1985 PLP 1376 (MLD)

The two Criminal Revisions Nos. 215 and 209 of 1983 are the connected matters arising from a single order of the learned Additional Sessions Judge, Vehari, relating to the interim custody of tractor No.VR-4462 and the trolley, hereinafter referred as "disputed property." I propose to dispose of these petitions through single order.

2. The facts relevant to these petitions briefly are, that on 4-12-1382 a case udder section 382/148/149, P.P.C. was registered against Allah Ditta, petitioner in Criminal Revision No.209/83, on the report of Abdul Rashid, petitioner in Cr.R.No.215/83, wherein it was alleged that the disputed property which originally belonged to Allah Ditta, accused, was purchased by the complainant for Rs.1,10,000 and Rs.45,000 were paid as earnest money. The possession of the disputed property was delivered by Allah Ditta, accused therein, to Abdul Rashid, complainant. The balance was to be paid by instalment from produce from the tenanted land given to him by Allah Ditta, accused. After some time the relations between the two petitioners became trained. On 8-11-1982 Allah Ditta, petitioner, and others waylaid the complainant. They were duly armed with deadly weapons and forcibly snatched the disputed property from the complainant in the presence of the witnesses. The police investigated the case and recovered the disputed property from the possession of Allah Ditta. Since during the investigation, the police had added section 17 of Offences against Property (Enforcement of Hudood) Ordinance, 1979, the two petitioners moved separate applications under section 516-A, Cr.P.C. for the interim custody of the disputed property. The applications were entrusted to the learned Additional Sessions Judge, who, vide his order, dated 3-10-1983 rejected both the applications keeping the disputed property with the Police.

3. Learned counsel for Allah Ditta, petitioner in Criminal Revision No.209/83, contended that his client is a bona fide owner of the disputed property which was never sold to Abdul Rashid, petitioner in Criminal Revision No.215/83; that there is no hire purchase agreement or receipt of the earnest money allegedly paid by Abdul Rashid to his client, and that registration of the disputed property is in the name of his client. Learned counsel urges that his client alone is entitled to the custody of the disputed property pending decision of the case and that there is no legal justification for giving the custody of the disputed property to Abdul Rashid, the rival claimant.

4. On the other hand, learned counsel for Abdul Rashid, petitioner in Criminal Revision No. 215/83, submitted that his client had purchased the disputed property from Allah Ditta for Rs.1,10,000; that Rs.45,000 were paid as earnest money; that the disputed property was delivered to his client under the sale; that on 4-11-1982 his client had filed a suit against Allah Ditta where temporary injunction restraining the forcible removal of the disputed property from the possession of his client was issued; that on 7-11-1982 Allah Ditta filed a suit against his client in a different Court and obtained interim injunction restraining his client from snatching away the disputed property and that under the cover of this stay order Allah Ditta took the law in his hands and with the help of his companions snatched the disputed property from his client whereon a case, vide F.I.R. No.228/82 was registered against Allah Ditta and others and the disputed property was recovered. Learned counsel argues that since criminal Courts are concerned with the possession of the property and question of title of the disputed property has to be decided by a civil Court the petitioner Abdul Rashid who was last in possession of the disputed property at the time of commission of the crime, was entitled to its interim custody and that Allah Ditta, petitioner, who took the law in his hands does not deserve any assistance by the Courts.

4. I have considered the arguments advanced by the learned counsel for the parties with care. The facts, that a case under section 382/148/ 149, P.P.C. against Allah Ditta, petitioner, for the forcibly removal of the disputed property from the possession of Abdul Rashid, petitioner, was registered at Police Station Gaggo; that after thorough investigation the police found the allegation of forcibly removal of the disputed property from the possession of Abdul Rashid as correct and recovered the disputed property from the possession of Allah Ditta as a stolen property; that the police added section 17 of Offences against Property (Enforcement of Hudood) Ordinance, 1979, during the investigation and has submitted a challan against Allah Ditta, petitioner, and others in the Court of Sessions Judge, Vehari, and that the stay order, dated 7-11-1982 in favour of Allah Ditta, petitioner, has been suspended by the learned appellate Court, are the admitted and undisputed facts of the case.

5. In the circumstances of the case, without making any observation lest it may prejudice the merits of the case, I am inclined to grant interim custody of the disputed property to Abdul Rashid, petitioner in Criminal Revision No.215/83 for the reasons:- (i) that a case of theft/robbery was registered against Allah Ditta, petitioner, and others on the report of Abdul Rashid, petitioner. The case was thoroughly investigated by the police. The disputed property was recovered as a stolen property from Allah Ditta. The allegation- of forcible removal, of the disputed property from the possession of Abdul Rashid having been found correct by the police during the investigation, it appears that Abdul Rashid was last in possession of the disputed property at the time of commission of crime. (ii) that the stay order, dated 7-11-1982 granted by civil Court in favour of Allah Ditta, petitioner, has been suspended by the learned appellate Court, and (iii) that in the circumstances of the case and in view of nature of the disputed property it would not be fair to keep the disputed property in the hands of the police and deprive Abdul Rashid, petitioner (who is prima facie entitled to the interim custody) of the use of the disputed property. It is unfortunate that the disputed property has already remained with the police for one year."

6. I, therefore, set aside the order, dated 3-12-18983/ of the learned Additional Sessions Judge, and grant interim custody of the disputed property to Abdul Rashid on the condition that he furnishes a security it the sum of Rs.1,10,000 (Rupees one lakh and ten thousand only) to the satisfaction of Station House Officer, Police Station Gaggo who would also prepare an inventory of the machinery and other accessories, if any, of the disputed property. Resultantly, Criminal Revision No.215/83 is accepted whereas Criminal Revision No.209/83, (the petition of Allah Ditta) to the extent of grant of the custody of the disputed property on Superdari to him, is rejected.

7. Before parting with the order I would like to add that this order is without prejudice to the order for final disposal of the disputed property which may be passed by the trial Court under section 517 of the Cr.P.C. In the peculiar circumstance of the case and in view of the nature of the property I would direct the learned trial Court to fix the case F.I.P. No.228/82 for hearing and decide the same within two months from today under intimation to the Additional Registrar of this Court. S. A. Petition allowed.