2005 PLP 819 (YLR)

Date of hearing: 10th June, 2004. This order intends to dispose of the above captioned two writ petitions which admit common questions of law and facts.

2. Through these Constitutional petitions filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioners have sought for setting aside impugned orders, dated 5‑3‑2004 passed by the learned Area Magistrate and 6‑4‑2004 passed by the learned Additional Sessions Judge, Burewala whereby the applications filed by the petitioner Munir Ahmed as well as by Muhammad Akram respondent were dismissed.

3. Briefly narrated the facts giving rise to these Constitutional Petitions are that Muhammad Akram respondent and another jointly purchased the Harvester in dispute and later on dispute arose between the partners, whereupon said Shabbir Ahmed surrendered his rights, after settlement of accounts, through agreement, dated 9‑11‑2002. Thereafter he backed out from the above‑mentioned settlement and tried to snatch the Harvester from the possession of Muhammad Akram respondent whereupon he filed a civil suit, before the Civil Court at Okara seeking permanent injunction in respect of the Harvester in dispute. During the trial of said suit, the learned counsel for the petitioner made a statement that they will not snatch the Harvester through any illegal manner, then the suit was dismissed as having become infructuous vide order, dated 29‑1‑2004. Subsequently Munir Ahmed petitioner got registered a case vide F.I.R. No. 277, dated 10‑10‑2003 under section 395, P.P.C. at Police Station Gagoo, District Vehari against Muhammad Akram respondent. The local police conducted the raid and took into possession the Harvester in dispute from the possession of respondent whereupon the petitioner and the respondent tiled separate applications for the superdari of the Harvester before the Illaqa Magistrate who dismissed both the applications vide order, dated 5‑3‑2004. Feeling aggrieved both the parties went in revision petitions before the learned Additional Sessions Judge, Burewala which also met with the same fate, hence these petitions.

3. Learned counsel for Munir Ahmed petitioner vehemently argued that the impugned orders passed by the learned lower Courts are against law and facts; that the learned lower Courts were not justified while dismissing the applications of the petitioner for superdari of the Harvester in dispute. Further contended that Munir Ahmed petitioner is bona fide purchaser of the Harvester in dispute and the relevant documents are in his name, therefore, he is entitled for the superdari of Harvester Machine.

4. Conversely, learned counsel for Muhammad Akram respondent strongly repelled the contentions raised by the learned counsel for the petitioner contending that the Harvester in dispute belonged to Muhammad Akram which was under his use and occupation for the last about 1‑1/2 years; that Munir Ahmed petitioner intended to take the possession of the same by force whereupon the respondent tiled a suit for permanent injunction in the Civil Court at Okara against the petitioner wherein status quo regarding the possession of the Harvester was maintained; that thereafter a case was falsely registered against Muhammad Akram and others. Further contended that there is dispute between the parties regarding the rendition of accounts and Iqrar Nama Dastbardari was also written between the parties; that Munir Ahmed petitioner forged the bill of entry regarding the number of Harvester and the documents of custom are with Shabbir Ahmed who is related to him; that Harvester was purchased by Shabbir Ahmed and Muhammad Akram respondent from one Maqbool Ahmed, therefore, Muhammad Akram is entitled for superdari of the Harvester in dispute.

5. Arguments heard. Record perused.

6. Record reveals that though Munir Ahmed petitioner in order to prove his ownership over the Harvester, produced bill of entry to which the learned counsel for the respondent pointed out; during the course of his arguments that the number of Harvester has been found as 3205127 where digit 5 seems to be overwritten. On the contrary the Iqrar Nama produced by Muhammad Akram respondent, dated 19‑11‑2002 is between Shabbir Ahmed the relative of the petitioner and Muhammad Akram respondent. According to him it was purchased by them with equal share and subsequently the aforesaid Shabbir Ahmed withdrew his share in favour of Muhammad Akram respondent whereas the petitioner claims the ownership of Harvester on the basis of aforesaid documents i.e. bill of entry. Be that as it may, since both the parties claimed the ownership of Harvester in dispute and the title of the same cannot be determined by way of filing these Constitutional Petitions but instead of it the same can only be determined by producing evidence, therefore, in my view, the learned lower Courts have rightly directed the parties to approach to the Civil Court for declaration of the ownership of the Harvester in dispute. Since the Harvester is stated to be in the police custody it, in my view, till the decision of the title of the same by the Civil Court is likely to depreciate in value, by keeping in the Police Station. It is a well‑settled law that in such‑like circumstances the disputed property is to be handed over to the person from whom it was lastly recovered. Admittedly the Harvester was seized from the possession of Muhammad Akram respondent, therefore, I allow the interim custody of the same in his favour under section 516‑A, Cr.P.C. till the final decision regarding the title of the same by the Court of competent jurisdiction.

8. Consequently the Constitutional Petition No. 2309 of 2004 filed by Muhammad Akram respondent is allowed and the interim custody of Harvester in dispute is granted to him subject to his furnishing surety bonds in the sum of Rs.12,00,000 to the satisfaction of the learned trial Court. However, I find no merits in the Constitutional Petition No. 1634 of 2004 filed by Munir Ahmed petitioner which is accordingly dismissed. H.B.T./M‑746/L Petition dismissed.