2004 P Cr (PLP)

This Constitutional petition seeks judgments/orders, dated 19‑10‑2002 and 17‑12‑2602 passed by the learned Judicial Magistrate and learned Additional District Judge, Gujranwala, deciding "Superdari" application of a tractor/trolley with Registration No. BNA- 8150, against the petitioner, to be declared as illegal, void and of no legal effect.

2. Precisely, relevant facts are that a criminal case vide F.I.R. No. 116, dated, 15‑6‑1995 under sections 420/468/471/379, P.P.C. was registered with Police Station, Kamoke, District Gujranwala, against the petitioner and others on the complaint of Allah Ditta respondent No.

1. Tractor/trolley, subject of case, was taken into custody by the police from the petitioner and subsequently it was given on "Superdari" to respondent No. 1 by the trial Court. The matter regarding "Superdarx" went up to the Hon'ble Supreme Court wherefrom the matter was disposed of, as the challan case stood concluded by that time, acquitting the petitioner. This order by the Hon'ble Supreme Court was passed on C. P. No. 1198 of 1998 on 3‑12‑2001. Thereafter, the petitioner moved some contempt petition before the learned Additional Sessions Judge, Guiranwala who dismissed it with an observation that the petitioner should move an application to the trial Court, thence, he filed application for "Superdari" of the tractor/trolley before the trial Court in terms of these observations. Learned Judicial Magistrate after hearing the parties dismissed the application of the petitioner vide his order, dated 19‑10‑2002.

3. The petitioner aggrieved of the decision of the learned Magistrate, filed a criminal revision before the learned Additional Sessions Judge, Gujranwala, but remained unsuccessful as his revision petition was dismissed vide judgment/order, dated 17‑12‑2002. He, thereafter, filed instant Constitutional petition for the annulment of above‑referred two concurrent orders, refusing custody of the case property to him, with the relief, noted above.

4. Learned counsel for the petitioner submits that learned Magistrate who decided the Superdari application, had no jurisdiction to deal with the cases of the Police Station, Kamoke, with whom F.I.R. No. 116, dated 15‑6‑1995 was registered, as this police station was excluded from his control by an administrative order of the learned Sessions Judge. In this behalf he referred to an order of the learned District Judge, Gujranwala, dated 14‑1‑2003 whereunder Mr. Zubair Shahzad Kiani, Senior Civil Judge/Magistrate Section 30, Gujranwala was given only four police stations namely Girjakh, Arrop, Cantt. and Satellite Town. Learned counsel for the petitioner further contends that the petitioner was acquitted from the criminal case, which clearly shows that he was owner of the tractor/trolley' and thus was entitled to its custody. It has also been contended that since the tractor/trolley was recovered from the custody of the petitioner it was to be restored to him under law. Learned counsel for the petitioner further elaborated his arguments by saying that respondent No.1 (Allah Ditta) filed a suit for declaration claiming ownership of the tractor/trolley in question but his suit was dismissed on 10‑12‑1997, showing that his title to it, was refused by the civil Court. He further submitted that custody of the tractor/trolley, under law, will be considered, as that of the petitioner because Hon'ble Supreme Court had directed handing over of interim possession of the tractor/trolley to the petitioner.

5. Learned counsel appearing on behalf of respondent No.1 not only refuted the submissions of the petitioner but also supported the concurrent orders of respondents No.2 and 3 and objected to the maintainability of the writ petition, on the ground that the petitioner has an alternative remedy by way of filing application under section 561‑A, Cr.P.C. which is not only an alternative but an efficacious remedy. In this behalf reliance was made in the case of Sindh Quality Control Board of Drug and another versus Messrs Pioneer Laboratories, Karachi an4 6 others 1993 SCMR 1177. It was also argued that the original owner of the tractor/trolley Muhammad Shafi appeared before the Court and supported the version of respondent No.1 by saying that he sold the tractor/trolley to him which was the version contained in the F.I.R. He further submits that the petitioner if has any claim, he can file a suit where he can prove by evidence, his right to tractor/trolley and this course cannot be adopted in Constitutional jurisdiction of this Court. He further elaborates his arguments by saying that though original case was decided in favour of the petitioner wherein he was acquitted, as the prosecution could not prove his guilt yet it did, not decide title of the tractor/trolley, that is why, no order for custody of the tractor/trolley was made.

6. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. Undeniably, matter arising out of an order under section 561‑A, Cr.P.C. went before the Honourable Supreme Court by C. P. No. 1198/L of 1998 which was dismissed on 6‑3‑2002 and leave to appeal was refused for the reason that challan case was decided by the learned Magistrate, Section 30, Gujranwala, vide his judgment, dated 10‑5‑2001 acquitting the accused persons. Since proceedings which culminated into judgment of the Hon'ble Supreme Court, dated 6‑3‑2002 only related to interim custody, pending case/challan, those have no relevance for determination of custody of the tractor/trolley after the decision of the case. The petitioner, who filed a contempt petition before learned Additional Sessions Judge complaining non‑compliance of interim orders by the Hon'ble Supreme Court, dated 3‑12‑2001, was dismissed observing that the petitioner should approach the trial Court whereafter petition was moved for possession of tractor/trolley. This order will have the effect of giving the case property as, had it been given in the final judgment in the challan case. During trial, case property remained on 'Superdari' with respondent No. 1 which was undisputedly owned by Muhammad Shafi. Respondent No. 1 claims that he purchased it from Muhammad Shafi for a consideration of Rs.2,57,000 and paid him an amount of Rs.2,37,000 as earnest money and the remaining amount was to be paid within 10/12 days. Respondent No. 1 had obtained not only possession and the registration documents of the tractor but also got a receipt inscribed on a stamp‑paper, after paying the owner, the balance sale price after few days. According to version of respondent No. 1 Tariq Naveed managed possession of the tractor/trolley from his younger brother and on his refusal to return the tractor/trolley, the criminal case was registered vide F.I.R. No. 116, dated 15‑6‑1995. During trial of case, Muhammad Shafi, the original owner appeared as P.W. and stated that he sold the tractor with Registration No. BNA‑8150 to Allah Ditta, respondent No. 1 for an amount of Rs.2,57,

000. He also averred delivery of possession to respondent No.

1. It is also in the statement of P.W.1 Muhammad Shafi that Tariq Naveed obtained from him receipt showing sale of tractor in his favour, fraudulently. Since tractor was registered in the name of Muhammad Shafi, who materially, supported the stance of respondent No. 1 and he being a complainant in the case, both respondents Nos. 2 and 3 have taken a rightful view in the matter by handing over tractor/trolley to respondent No.1 and directing the petitioner to have recourse to civil Court, for determination of his title.

7. Controversy between both the claimants regarding ownership of the tractor can only be decided after recording of evidence and for this purpose, Civil Court is the proper forum. Adverting to assertions sof the petitioner that learned Magistrate who passed the order, dated 19‑10‑2002 had no jurisdiction over police station in question, as it did not fall within his competence on account of allocation of police station of the District by the learned District and Sessions Judge. This stand of the petitioner has no legal basis for the reasons that on the one hand the petitioner himself moved this application before Magistrate and did not object to this jurisdiction till the time, this petition was filed and waited for some favourable decision and on the other hand, powers of a Magistrate Section 30 are nowadays, with the learned Civil Judges under the control of this Court. It is a settled proposition that every Civil Judge has jurisdiction throughout the District where he is posted and on the basis of mere administrative distribution of work by the learned Sessions Judge, it cannot be said that the order if any, passed by him with regard to police station not given in his control, is without jurisdiction. In similar circumstances, sphere/limits of territorial jurisdiction fell for determination of Karachi High Court in the case or Jamil Ahmad v. Sayed Muhammad Ali and another PLD 1977 Kar. 901 and it was held that a Civil Judge posted in some District, has jurisdiction over the entire District. Allocation of specified areas for work by the learned District Judge is only for connivance arid administrative purposes. Similarly, acquittal of the petitioner from the criminal case by the learned Magistrate does not ipso facto prove that he is owner of the case property. He was acquitted for the reason that prosecution could not prove its ease or his guilt. Likewise, dismissal of respondent No.1's suit for declaration with regard to tractor/trolley in question, under Order IX, rule 4, C.P.C. due to non‑deposit of process fee, does not convey that the petitioner has been held to be an owner. Dismissal of suit under Order IX, rule 4, C.P.C. is no determination, n creates no title and does not deprive the plaintiff of the rights claimed in the suit because under these provisions plaintiffs has been given a right to have the suit revived or to file any fresh suit, on the same cause of action, subject to the period of limitation. The petitioner could not show, his possession even for a day, over the tractor/trolley and it is highly presumptive to hold that since he was given interim custody by the Hon'ble Supreme Court, he should be presumed to be in possession of it. The petitioner himself moved firstly to the learned Additional Sessions Judge, complaining contempt on account of non‑delivery of possession and thereafter he sought custody through .the application under adjudication.

8. It is no doubt amazing to file a Constitutional petition in criminal proceedings; in presence of remedy provided by the Criminal Procedure Code, 1898 by way of a petition under its section 561‑A, Cr.P.C. the Hon'ble Supreme Court while dealing with the case of Sindh Quality. Control Board of Drug and another versus Messrs Pioneer Laboratories; Karachi and 6 others 1993 SCMR 1177 mandated that exercise of Constitutional jurisdiction by the High Court in criminal prosecution, was not proper, particularly when remedy has been provided under relevant, statute. I, respectfully, following the view of the Honourable Supreme Court hold that this Constitutional petition is not maintainable and for this reason, besides the afore‑mentioned discussion; .direct that writ as prayed cannot be issued because both the respondents No.2 and 3 have passed lawful orders, within their competence. This petition has no merit in it and is consequently dismissed, with no order as to costs. M.A.W./T-5/L Petition dismissed.