2014 PLP 90 (MLD)

ABDUS SATTAR ASGHAR, J.

By virtue of this single order I intend to dispose of the this writ petition, as well as Writ Petition No.229-2011 (Muhammad Tariq v. S.H.O., and others) involving same question of law and facts.

2. Brief facts leading to these constitutional petitions are that Ghulam Yasin (to be called hereinafter as petitioner) lodged F.I.R No.855 of 2010, dated 11-11-2010, under section 420, P.P.C., at Police Station Jatoi, District Muzaffargarh against three unknown persons alleging that his truck/vehicle bearing Registration No.3289/PRM was snatched sometimes ago by three unknown persons; that now it has come to his knowledge that his vehicle is on the road bearing Registration No.2886/OK, which is a bus running on Jatoi Alipur Road; that the body of truck has been changed and converted into Bus with the connivance of M.V.E. and E.T.O.

3. During investigation, the disputed vehicle has been recovered from one Muhammad Tariq (to be called hereinafter as respondent). Petitioner and respondent both lodged applications for Superdari before the Magistrate Section 30, Jatoi. Learned Magistrate Section 30 after obtaining reports from the S.H.O. and Forensic Science Laboratory with regard to Engine number and Chassis number of the vehicle dismissed the application of Muhammad Tariq respondent and allowed the application of Ghulam Yasin petitioner to hand over the disputed vehicle on Superdari to him subject to furnishing surety bond to the tune of Rs.10,00,000 (rupees ten lacs) with one surety in the like amount to his satisfaction vide order dated 15-12-2010. Being aggrieved Muhammad Tariq respondent preferred an appeal against order dated 15-12-2010 before the learned Additional Sessions Judge Jatoi, which was disposed of vide order dated 23-12-2010 in the following manner:-- "In these circumstances I think it proper that till the final disposal of case the vehicle should remain in the possession of Police. However, the parties are at liberty to file civil suit to prove their ownership. Moreover presently Tariq applicant is also not owner of the Vehicle. He has only a transfer letter in his favour. The original owner is some Wazeer. As the engine number and Chassis number are not the same as mentioned in the Registration book of Ghulam Yasin and mentioned in the report of Forensic Science Laboratory, therefore, the order passed by the learned trial Court dated 15-12-2010 is set aside. With these observations this appeal is disposed of. The copy of this order be sent to the learned trial Court and S.H.O. Police Station Jatoi for information and compliance in accordance with law." 3-A. Ghulam Yasin petitioner has assailed the order dated 23-12-2010 while invoking the constitutional jurisdiction of this Court through this petition on the grounds that learned Additional Sessions Judge had no jurisdiction to pass' the impugned order as order of a Magistrate granting Superdari is not appealable; that a length of time is required to get establish ownership of the disputed vehicle by filing a civil suit and vehicle in dispute could not be retained for an indefinite period as there is every likelihood of severe damage to the vehicle; that the impugned order is passed on wrong premises of law and facts, without application of judicious mind causing miscarriage of justice and liable to set aside.

4. Conversely, Muhammad Tariq respondent has lodged constitutional petition (Writ Petition No.229 of 2011) calling in question the vires of order dated 15-12-2010 passed by learned Magistrate whereby his application for superdai has been dismissed and order dated 23-12-2010 passed by learned Additional Sessions Judge whereby his appeal was disposed of with the above quoted order. He contends that originally the vehicle was owned by one Humayun Khan, who sold the same to Muhammad Islam and Khizar Hayat and the vehicle was transferred in their names on 10-10-2005 after its conversion into Bus with approval of the competent Authority on 1-1-1985; that later on vehicle was purchased by one Wazir Ahmed from whom the respondent purchased it through a transfer deed dated 5-10-2010. It is argued by learned counsel that the vehicle taken into custody would be restored to a person from whose custody it was taken into possession by the police. He has placed reliance upon Zahurudin v. Muhammad Inayatullah Khan and another (1973 PCr.LJ 288) and Ali Muhammad v. Addl. Sessions Judge and others (2007 MLD 1096 Lahore).

5. I have given patient hearing to learned counsel for the parties and gone through the record.

6. At the outset it may be expedient to reproduce hereunder section 516-A, Cr.P.C. for ready reference:-- "516-A.Order for custody and disposal of property pending trial in certain cases. When any property regarding which any offence appears to have been committed, or which appears to have been used for the commission of any offence is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy or natural decay, may after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of."

7. As per F.I.R No.855 of 2010, case of Ghulam Yasin petitioner is that his truck/vehicle bearing Registration No.3289/PRM, Engine No.LS19750, Chassis No.WGP602635 has been allegedly stolen some times before, however, the vehicle has been recovered from Muhammad Tariq respondent bearing Registration No.2886/OK. Whereas, case of Muhammad Tariq respondent is that police took into custody his vehicle bearing Engine No.LS18679, Chassis No.NJM606125 during investigation of said case. Record reveals that learned Magistrate referred the vehicle in question to Forensic Science Laboratory for examination of Chassis number and Engine number. The opinion of Forensic Science Laboratory dated 2-12-2010 is reproduce as under:-- "Opinion Chassis Number before Examination =NJM-606125 Chassis Number after Examination=XXX6026X

5. Engine Number before Examination=LS18679 Engine Number after Examination=LS18679 The chassis number has been deciphered as=XXX6026X5 The engine number could not be deciphered due to deep fillings. NOTE: The, X, indicate that the digits could not be deciphered due to deep fillings."

8. At this juncture I would like to take reliance upon Republic Motors Ltd. v. M. Anwar and others (1980 SCMR 954). In the above cited case Hon'ble apex Court has laid down that case property though to be restored to the party from whom taken yet such rule of law could be departed from under special circumstances. In the light of the above dictum I am of the considered view that in the instant case special circumstances do exist to depart from the general rule. In this regard suffice to say that as per report of Forensic Science Laboratory the vehicle in question does not bear chassis numbers alleged by both the parties. During the course of investigation Muhammad Tariq respondent has failed to produce Nazir Khan the alleged owner/vendor of the vehicle. He has simply brought on record an open transfer letter in his favour from Wazir Khan. An open transfer letter is not a valid document of title and does not bear any legal worth to claim ownership on this basis. He, therefore, has not been able to bring on record any confidence inspiring speck of material to claim his genuine ownership in the vehicle in question.

9. It is reported that after conclusion of the investigation of case F.I.R No.855 of 2010, the Investigating Officer has recommended cancellation of case. The vehicle in question has been recovered during the investigation. Both the parties are claiming their ownership over the said vehicle, therefore, learned Additional Sessions Judge has rightly passed the impugned order dated 23-12-2010 while directing the parties to approach the Civil Court for determination of their ownership in the vehicle in question. Needless to say that the criminal courts are not competent to determine question of title or ownership of the case property rather it falls within the exclusive domain of the Civil Court of plenary jurisdiction. Admittedly, Ghulam Yasin petitioner has lodged a suit for declaration with regard to ownership of vehicle in question against respondent pending adjudication before the Civil Court. Even otherwise, disputed ownership of a vehicle is a factual controversy which cannot be resolved by invoking the constitutional jurisdiction of this Court.

10. For the above discussion and reasons, I do not find any factual or legal infirmity in the impugned order dated 23-12-2010 passed by learned Additional Sessions Judge, therefore, the parties have no case at all to invoke the constitutional jurisdiction of this Court to impugn the said order.

11. I have gone through the above-cited cases of Zahurudin and Ali Muhammad. The facts of the cases cited by learned counsel for the respondent are altogether distinct and distinguishable from the facts of this case. The dictums laid down in the cited cases cannot be siphoned on the facts of this case and thus are of no avail to the respondent.

12. As a sequel to the above both the above noted writ petitions being devoid of any merit are dismissed. MWA/G-38/L Petitions dismissed.