P L D 1978 Karachi 934 (PLP)

Z. A. CHANNA, J.‑This constitutional petition assails an order passed in revision, under section 439‑A, Cr. P. ‑C., by a learned Additional Sessions Judge, Karachi, whereby he dismissed the revision application filed by the petitioner and upheld the order of a learned Additional City Magistrate, rejecting the application of the petitioner for the temporary custody to him of a car which was claimed by him.

2. The short point which falls to be considered in the instant case is whether the impugned order is amenable to correction by this Court in the exercise of its constitutional jurisdiction. The scope of the supervisory jurisdiction of the High Court under the Constitution came up for considera tion before their Lordships of the Supreme Court in Muhammad Hussain v. Sikandar (P L D 1974 S C 139). Muhammad Gul, J., who delivered the judgment on behalf of the Supreme Court, pointed out that the Constitutional jurisdiction of the High Court was assimilable to the revisional jurisdiction of the High Court under the Civil Procedure Code, under which the High Court has the power to interfere in its supervisory jurisdiction, if a subordinate Court has acted without jurisdiction or has failed to exercise its jurisdiction or in the exercise of its jurisdiction has acted illegally or with material irregularity. It was emphasized by the learned Judge, that it was "wholly wrong to consider that the above Constitutional provision was designed to empower the High Court to interfere with the decision of a Court or Tribunal of inferior jurisdiction, merely because in its opinion the decision is wrong", whether on facts or law. The learned Judge referred to the Privy Council judgment in the case of Nat Bell Liqueur Ltd. (1922 A C 128) where the facts were that on summary conviction by a Magistrate in a case in which no appeal lay, the conviction was set aside in certiorari by the superior Court, because in the opinion of the majority, the Magistrate had not kept in mind, as he should have done, the duty to receive a spy's evidence with caution. It was held by the Judicial Committee that in a case where Justice convicts without evidence that would not justify inter ference in certiorari.

3. Halsbury's Laws of England, Third Edition, Vol. II, paras. 268 to 272, lists the following grounds on which certiorari to quash the proceedings of a Judge or other officer of an inferior Court may be quashed :‑ "(1) Where the inferior tribunal has acted without jurisdiction," which may arise from the subject‑matter ; so that the inferior tribunal had no authority to enter upon the enquiry, or upon some part of it ; or from the absence of some essential preliminary proceeding, such as where the Court was improperly constituted ; (2) bias by interest ; where persons who have a direct interest in the subject‑matter of an inquiry before an inferior tribunal take part in adjudicating upon it . . . . . . .; (3) breach of the rules of natural justice ; a judicial decision reached by an inferior tribunal in violation of these rules, e.g. where a party is not' given a full and fair opportunity of being heard . . . . . . (4) fraud and perjury ; a decision of an inferior tribunal obtained by fraud or perjured evidence . . . . ; (5) a decision given in proceedings which are improperly brought before an inferior tribunal . . . . . . . ; and (6) a decision of an inferior tribunal which contains an error of law apparent on the face of the record . . . . ." In the instant case none of the above grounds are present.

4. Mr. Usman Ghani Rashid, the learned Additional Advocate‑General; contended that since the trial Court admittedly had discretion to give or not to give any property on supardnama under section 516‑A, Cr. P. C., and it having decided, in the circumstances of the case, not to give the property on supurdnama to the petitioner, and the matter having been concluded by the decision of the revisional authority, no scope for exercise of Constitutional jurisdiction remained. We are inclined to agree with his submission as interference in the said jurisdiction with an order of a Court is only permis sible where a subordinate Court or Tribunal has either exercised a jurisdiction which it did not possess, or exceeded its jurisdiction, or failed to exercise A jurisdiction which it is required to exercise, or in the exercise of its jurisdiction it has acted in material irregularity, and thereby its orders have become void or without lawful authority. As already pointed out, this is not a case which falls within any of the above classes, since admittedly the two lower Courts bad discretionary powers to direct the property to be delivered or not to be delivered on supurdnama to the petitioner, and this power was exercised on the basis of the material which was produced before them. It is wholly immaterial whether in exercising power they had arrived at a correct or erroneous decision.

5. Mr. Muhammad Ali Shaikh submitted that this was a case of failure to exercise jurisdiction by the two Courts below in that they were bound to pass an order for the custody of the car claimed by the petitioner, during the pendency of the trial of the case, and inasmuch as they bad failed to pass such an order, they had acted illegally and their failure to exercise jurisdiction was amenable to correction in writ jurisdiction. It may be pointed out that the claim of the petitioner is that a car, said to be belonging to him, which he had obtained from one Arbab Ali but was not yet registered in his name with the Motor Vehicle Authorities, was stolen on 14‑I 1‑1977, and in respect thereof be had lodged a report with the police. The car was subsequently recovered and the petitioner filed an application under section 516‑A, Cr. P. C., that its custody may be given to him pending decision of the case, but both the learned lower Courts declined to give him custody of the car as they were of opinion that he had failed to establish that he had any legal claim over the car.

6. 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 entitled 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. Mr. Muhammad Ali Shaikh cited before us a number of authorities to show that specially in the case of cars, trucks and properties of a similar nature, which are valuable and which were liable to be damaged, the Courts have invariably ordered that the said property should be given on supurdnama to the person entitled to the same. The learned counsel specially relied upon the decisions reported in 1974 P Cr. L J 452 ; 1973 P Cr. L J 288 ; 1970 S C M R 665 and 1976 P Cr. L J

747. He also relied upon the decision in Criminal Revision Application No. 140/1971, decided on 9‑4‑1973. In all these cases, except the case reported in 1976 P Cr. L J 474, the property in question was a car or a truck. In all these cases, the property was given on supurdnama to the person who was found entitled to the same. If we had been acting in the exercise of revisional jurisdiction we also would have been inclined to give the car on supurdnama to the petitioner on the basis of the documents which he has produced before us. But, as pointed out above, since we are acting in the exercise of our Constitutional jurisdiction and as it has not been shown to us that the two lower Courts have failed to exercise jurisdiction vested in them in law or have acted with material irregularity in the exercise of their jurisdiction we have found ourselves unable to interfere with the said orders.

8. This does not mean that the petitioner is entirely helpless until the case is finally disposed of. The two orders of the lower Courts are not judgments for the purposes of section 369, Cr. P. C., as held by the Federal Court of India in A I R 1949 F C 1, and by our Supreme Court in P L D 1970 S C

335. It will thus be open to the petitioner to file a fresh application under section 516‑A, Cr. P. C. for being given the temporary custody of the car, and if any such application is made, the learned trial Court will give due consideration to the documents produced in support of the claim and the authorities referred to in this judgment relating to temporary custody of property pending disposal of the case.

9. The car is presently in the custody of the Nazir of this Court. It should remain with the Nazir until the Courts below pass an appropriate order for its custody under section 516‑A, Cr. P. C. S. A. H. Petition dismissed.