1968 P Cr (PLP)

Custody-Car; subject-matter of dispute between parties- Pending criminal proceedings, ordered by Supreme Court, on con sent of both parties, to be placed into neutral custody-Penal Code (XLV of 1860), S.

420. A. R. Changez, Senior Advocate Supreme Court (Abdul Manan, Advocate Supreme Court with him) instructed by Salim Ahmad Malik, Attorney for Appellant. M. Anwar, Senior' Advocate Supreme Court (Razi Abbas, Advocate Supreme Court with him) instructed by Maqbool Ahmad Rana, Attorney for Respondent No. 1 Nemo for Respondent No.

2. Date of hearing: 13th March 1968. S. A. RAHMAN, C. J: With the consent of learned counsel for the parties this petition has been converted into Criminal Appeal No. 5 of 1968, as even an ad interim order on the petition would have decided the dispute between the parties, so far as this Court is concerned. The appellant Sarwat Hafiz is a dealer in cars. He sold an Opel Car on 9-7-1967 to one Ayaz Mahmood and executed a receipt (Exh. A) appearing at page 18 of the paper book. The receipt does not refer to the car by its registered number, though the engine number and its chassis number are given therein. The receipt further states that the appellant had received Rs. 19,000 by means of a post-dated cheque from the proposed transferee and had handed over the car to him but that until and unless the cheque was cashed the registration book of the car would not be handed over and the sale of the car would stand cancelled. On the 21st of July 1967, the cheque was dishonoured and it is the appellant's case that Ayaz Mahmood on being approached promised payment by 10th August 1967, but failed to keep that promise. On the 15th August 1967, a report was lodged with Police Station, Qila Gujjar Singh, by the appellant, at 11 a. m. that day that the car appears to have been sold away on a forged document. The car was seized by a Sub-Inspector at Multan the same day at 1 p.m. It is suggested by Mr. Changez on behalf of the appellant that this Sub-Inspector happened to be at Multan already in connection with another case and on communication of orders by telephone to him he took possession of the car from the factory premises of Abdul Wadood, the first respondent. It appears that on the 4th July 1967, the car was registered at Sahiwal in the name of one Muhammad Ali. The car number given therein was MY-2808. It is this registration document which is claimed to be a forgery on behalf of the appellant. It is pointed out in this connection that the No. MY 2808 belongs to a Morris Car of one Sheikh Muhammad Hussain of Montgomery. Muhammad Ali is said to have sold the car to one Daud Jan of Rawalpindi on the 22nd of July 1967, who in turn sold it two days later to Abdul Wadood, the first respondent. The question that arises for consideration is as to who is prima facie entitled to be handed over the custody of the car at this stage of the proceedings when the question of title is still to be determined. The High Court has set aside the order of the Magistrate, allowing the car to be placed in the custody of the appellant, in revision and has directed the appellant to hand over the car to the respondent within three days. Mr. M. Anwar on behalf of the first respondent, however, has stated before us that his client would be satisfied if, pending disposal of proceedings to be started in Court by the Police, the car is kept in neutral custody. His client, he says, would be prepared to pay the garage charges for the car during this interim period. Mr. Changez has accepted this offer on behalf of his client. We, therefore, allow the appeal and direct, in modification of the High Court's order, that the car may be produced day after tomorrow before the Deputy Registrar of the High Court who will send it for garaging to Kandawalas on the Mall, Lahore. The garage charges would be paid by the first respondent. Appeal accepted.