P L D 1971 Karachi 906 (PLP)

On 20th August 1969, two days before the submission of challan against Firdous for an offence under section 406, P. P. C. the rickshaw was given in interim custody by a learned A. C. M., Karachi, on superdari to the applicant as it was alleged to have been sold to him by Firdous, for Rs. 1,750.C

0. On that very date, an application was presented by the respondent No. 2, for the restoration of the rickshaw to him on superdari, on which the following order was passed. "The rickshaw in question is delivered on superdiginarna to Zardullah Khan, from whose possession it was recovered by the Police." During the trial a number of witnesses were examined from the side of the prosecution, including the respondent No. 2 and the applicant. The case was then transferred to the file of the A. C. M. 29, Karachi. Firdous absconded on 24‑9‑1970 and as there was no immediate prospect of arresting him, the evidence of the remaining witnesses was recorded under the provisions of section 512, Cr. P. C. It appears, that another application was presented before the learned Magistrate, by the respondent No. 2, for the return of the Rickshaw to him. Notice was issued to the applicant and after hearing the counsel for the parties, the learned Magistrate, on 12‑12‑1970, inter alia passed the following order. "Since the case is over and being kept on dormant file under section 512, Cr. P. C. this Court has power to make an order for disposal under section 517, Cr. P. C. Abdur Rehman (P. W. 1) has been examined and cross‑examined. From his evidence, the ownership of rickshaw is proved. Firdous accused had therefore no right to sell to Zardullah. Under these circumstances hold Abdur Rehman the owner of rickshaw. Zardullah may file civil suit to recover the amount he has paid to Firdous. Rickshaw No. KAU‑1368, is hereby given to Abdur Rehman." Aggrieved by this order, the applicant filed a Revision Application which was heard by the learned IVth Additional Sessions Judge, Karachi, who on 6‑1‑1971 dismissed it. Mr. Mohammad Shibli, learned counsel for the applicant contended that the learned Magistrate, could not review the order passed by his predecessor, restoring the possession of the rickshaw to the respondent No: 2 and the learned Magistrate was in the wrong to have proceeded under section 517, Cr. P. C., which could be attracted, only at the end of the trial, which had yet to be concluded. He further contended, that even if it be found that the learned Magistrate had passed the subsequent order under section 516‑A, Cr. P. C., as was opined by the learned Additional Sessions Judge, the question of title could be considered only by a Court of Civil Jurisdiction. All that was open to the learned Magistrate was to restore it to the person, who was entitled to its possession. It is a trite proposition of law that, where any property regarding which any offence appears to have been committed is produced before a criminal Court, the same can be disposed of at three different stages. (1) Section 523, Cr. P. C. deals with cases, where a property is seized by the police under section 51, Cr. P. C. or is alleged or suspected to have been stolen or found under circumstances which create suspicion of the commission of any offence. If the person entitled to its possession is known the Magistrate may order the property to be delivered to him on such condition as he thinks tit. If such person is unknown, the Magistrate may detain it and issue a proclamation specifying the articles of which such property consists and requiring any person who has claim thereto to appear before him, and establish his claim within six months from the date of such proclamation. This section applies even though there has been no inquiry or trial. (2) Under section 516‑A, Cr. P. C. the Court has the power to make such order as it thinks fit for the proper custody of such property, pending the conclusion of the inquiry or trial and (3) under section 517, Cr. P. C. on the conclusion of an inquiry or a trial. The first order dated 20‑8‑1969, was patently passed under section 523, Cr. P. C. as at that time even the charge‑sheet had not been submitted. It is also clearly made out that it was passed ex parte, as a separate order was passed on the application of the respondent No. 2 which had been presented by him on the very day that the order was passed. The impugned order was passed after a considerable time and after a number of witnesses had been examined by the prosecution. It is also made out that the accused in the case i.e. Firdous had jumped the bail, and in the circumstances of the case, the learned Magistrate to whom the case had been transferred, was fully competent to pass a fresh order, after hearing the concerned parties. That was done. There are authorities, to the effect that even an ex parte order passed under section 516‑A, Cr. P. C., is only an interim order subject to vacation or A variation or confirmation, after hearing the parties concerned (see Ramchtsing v. Deoji Kalyanji (A I R 1942 Born. 42). I, therefore, find no merit in the contention advanced. As for the second contention, Mr. Shibli's grievance seems to be well founded. The learned Magistrate, does not seem to have applied his mind to the provisions of section 517, Cr P. C. at all, it comes into play only on the conclusion of an inquiry or trial. Admittedly the trial had not concluded, but was in a state of suspended animation. The statements of the remaining witnesses, had been recorded under the provisions of section 512, Cr. P. C., so that the same could be brought on the record if any of the witness was dead or not easily traceable, for the completion of the trial of the accused in the event of his arrest. Even on the conclusion of the trial, the scope of power is limited to the disposal of the property produced before the Court, or regarding which any offence, appeared to have been committed, by delivery to "any person claiming to be entitled to possession thereof." Obviously entitlement to possession cannot be equated with ownership. The question of title as observed in Central Co‑operative Bank V. Ahmad Bakhsh (P L D 1970 S C 343) can be decided only by the ordinary civil Court of competent jurisdiction. If the question of title could not be examined under section 517 Cr. P. C., which is after the conclusion of an inquiry or trial, certainly it could not a one, at an earlier stage. i.e. pending inquiry or trial or before of the charge-sheet. In re: Kuppamma, (I L R 29 Mad. 375) Malik Ata Mohammad v. The State (1970 P Cr. L J 875), U. Ba Haling v. Balabux Sadani (A I R 1937 Rang. 42). Tne Lahore Race Club v. The State (P L D 1968 Lah. 185), Babu Ram v. Emperor (A I R 1942 Oudh 128), Yaru v. Emperor (A I R 1924 .Sand 316), Sh. Mukhtar and others v. The State (A I R 1954 Cal. 350) and Ganeshi Lal Ranchoddas Mahajan and another v. Satya Narian Tiwari and another (A I R 1958 Madh. Pra. 39) make that abundantly clear the circumstance in which this principle could be departed from, were of an exceptional nature like a thief running away, leaving the property seized behind, an accuse disclaiming, the Property protesting that it had been foisted upon him, or a property found in possession of a servant or agent of the rind al owner and the fact of employment agency being admitted . That is not the case here. The learned Additional Sessions Judge, sought reliance from the case of A. K. A. R. A. Chettyar v. Ma Saw Hla (A I R 1937 Rang. 450). The facts involved were that some golden bowls, belonging to Dr. Maung Maung and his wife were stolen away and pledged with a firm. These were presents given to them on the occasion of their marriage and their names were inscribed thereon. The stand adopted by the pledgee firm was inconsistent in the different applications made by them. The finding was "it appears to me in the present case, that it is an indisputable fact, that these golden bowls were stolen from Dr. Mating Maung & Ma Saw Hla, at least the applicant cannot dispute it." It was in this context that the observations were made that "when t e known facts plainly show that the property has been stolen. it would be intolerable to allow the person m whose possession the property is found to retain it as against the rightful owner and force the latter to a civil suit for its recovery if the accused absconds." That will have no bearing with the facts in the instant case. The learned Additional Session Judge was of the view that even the applicant admitted the ownership of the respon dent No. 2, and therefore the order of the learned Magistrate was not open to any exception. That is not a correct assessment of the situation. The application made out that he was a bona fide purchaser from Firdous, Firdous had told him that he had got it from Rehman. Firdous apart from executing the receipt, had given him documents from Abdur Rehman an one Zakaria. It is admitted by the respondent No. 2, that the registration of the rickshaw, at all material times, remained in the name of the said Zakaria. It is not denied that the name of Zakaria still remains on the record of the relevant authorities. The a applicant had stated in his deposition that he had made the purchase after checking a al the records maintained by the Police Department, It is also not without significance that the was never arrested by the police and was examined as a prosecution witness. It is also not denied that he was in possession of the rickshaw for quite some months and the same was secured from Gul Faraz who was plying it on his behalf. If the applicant pressed his claim as a bona fide purchaser, and if the rickshaw was secured from his possession which is admitted on all hands, the learned Magistrate had no option but to continue its custody with him and not to order its restoration to the respondent No.

2. I am therefore clearly of the opinion that the order of the learned Magistrate dated 12‑12‑1970 was unsustainable. The only course open to the respondent No. 2 would be to seek his remedy from a civil Court of competent jurisdiction. It was urged by Mr. Aziz, learned counsel for the respondent No. 2, that if the rickshaw, was allowed to remain with the applicant, and continued to be plied, it was bound to outlive its utility due to constant wear and tear and in the possible event of a final verdict in favour of respondent No. 2, the loss suffered by him would be irreparable. To allay the appre hensions of the respondent No. 2 and in the possible event of the acceptance of his claim, the applicant is directed to furnish security in the sum of Rs. 4 000.0 which is the amount of purchase money as stated by the respondent NO, 2 to the satisfaction o the Magistrate concerned the security would be furnished within six weeks from today. In case of default, the order would be withdrawn. In the result, I would set aside the impugned order and allow the revision application. K.B.A. Petition accepted.