1995 P Cr (PLP)

6. Mr. S.M. Masud, learned counsel for the petitioner has contended that the petitioner is admittedly the owner of the truck. It was given to respondent No.3 on the conditions already referred to above. Since he failed to deposit the monthly instalments in the Bank for several months nor did he pay the profit to the petitioner, therefore, the truck was brought back by him from the Adda on 27-10-1994, as he himself was its driver. The truck was illegally and forcibly taken away by the police at 10 p.m. on 28-10-194 from the house of the petitioner. He has referred to the Daily Diary Report No.43 which in fact is the report made by Sultan Ahmad, Sub-Inspector on 28-10-1994 at 12-45 (night time), in which he reported that in pursuance of the complaint of Muhammad Yousaf he went to the house of Muhammad Ramzan to verify the facts but he was not available at his house, therefore, the truck which was standing on the roadside was taken into possession by the police. It is further mentioned in this report that the truck was not found by him to have been forcibly snatched by the petitioner nor commission of any cognizable offence had been committed. The relevant portion of this report reads as under:--

7. Learned counsel then referred to the recovery memo of the truck, which has been prepared by Sultan Ahmad S.I. and has been witnessed by Muhammad Asghar and Nawab Khan who are the employees of respondent No.3. This memo has been prepared with reference to report No.43 referred to above. He has pointed out that according to this report the truck was taken into possession at 12-45 (night time) on 29-10-1994 while the complaint made by respondent No.3 shows that the truck was allegedly snatched away by the petitioner at 3 o'clock during the night on 28-10-1994. It means that the alleged occurrence took place 2-1/2 hours after the recording of report No.43. He also invited my attention to the fact that the recovery memo has been prepared with reference to report No.43 while this report itself shows that the truck had already been taken into possession by Sultan Ahmad Sub-Inspector. According to the learned counsel, if the truck had been seized prior to the recording of report No.43, then there could be no reference in the recovery memo of report No.43. Highlighting the discrepancy in the alleged time of occurrence and the contents of the recovery memo and report No.43, he has vehemently contended that these documents have been fabricated after the institution of the writ petition with a view to show that the truck had been seized validly under section 550, Cr.P.C. He has further lamented that when the Sub- Inspector came to the conclusion that the truck had not been snatched away and no cognizable offence was committed there was no justification in law for him to have seized the truck parked in front of the house of the petitioner. In these circumstances, he has contended that the seizure of the truck by the police being without jurisdiction and mala fide, this Court can direct its delivery back to the petitioner.

8. Malik Saeed Hassan, learned counsel for respondent No.3 has, on the other hand, submitted that the truck was purchased by his client from the petitioner. An amount of Rs.3,00,000 was paid in lumpsum, Rs.1,00,000 in instalments and only an amount of Rs.1,00,000 remained to be paid to him. He has shown the Pass Book of the Bank, according to which a sum of Rs.2,58,000 has been paid in instalments to the Bank the last payment was made on 25-8-1994. He has also shown, the argument entered into between the petitioner and respondent No.3 regarding the sale of the truck (this agreement has been disputed by Mr. S.M. Masud on the ground that it is forged one). Malik Saeed Hassan has contended that in pursuance of the complaint made by respondent No.3 that the truck had been forcibly snatched away by the petitioner, the truck was validly seized by the police during the investigation of the case. He has submitted that the police can investigate the case even without registration of the case. In this behalf he has placed reliance on the following precedents:-- "(1) Muhammad Riaz and 3 others v. The State PLD 1994 Pesh.102, (2) M. Bashir Saigol and another v. The State PLD 1964 Lah.148, (3) Emperor v. Khawaja Nazir Ahmad AIR 1945 P.C. 18."

9. Learned counsel also informed that a suit has been filed by his client against the petitioner regarding ownership of the truck, in the Civil Court.

10. After hearing the arguments of the learned counsel for the parties and perusing the report submitted by the S.H.O. alongwith its enclosures (report No.43, complaint made by Muhammad Yousaf, recovery memo. statement of Sultan Ahmad, S.I.), I am of the opinion that the police has not acted in accordance with law, while dealing with this case. Contents of report No.43 show that the truck was seized prior to the recording of the report but the recovery memo has been prepared with reference to report No.43. While the recovery of the truck is stated to have been made as per report at 12-45 in the night, the truck was allegedly snatched away by the petitioner at 3 o'clock in the night i.e. subsequent to the recording to the report. This makes the whole matter doubtful.

11. Be that as it may, it is an admitted position that the truck belongs to the petitioner who entered into an agreement with respondent No.3 and delivered the possession of the truck to him. One of the terms of the agreement was that the Bank instalments would be paid by respondent No.3. This is not for me to give any finding whether any amount was paid in cash to the petitioner or not, because this matter is sub-judice in the civil suit between the parties and any finding made herein is likely to prejudice the case of either party. However, from the Pass Book shown to me by Malik Saeed Hassan it is apparent that no instalment has been paid to the Bank by respondent No.3 after 25-8-1994. It was on this account that the petitioner appears to have obtained back the possession of the truck from respondent No.3. It is also admitted that the truck was taken into possession by the police from outside the house of the petitioner. Therefore, the truck was in possession of the petitioner when it was seized by the police.

12. The case of the respondents is that the 'truck was seized by the police under section 550, Cr.P.C. I summoned the police record on 12-6-1995 to ascertain whether any report regarding the seizure of the truck was made by the police to a Magistrate, under section 523, Cr.P.C. Mr. Muhammad Masood Chishti, learned Assistant Advocate-General after scrutinizing the record brought by an official of the Baghbanpura Police Station informed that no report had been made to a Magistrate as required under section 523, Cr.P.C.

13. Following questions arise in this case for determination:-- (1) Whether seizure of the truck by the police was lawful. (2) Whether parties should be directed to approach the Magistrate for obtaining delivery of the truck, under section 523, Cr.P.C. (3) Whether, in the circumstances of the case, this Court can direct the police to deliver possession of the truck to the petitioner or respondent No.3.

14. Section 550, Cr.P.C. confers powers on Police Officers to seize property which is suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence. When a property has been seized by the police under section 550, Cr.P.C. as aforesaid then the seizure has to be forthwith reported to a Magistrate under section 523, Cr.P.C. The Magistrate to whom the matter has been reported is required to make order respecting the disposal of the property or delivery of such property to the person entitled to its possession. The aforesaid two sections are reproduced below:-- "Section 550.

Any Police Officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence. Such Police Officer, if subordinate to the officer in charge of a police station, shall forthwith report the seizure to that officer. Section 523

Procedure by police upon seizure of property taken under section 51 or stolen. (1) The, seizure by any Police Officer of property taken under section 51, or alleged or suspected to have been stolen, or found under circumstances which create suspicion of the commission; of any offence, shall be forthwith reported to a Magistrate, who shall make such order as he thinks fit respecting the disposal of such property or the deliverer of such property to the person entitled to the possession thereof, or, if such person cannot be ascertained, respecting the custody and production of such property. Procedure where owner of property seized unknown. (2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit. If such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation." The provisions, contained in section 523, Cr.P.C. make it obligatory on the part of the police to report the seizure of the property to a Magistrate forthwith. This means that the report to the Magistrate should be made with all reasonable dispatch. The seizure should ordinarily be reported to the Magistrate on the same day or if on account of any unavoidable circumstances, police gets engaged in some other matters of urgency, such as law and order situation, the reporting can be deferred for a day or two, depending on the circumstances of each case. But the delay in reporting the matter to the Magistrate, has to be reasonable and capable of being explained. In the instant case, the truck was seized in the very early on 28-10-1994 but no report has been made by the police to a Magistrate under section 523, Cr.P.C. No circumstance has been suggested to explain as to why the seizure of the truck could not be reported forthwith to a Magistrate. In view of these circumstances the irresistible conclusion is that seizure of the truck by the police is illegal. If the police does not report the seizure made by it to a Magistrate, the seizure itself become illegal and the movable property seized has to be returned to the person from whom the recovery is made. Such a proposition came up for discussion in Fazal v. Incharge CIA. Staff Gujranwala. 1976 PCr.LJ 730 Shafur-Rahman, J., as his Lordship then was, held as under:-- There is no indication that he had reasonable suspicion of the property being stolen property. He did not follow the law after making such seizure inasmuch as he failed to follow the law applicable and contained in section 523, Cr.P.C. The seizure of the cattle was therefore, illegal and so was the retention of the cattle by the respondents in his possession without reporting the same to the Magistrate. In the circumstances, the petition is allowed with costs. The property recovered to be resort d to the person from whom recovery has been made. If any case has been registered after the recovery of the stolen property from the petitioner the respondent would be free to deal with the property covered by such a case in accordance with law."

15. From the above discussion it is clear that a Magistrate can make an order respecting the delivery of the property seized to the person entitled to the possession thereof, or its disposal, if the seizure of the property has been reported to him under section 523, Cr.P.C. The condition precedent for the exercise of such power by a Magistrate is that the matter should have been reported to him by the police. If no report under section 523, Cr.P.C. is made to a Magistrate then he will have no jurisdiction to make an order for disposal of the seized property or delivering it to a person entitled to its possession. Since in the present case, neither any case stands registered nor the seizure of the truck has been reported to a Magistrate, as required under section 523, Cr.P.C., the petitioner or for that matter respondent No.3 cannot be asked to approach a Magistrate for obtaining order for delivery of the truck. I have already taken the view that the seizure of the truck under section 550, Cr.P.C., by the police was illegal for the reason that the seizure was not reported to a Magistrate under section 523, Cr.P.C. Additionally, I find that report No.43 aforesaid clearly mentioned that the truck was not found to have been forcibly snatched nor commission of any cognizable offence had been committed. Therefore, the police was not justified in seizing the truck under section 550, Cr.P.C. from possession of the petitioner at that stage.

16. For what has been discussed above, the seizure of the truck by the police on 28-10-1994 from outside the house of the petitioner is declared to be p without lawful authority and of no legal effect. It is further directed that respondent No.1 shall deliver back the truck to the petitioner from whom it was recovered. However, the prayer for registration of case against the police is declined. In this view of the matter, the writ petition stands partly accepted, with no order as to costs.

17. Before parting with the case, it is clarified that the parties may avail of such legal remedies as are available to them, in accordance with law. Nothing said herein will prejudice the case of either party before the Civil Court or any other forum. N.H.Q./M-2547/L Order accordingly.