2017 PLP 500 (MLD)

IKRAMULLAH KHAN, J.

I intend to dispose of both the petitions bearing No. Cr.MQP No.107-P/2016, titled, "Dubai Islamic Bank, Peshawar v. The State" and Cr.MQP No.118-P/2016, titled, "Taj Muhammad v. The State" as common question of law is involved in both the petitions.

2. In essence, Dubai Islamic Bank through its authorized agent, called "Repossession Officer" or "Recovery Officer" took into possession the vehicle/ Motorcar bearing No.LEB-9843 from one Abdul Khalil as the motorcar was sold out to the customer Manzoor Ahmad by extending the required finance, who committed the default in payment of the agreed installment.

3. One Taj Muhammad who claimed to be bona fide vendee, derived ownership from the customer namely Manzoor Ahmad, applied to the learned Judicial Magistrate, for its interim custody. At the same time the petitioner Bank also applied for custody of the same vehicle, which was already given to the local police by the Attorney of the Bank himself and the local police took the same into possession under sections 523/550, Cr.P.C.

4. Learned counsel for petitioner Taj Muhammad contended that the vehicle in question is the ownership of the petitioner, taken into illegal custody by the Bank Recovery Officer, from the driver of the petitioner Abdul Khalil which has been retained by the local police of Police Station Hayat Abad without any legal backing as the vehicle is neither stolen property nor involved or required in any criminal case.

5. On the other hand, learned counsel for the Bank argued that the original customer was defaulter of the Bank, and the Bank was fully authorized to take over possession of the vehicle in question in term of subsection (3) of Section 16 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (Hereinafter Finance Ordinance, 2001).

6. I have heard learned counsel for the parties and have gone through the record.

7. This Court in case (QP No.137-P/2015) decided on 18.7.2016, in similar matter in regard to detention and retention of vehicle by police, under Sections 523/550, Cr.P.C. on report of Financial Institution has held it illegal. However, it is held that Financial Institution may initiate criminal or civil proceedings against the defaulter customer, in competent Court of law.

8. In case in hand, the contention of learned counsel for the Bank that Financial Institution could take over possession of moveable property in term of provisions contained in Section 16(3) of the Finance Ordinance, 2001 could not be repelled at all but once again, this Court reiterate that the local police has got no jurisdiction or legal authority to indulge into civil nature cases, which are outside of domain of sections 523/550, Cr.P.C.

9. The possession contained in Section 16(3) of Finance Ordinance, 2001 reads as under:-- "16(3) In cases where a customer has obtained property or financing through a finance lease, or has executed an agreement in connection with a mortgage, charge or pledge in terms whereof the financial institution is authorized to recover or take over possession of the property without filing a suit, the financial institution may, at its option: (a) directly recover the same if the property is movable; or (b) file a suit hereunder and the Banking Court may pass an order at any time, either authorising the financial institution to recover the property directly or with the assistance of the Court: Provided that in the event the financial institution wrongly or unjustifiably exercises the direct power of recovery hereunder it shall be liable to pay such compensation to the customer as may be adjudged by the Banking Court in summary proceedings to be initiated on the application of the customer and concluded in thirty days." The bare perusal of the above mentioned provisions of law, nowhere authorizes the local police to take over the possession of any moveable property seized by the Financial Institution, from any customer in term of Section 16(3) of the Finance Ordinance, 2001. The law in this respect is very clear, that if any Financial Institution, transgress their authority and possess as conferred upon them in terms of Section 16(3) of Finance Ordinance, 2001, in matter of direct power of recovery, shall be liable for the consequences, provided under the proviso to section 16(3) of the Finance Ordinance, 2001.

10. It is settled principle of law that Courts in exercise of their criminal jurisdiction under section 516-A, Cr.P.C. may order for custody and disposal of property pending trial of a criminal case, where any property regarding which any offence appears to have been committed or which appears to have been used for commission of any offence. But in the case in hand, the vehicle in question is not subject matter of any offence within the meaning of Pakistan Penal Code, therefore, the impugned judgments of learned Courts below are based on correct appreciation of law, require no legal interference. The local police are directed to return the vehicle to the person, who had handed it over to the police, if not required in any criminal case and the aggrieved person, if so advised, may take recourse to competent Court for redressal of its grievance. Both these petitions are meritless, hence dismissed accordingly with the above observations. JK/357/P Petitions dismissed.