1997 P Cr (PLP)

RAJA MUHAMMAD KHURSHID, J.

This Intra-Court appeal is directed against the order of the learned Single Judge passed on 20-4-1995.

2. The facts leading to the Intra-Court appeal are that Imran Khurshid, a writ petitioner claimed to be an exclusive owner of Toyota Car Mark-II Model 1975 bearing Registration No.RIF-4175. It was given on monthly rent to Tahir Jamal, respondent No.3 in September, 1992 at the monthly rent of Rs.3,

000. The aforesaid respondent paid the aforementioned monthly rent till February, 1993 but thereafter disappeared alongwith the car. The matter was reported to the Police Station Rawalpindi Cantt. vide Report No.6, dated 9-9-1994. Meanwhile, father of respondent No.3 handed over the car to the appellant/ respondent No.2 namely Hameed Ahmad as security for the repayment of Rs.50,000 which was received as loan. This transaction took place on 6-8-1990. A number of points were raised before the learned Single Judge inter-alia contending that the car was a stolen property as the same was stolen by Tahir Jamal. A request for registration of the case was accordingly made. Previously, the car was taken to the custody by the police under section 550, Cr.P.C. and was delivered to Imran Khurshid, writ petitioner/respondent on "Superdari". Later on, it was cancelled by the Sessions Court simply on the ground that no case had been registered against any one. The car was, therefore directed to be given to a person from whom it was taken.

3. The present appellant appeared before the learned Single Judge and claimed the ownership of the car and admitted that the same was in his possession being its bona fide purchaser. The learned Single Judge after examining the documents such as registration book found that the aforesaid Hameed Ahmad was not recorded as owner and as such to avoid its misuse, it was directed to be delivered to the police till the legal remedy in this regard was availed by any claimant to it. Meanwhile, the car was to remain in the custody of the police till any person brought an order regarding its delivery from al competent Court. Besides that, the order for registration of the case was also made by the learned Single Judge.

4. In this Intra-Court - appeal, it is contended that the appellant was wrongly dispossessed of his car through a writ petition which was not competent in the eyes of law as the similar writ petitions were previously instituted and withdrawn without seeking permission to file fresh petitions on the subject. In this respect, references were made to Writ Petitions Nos. 1393 of 1994 and 1394 of 1994 which were dismissed as withdrawn without permission to file fresh petitions. Learned counsel for the appellant contended that admittedly - the provisions contained in the Code of Civil Procedure were applicable to the writ petitions while hearing them on the Constitutional jurisdiction. As such a reference was made to Order XXIII, Rule 1(3) of the C.P.C. to point out that since the previous writ petitions on the same subject were withdrawn without seeking permission to file fresh petition, therefore, the writ petition out of which this Intra-Court appeal has arisen was barred. Secondly, it was contended that the appellant was a bona fide purchaser for value of the car in question and that there was no justification for proceeding against him on the criminal side. During the hearing of C.M. No. 1751 of 1995, an order was made on 1-8-1995 that the S.H.O. Police Station Civil Lines, Rawalpindi, shall hand over the custody of the car to the applicant/petitioner i.e. the appellant. As such, the same was given to him.

5. The learned counsel for the appellant relied upon the above contentions to challenge the maintainability of the writ petition. On merits also the legality of impugned order was questioned. In addition to the above fact, it was contended that though the Police Station Civil Lines, District Rawalpindi, had registered a case under section 379, P.P.C. read with section 4 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 on 21-5-1995 vide F.I.R. No.287 of 1995 for an occurrence which took place on 6-12-1994 by showing against Column Nv.5 that the same was purportedly registered at the order of the Lahore High Court, Rawalpindi Bench yet both the parties agreed that it was not in line with the order passed by the learned Single Judge which is being impugned in the present Intra-Court appeal The aforesaid F.I.R. related to some other occurrence regarding the same car and as such, had no connection with Report No.6, dated 9-9-1994 registered with Police Station Rawalpindi Cantt. In fact, the case had to be registered in the light of the aforesaid report as was directed by the learned Single Judge.

6. After the disclosure of the above facts, it was directed to the S.H.O., Police Station Civil Lines, Rawalpindi that he should appropriately amend/correct the contents of Column No.5 of the F.I.R. No.287 of 1995 as the said F.I.R. was not registered on the order of the learned Single Judge.

7. Now coming back to the Intra-Court appeal on merit, we are of the view that there is no dispute with the principle that the provisions of the Civil Procedure Code are applicable, so far as those can be applied to the proceedings in the writ petitions. The same shall be true regarding the application of the principle of res judicata, which has been defined in section 11 of the C.P.C. It shall be proper to reproduce the aforesaid section for ready reference:-- "No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court."

8. The emphasis is on the words, which are underlined by us in the definition of res judicata reproduced above. As such, the earlier writ petitions were admittedly not heard and finally decided on merits, but were simply withdrawn. Therefore, the principle of res judicata would be hardly applicable to -ton-suit the writ petitioner, who had withdrawn it.

9. Coming back to the facts of the case, learned Judge has rightly settled the dispute between the parties relating to the car in question by making an order that the car shall remain in custody with the police till a decision is obtained by a rightful claimant from a Court of competent jurisdiction. The registration of the case was also rightly directed in the light of the facts disclosed in the writ petition pending before him. As such, the learned Single Judge had taken a just, legal, conscientious and unexceptionable decision The Intra-Court appeal is, therefore, without merits and the same is dismissed with the direction that the appellant shall deliver the possession of the disputed car to the S.H.O., Police Station Rawalpindi Cantt. immediately, who after taking its possession shall garage the same under lock and key and the key shall be delivered to the Illaqa Magistrate for safe custody. The S.H.O., Police Station Civil Lines, Rawalpindi shall make correction in the F.I.R. No.287 of 1995 in Column No.5 as pointed out above. Needless to say that the police station concerned having territorial jurisdiction shall register the criminal case as directed by the learned Single Judge without any further delay. The bona fide claimant who obtains possession order from the Court of competent jurisdiction shall be entitled to get back the car from the custody of the police. M.A.K./H-29/L Appeal dismissed.