1992 P Cr (PLP)

Muhammad Sardar Khan for Respondent No.1 Abdul Samad Khan for the Remaining Respondents. Date of hearing: 18thDecember, 1991. These were narrated facts at the Bar that car in question was taken into custody by the police on suspicion being a stolen property on 30‑8‑1991. An enquiry was initiated and as a result F.I.R. No.778 Police Station Faqir Abad dated 26‑9‑1991 was registered against the petitioner under section 419/420/468, P.P.C Petitioner was arrested and was released on bail later on. Meanwhile on 2‑10‑1991 Mr. Fazal Karim Khattak, Magistrate 1st Class (Respondent No.1) applied to District Magistrate for delivery of the car in question into his Superdari pending the case. The District Magistrate passed orders of delivery of the car in question into his Superdari on 9‑10‑1991. Petitioner applied for Superdari of the car in question on 6‑11‑1991. His said application was heard and was dismissed by respondent No.1 vide his orders, dated 11‑11‑1991. Petitioner approached this Court in Criminal Miscellaneous No.56 of 1991 under section 561‑A, Cr.P.C. read with section 435, Cr.P.C. and Article 203 of the Constitution with a prayer that the car in question be delivered into his Superdari pending the case. He filed another Criminal Miscellaneous No.57 of 1991 under section 561‑A, Cr.P.C. read with section 435, Cr.P.C. and Article 203 of the Constitution for permission to approach this Court direct for a redress without filing a revision before the Sessions Judge. One more Criminal Miscellaneous No.58 of 1991 was filed to direct respondent No.1 to produce the car in question before the Court and to order its temporary delivery to the petitioner till the disposal of the revision petition.

2. I.O. was summoned with the record. He apprised the Court that as per his investigation the car in question was unregistered. Petitioner had IA claimed to have purchased it from the Bismillah Jan, respondent No.2 who has died two years back and even the car in question was also not registered in his name. Registration No.4310 LHM borne by the car was a fake number. His investigation further revealed that one Honda Saloon 1982 Model was registered against the said number, while the car in question is a Toyota Corolla 1982 Model. Apparently it is a case of property seized and the owner of it is not known. The Court has, therefore, to proceed in the matter to issue a proclamation under section 523(2), Cr.P.C.

3. At present the position is that the car in question has been seized and taken into custody from the possession of the petitioner who has rightly or wrongly some documents in his favour purporting that the car in question has been in his possession and custody as owner since 30‑7‑1989. This Court has to observe that Mr. Fazal Karim Khattak, Magistrate 1stClass should not have heard the petitioner's application for delivery of the car in question into his Superdari because he has already obtained the car in question for himself into his Superdari and he was thus an interested party and he was not supposed to sit an arbiter in his own cause. This Court would disapprove the conduct of judicial proceedings culminating into the impugned order made by Fazal Karim Khattak, respondent No.1 in the case. A question will arise as out of the petitioner and respondent No.1 who will be entitled to the Superdari of the car in question in preference to each other. Petitioner has come forward with an offer of furnishing a bank guarantee in the sum of Rs.1,00,000 (one lac) in case the car in question is delivered into his Superdari since he apprehends damage to the car in question at the hands of respondent No.1. He has also claimed to be the bona fide purchaser for value of the car in question. He has further remained apparently in lawful possession of the car for a period of two years. Possession by itself is 9/10th of the title. In the circumstances this Court would set aside the order of respondent No.1 dated 11‑11‑1991 and in suppression of the said order it would order the delivery of the car in question into the Superdari of the petitioner on furnishing bank guarantee in the sum of Rs.1,00,000 (one lac). Herein the District Magistrate has ordered the delivery of the car in question into the Superdari of Magistrate 1st Class which is also not a proper act. He has, however, passed a judicial order which has since been superseded He should avoid passing judicial orders with manifestation of favours to his subordinates. This Court herein would vacate the show‑cause notice issued to the District Magistrate in the matter. All these Criminal Miscellaneous applications are disposed of accordingly. The bank guarantee shall be furnished by the petitioner before the District Magistrate to obtain delivery of the car m question on Superdari. N.H.Q./1378/P Order accordingly.