was recovered from accused's house, prima facie, the legal presumption would be that it belonged to him. Therefore, at this stage, the said amount cannot be returned to applicant. It is, however, mentioned here that the issue of ownership of said amount would finally be decided after the evidence in the case is recorded."
6. A criminal Court is not expected under the provisions of section 516-A or 517, Cr.P.C. To decide nice questions involving the ownership of property, requiring oral and documentary evidence to establish the same. In the case of Syed Amanullah v. Additional City Magistrate No,2 East Karachi, reported in PLD 1978 Kar. 934, a Division Bench of this Court observed as follows:-- "Now section 516-A was designed to empower the Courts to pass orders for the temporary custody of property produced before them pending final decision of the case with which the property was concerned. The section uses the word 'may' and not the word 'shall' and consequently it would appear to us that it is discretionary for the Courts to pass an order for the interim custody of the property and they are not bound to pass such an order. Of course, an order under section 516-A, being a judicial order, has to be passed after due consideration of all the relevant circumstances of the case, and cannot be capricious or arbitrary, but this does not mean that the Courts are bound in all cases to pass an order for the interim custody of the property. Mr. Muhammad Ali Shaikh contended that the word 'may' in section 516-A, Cr.P.C., should be construed as 'shall', but he was unable to cite any authority in support of his contention. No doubt, there are number of authorities where normally property has been returned to the person from whose possession it was illegally taken, or who was otherwise entitle to its possession, but each case depends upon its own circumstances and no hard and fast rule can be or has been laid down in this behalf. We are, therefore, of opinion that no case has been made out by the petitioner to warrant interference by this Court in the exercise of its Constitutional jurisdiction, since the two learned lower Courts have refused to give temporary custody of the car to the petitioner on the ground that he had failed to produce sufficient evidence before them to establish his entitlement or claim to the car."
7. The scope of section 516-A, Cr.P.C. Was elaborately discussed in the case of Muhammad Yousuf v. Muhammad Iqbal and 3 others, reported in PLD 1979 Kar. 430, wherein a Division Bench of this Court after analyzing the case-law available on this subject held:-- "On the basis of the above rulings the following principles can be deduced;
(i) that if an article is recovered from a person against whom there is no allegation of any crime, the custody of the same be entrusted to such person on Superdari, and P.R. Bond.
(ii) that if an article is recovered from a person and if it is clear that the article was stolen, the same may be handed over to the owner against Superdari, and P.R. Bond.
(iii) that an order under section 516-A, Cr.P.C. Is an interlocutory order which can be varied by the trial Court even before the disposal of the case, if circumstances so warrant.
(iv) that the Criminal Courts are not competent to investigate into the question of title as their jurisdiction is confined under section 516-A, Cr.P.C. Or for that matter under section 517, Cr.P.C. To the determination of the entitlement to possession and not title to the property.
(v) that the question of ownership is to be determined by a competent Civil Court.
(vi) that an erroneous view taken by a trial Court or by a provisional Court while deciding an application under section 516-A, Cr.P.C. Cannot attract the Constitutional jurisdiction of a High Court."
8. The principles at (iv) and (v) are attracted in this case. The trial Court is not competent to investigate into the question of ownership of the money recovered by F.I.A. From the house of Rashccd Khan Sepoy of Pakistan Customs at this stage or even at the final stage. The applicant will have to take recourse to competent Civil Court for getting his title established.
9. Mr. Liaquat Ali Shaikh, learned counsel for applicant has also cited the following reported cases in support of his prayer:--
(i) Miss Zarina Khan v. The State 1970 P Cr. L J 1215.
(ii) Haji Muhammad Jamal Khan v. The State and another 1972 P Cr. L J 363.
(iii) Fazal Dad v. The State 1974 P Cr. L J 452.
(iv) Irshad Ali v. The State 1978 P Cr. L J 69.
(v) Rafique Muhammad v. The State 1978 P Cr. L J 214.
(vi) Malik Muhammad Rafique v. Tchscen Qureshi 1986 P Cr. L J 332.
(vii) Burkamal v. The State 1989 P Cr. L J 1110.
(viii) Nawab and others v. The Superintendent of Police Okara and others 1986 P Cr. L J 332.
(ix) Salim Ahmed Khan v. The State 1989 P Cr. L J 1118.
'The facts of all these cases are, however, distinguishable. It is a basic principle of the administration of justice that like cases should be decided alike. However, it is not everything said by a Judge when giving judgment that constitutes a precedent. The judgment must be read in the light of the facts of the cases in which they are delivered.
10. For the foregoing reasons the order passed by learned Special Judge (Central), Karachi, on 12- 4-1989, is not open to exception. The revision C application has got no merits and is dismissed accordingly.