1985 P Cr (PLP)

(c) Constitution of Pakistan (1973)‑‑-- ‑‑‑Art. 199‑‑Constitutional jurisdiction‑‑Erroneous view taken by trial Court or revisional Court regarding disposal of application for custody of disputed property, held, could not attract constitutional jurisdiction of High Court. Malik Ata Muhammad v. The State and another 1970 P Cr. L J 875 and Ch. Muhammad Farook v. The State and another 1970 P Cr. L J 1253 approved. Muhammad Yousaf v. Muhammad Iqbal and 3 others P L D 1979 Kar. 430 ref. Sh. Nasim Hassan for Petitioner. Muhammad Nasir Abbasi for Respondents. Date of hearing: 22nd May, 1985. One Muhammad Saleem was accused of defrauding Muhammad Boota and Masood Butt respondent No.1 of a sum of Rs.4,00,000 and two Scooters. During the investigation of the case the Police recovered a Scooter LEW 5639 from Maqbool Hassan petitioner. The same Scooter had earlier been registered as LEU 6274. Masood Butt had earlier purchased this Scooter from M. Saleem but later on after having been borrowed by Saleem this Scooter changed many hands until it was purchased by Maqbool 1lirssan petitioner from one Khalid Mahmood. The matter of temporary custody of the Scooter arose before a Magistrate and he vide his order, dated 19‑7‑1979 directed that the Scooter be given on Superdari to Masood Butt, respondent No.1 who was the earlier purchaser of the Scooter. Maqbool Hassan petitioner challenged the orders in revision but the revision petition was dismissed by the learned Additional Sessions Judge, Lahore on 16‑10‑1979. In the constitutional petition the petitioner has raised the plea that under section 523, Cr. P. C. he alone was entitled to receive the Scooter on Superdari.

2. Under section 523 of the Cr.P.C. the Magistrate can pass an order as he thinks fit for delivery of the property to the person entitled to its possession. In the present case, to all appearances, both Maqbool Hassan and Masood Butt might be entitled to its custody as both of them had purchased this Scooter at different occasions for valuable consideration. Masood Butt, being earlier purchaser would have a preferential claim as compared to Maqbool Hassan petitioner. The orders of the Magistrate and subsequently those of the Additional Sessions Judge, therefore, do not suffer from want of authority.

3. The learned counsel for the petitioner has referred me to the case of Malik Ata Muhammad v. The State and another 1970 P Cr. L J 875 and Ch. Muhammad Farook v. The State and another 1970 P Cr. L J 1253, in order to show that interim custody should normally be handed over to a person from whom the property is recovered". In the present case Maqbool Hassan petitioner would have a good case for Superdari as he himself is the innocent victim of having been stolen Scooter. But between him and Masood Butt respondent Masood Butt will have preference being earlier purchaser from Saleem accused. In this regard, reference may also be made to the case of Muhammad Yousaf v. Muhammad Iqbal and 3 others P L D 1979 Kar. 430, where it was held that erroneous view taken by the trial Court or revisional Court regarding the disposal of application for custody of disputed property cannot attract the constitutional jurisdiction of the High Court. In view of the above consideration I find no merit in the writ petition. It is dismissed with no order as to costs. H.A.K. Constitution petition dismissed.