2015 PLP 2271 (YLR)

MUHAMMAD ANWAR KHAN KASI, C.J.

This petition is directed against the orders dated 12-3-2014 and 2-6-2014, passed by learned Judicial Magistrate and learned ASJ-V-[West]-Islamabad, respectively whereby application for interim custody respecting vehicle bearing No. LEB-8045, filed by the petitioner, was dismissed while revision petition met the same fate.

2. Precisely, relevant facts are that vehicle in question was impounded by the Staff of Police Station Margalla, under Section 550, Cr.P.C. from the possession of present petitioner and was subjected to FSL examination pursuant to which it was found cut and welded.

3. Present petitioner and rival claimant i.e. respondent No.2 moved separate applications for interim custody of the said vehicle before the learned Judicial Magistrate which were turned down vide order dated 12-3-2014.

4. Both the sides, then filed separate revision petitions which were dismissed vide consolidated order, dated 2-6-2014 by the learned ASJ, hence this petition.

5. Learned counsel, in support of this petition, submits that both the learned Courts failed to consider the important aspect that petitioner was bona fide purchaser and last possessor of the vehicle in question, therefore, his case was on better footings than that of respondent No.2.

6. It is further submitted that the respondent No.2 by concealing the material facts filed another application for superdari before the learned Judicial Magistrate which was allowed vide order dated 4-10-2014.

7. According to him, the subsequent order of the learned Judicial Magistrate is patently illegal and is result of excess of jurisdiction as interim custody of the vehicle was already turned down not only by the learned Judicial Magistrate but also by the learned Sessions Court and that too in presence of pendency of this petition.

8. Learned counsel further submits that this Court under section 561-A, Cr.P.C. has ample powers to annul arbitrary exercise of jurisdiction or where patent illegality is apparent. In support of his submissions, learned counsel referred case-laws cited as "Munir Ahmed v. Barkhurdar and others 1992 SCMR 1454 [Supreme Court of Pakistan], Muhammad Ramzan v. Fatima and 30 others PLD 2004 Lahore-17, Muhammad Shafi v. Additional Sessions Judge, Kharian District Gujrat and 8 others PLD 2011 Lahore 551, Mst. Amina Bibi v. Attaullah Wazir and 3 others 2011 CLC 384, Hafiz Muhammad Jaffar v. Muhammad Ameer and 6 others 2011 CLC 1556 (Lahore), Rustam Ali v. Ali Muhammad 2008 CLC-1561 [Nothern Area Chief Court], Chand Bagh Foundation through Authorized Representative v. Messrs Rehman Brothers (Pvt.) Ltd., through Chief Executive 2007 CLC 751 [Lahore] and Abdul Rasheed v. Lateef-ur-Rehman and others 2004 CLC 1633 [Peshawar]".

9. Learned counsel for rival claimant/ respondent No.2 repelled the above submissions by stating that the actual facts are not properly narrated by the learned counsel for petitioner. Explaining his argument, learned counsel submitted that respondent No.2 is lawful and real owner of the vehicle which was purchased by him through open transfer letter. Said vehicle was stolen in the year 2011 regarding which respondent No.2 lodged an FIR at Police Station Industrial Area, Islamabad. Subsequently, after the arrest of an accused, Staff of Police Station Industrial Area took the custody of vehicle in question in connection with the said FIR as a case property whereafter petitioner himself moved application for its interim custody which was allowed vide impugned order dated 4-10-2014.

10. According to learned counsel, nothing was concealed from the Court and there is no illegality in the subsequent order of the learned Judicial Magistrate. Learned counsel also asserted that respondent is ready to surrender the vehicle to the custody of the State till the decision of case by the learned Trial Court. He, therefore, prays for dismissal of this petition.

11. Learned Deputy Attorney-General on the other hand, stood behind the impugned orders.

12. Heard and record perused.

13. Case in hand contains rare circumstances as vehicle in question is subject of two FIRs. The FIR No.259, dated 2-7-2011 was registered at Police Station 1-9, Islamabad, under section 381-A, P.P.C. on the complaint of respondent No.2 namely Sajid Abbasi, whereas the second FIR bearing No. 185 dated 1-3-2014 was registered at Police Station Margalla, Islamabad under sections 420, 468, 471, 424/201 /109/34, P.P.C. on the complaint of Shakeel Ahmad, SI as it was found cut and welded from the possession of present petitioner.

14. Initially it was taken into possession on 3-2-2014 by the police of Police Station Margalla on the disclosure of accused Jahanzeb Khan from the possession of present petitioner vide Rapat No.51, Under Sections 550/553, Cr.P.C. It was subsequently got checked from FSL on 6-2-2014 and vide Report No. 129/2014, its engine number and chassis number were found tampered and registration book was also found bogus after verification from the ETO, Office Lahore.

15. On 1st of March, 2014, respondent No.2 came forward for its custody on the ground that the same was stolen property of case FIR No. 259/2011 got registered by him at Police Station Industrial Area, Islamabad by claiming it to be the same vehicle. The learned Judicial Magistrate after taking into consideration the attending circumstances rejected both the applications and the learned ASJ dittoed the order in original.

16. Subsequently, respondent No.2 moved another application for interim custody of the same vehicle in FIR No. 259/2011 which was allowed by the learned Judicial Magistrate Section 30, vide order dated 4-10-2014 subject to furnishing surety bond of Rs.5,00,000 (Five Lacs).

17. After carefully evaluating the entire material including the police record made available at the time of final hearing, it came to light that none of the claimants i.e. neither the petitioner nor the respondent No.2 retains titled documents of the vehicle in question in their favour and the respondent No.2 though possesses different registration books, yet his claim of ownership is based on an open transfer letter which, in no way can be termed as a title document in his favour.

18. The second aspect of the case is that the learned Judicial Magistrate and learned ASJ while rejecting applications of both the claimants have taken into consideration the fact that the same was involved in case FIR No. 259/2011 and that the respondent No.2 is claiming his ownership, but both of them were refused custody for the reasons that the vehicle was found tampered after chemical treatment and that registration book being relied upon by the respondent No.2 does not match with engine number and chassis number. Record verifies that request of the respondent No.2 had already been turned down, therefore, there was no justification for filing of second superdari petition in case FIR No. 259/2011. Perusal of order dated 4-10-2014 reveals that the same was obtained by concealing the material facts as respondent No.2 in his petition did not state anything about FIR No. 185/2014 and dismissal of his two applications by the learned Judicial Magistrate of Police Station Margalla as well as by the learned ASJ.

19. As mentioned in earlier part of the findings, since the vehicle in question was subject of the two separate FIRs, there was no justification with the police to release the same pursuant to order dated 4-10-2014 as the same relates to FIR No. 259/2011 whereas in FIR No. 185/2014, its custody was refused by the learned Judicial Magistrate and by the learned ASJ, as well.

20. In view of above discussion, both the impugned orders are found well reasoned and do not contain any illegality or gross irregularity. The same are upheld.

21. The question left to be determined is as to what would be the fate of subsequent order dated 4-10-2014 as there is an impediment that judicial proceedings could not be quashed by the High Court by exercising powers under Article 199 of the Constitution. To overpass the obstacle, while taking guidance from law set in Hafiz Muhammad Iqbal's case [2009 PCr.LJ 934], this constitutional petition is converted into application under section 561-A, Cr.P.C. and the order of the learned Judicial Magistrate dated 4-10-2014 being result of concealment of facts and per incuriam is set aside.

22. It goes without saying that in presence of two successive orders in case FIR No. 185 of 2014, which are still intact, the custody of the vehicle in question could not have been handed over to the respondent No.2 pursuant to order dated 4-10-2014 as even if custody of the vehicle was allowed in FIR No. 259/2011, even then it was rejected in FIR No. 185/2014.

23. Copy of this order be sent to the I.G., ICT with direction to hold a departmental inquiry against the responsible. He is also directed to take into custody the vehicle in question forthwith. Learned MIT is also directed to impart necessary instructions to all the learned Judicial Magistrates to remain vigilant while dealing with applications for temporary custody of the vehicles and shall also ensure a note at the foot of the application with an affidavit to the effect that no application for interim custody was earlier filed or if filed, it was accepted/rejected.

24. Petition stands disposed-of in above terms. MH/67/Isl Order accordingly.