1996SCMR496 (PLP)

Date of hearing: 21st December, 1994. MUKHTAR AHMAD JUNEJO, J.‑‑‑Petitioner Muhammad Salim has sought leave to appeal against the judgment dated 9‑4‑1994 passed by a learned Single Judge of the Lahore High Court, Multan Bench, in Criminal Miscellaneous No. 36/Q/94. The dispute in this matter relates to ownership and possession of Wagon No. MLR‑4885. On 2‑12‑1993, respondent Muhammad Amin reported at Police Station Qutbpur that his registration book in respect of said vehicle owner by him was missing. Thereafter, on 14‑12‑1993 respondent Muhammad Amin moved an application before the S.P., Vehari about theft of said vehicle. On 17‑12‑1993 Matro Police registered the case about theft of said vehicle under F.I.R. No.318 of 1993. In his F.I.R., respondent Muhammad Amin alleged that two months prior his vehicle with Registration No. MLR‑4885 parked at night time at "Dera" of Ilyas Khan was found missing with driver Saifullah, on the next morning. During investigation Matro Police secured said wagon on 19‑12 1993 from possession of petitioner Muhammad Saleem. Respondent Muhammad Amin on 20‑12‑1993 moved the Ilaqa Magistrate Mailsi for temporary custody of the wagon, which was given to him under an order dated 21‑12‑1993. Subsequently, on 2‑1‑1994 the SHO Matro moved the same Court for cancellation of the said order dated 21‑12‑1993 on the ground that one Muhammad Saleem had claimed being purchaser of said wagon which was transferred in name of Shahid Ahmed. Upon this the Magistrate on 2‑1‑1994 directed the S.H.O. to call the parties and verify ownership of the wagon. The Magistrate also desired summoning of the parties in Court of the S.D.M., Mailsi. Said order dated 2‑1‑1994 was assailed without success in a Revision Application decided on 24‑1‑1994 by an Additional Sessions Judge and in a Writ Petition No. 610/94, decided on 19‑2‑1994 by a learned Single Judge of the Lahore High Court. The A.C. and Magistrate 1st Class, Mailsi was moved under separate applications by petitioner Muhammad Salim as well as respondent No.2 Muhammad Amin Khan for temporary custody of the wagon. Under his order dated 24‑2‑1994 (erroneously mentioned as, dated 21‑2‑1994) the Magistrate declined to hand over the wagon to any of the parties on "Superdari" and referred the parties to the Civil Court to settle the issue of title and called upon the S.H.O. to take care of the wagon till decision of title. Said order dated 24‑2‑1994 was challenged in revision applications by both the rival claimants. Under an order dated 5‑3‑1994, the learned Additional Sessions Judge, Vehari accepted revision application of petitioner Muhammad Salim and dismissed revision application of respondent No.2 Muhammad Amin Khan and directed the wagon to be given on "Superderi" to the petitioner, on executing required security bond. Said order dated 5‑3‑1994 was assailed by respondent No.2 in the Lahore High Court in C.M. No.36/Q of 1994 under section 561‑A, Cr. P.C. In the High Court a learned Single Judge dealing with said matter passed a consent order, the operative part of which reads as below:‑‑

..... However, to resolve the controversy regarding the interim custody, the parties are agreed to the disposal of this petition in the following terms: 'Respondent No. l if is interested in retaining the interim custody of vehicle, he shall be entitled to it subject to the deposit of Rs.4,00,000 the approximate price of the wagon in the name of the petitioner within a period of one month in the fix account in any scheduled bank/Government scheme and in case, the respondent is not interested in the interim custody of vehicle or fails to deposit the amount in question within the stipulated period, the vehicle shall be kept in private garage under the supervision of the police at the expenses of the parties.' Without expressing my views on the merits of the case, as the matter is still subjudice before the Civil Court, I direct that Muhammad Salim respondent shall be entitled to retain the interim custody of the disputed wagon subject to the investment of Rs.4,00,000 in the name of the petitioner in Khas Deposit Certificate Scheme or in some other profit bearing scheme within one month, provided that profit accrued thereon shall go to the party subsequently found entitled to the custody of car. In case of failure, the vehicle shall be kept in a private garage at the expenses of the parties as agreed. This petition in the above terms stands disposed of. " Pir Altaf Hussain Shah, learned counsel for the petitioner, argued that there was no consent of the petitioner to the impugned order, as the petitioner had filed a civil suit for being declared owner of the wagon in question and that the Civil Court had ordered status quo. The learned counsel cited the case of Munir Ahmed v. Barkhurdar (1992 SCMR 1454). In the case of Munir Ahmed (1992 SCMR 1454) there was no consent order and one of the contesting parties was allowed to have "Superdari" of the disputed wagon on deposit of Rs.1,90,000 in the Court. In the instant case, a somewhat similar order is passed by the High Court. We are afraid, we cannot go into the question whether the petitioner was not party to the consent order dated 9‑4‑1994 by which C.M. 36/Q/94 was disposed of. Apparently counsel for the petitioner Mr. Muhammad Tufail Alvi had appeared and represented the petitioner. No affidavit of Muhammad Tufail Alvi has been filed to the effect that he had not consented to the operative part of the order dated 9‑4‑1994. We cannot enter into this controversy at this stage. Moreover, the Civil Court is seized of the matter regarding ownership of the wagon in question. In the circumstances, we refuse to grant leave to appeal and dismissed this petition. N.H.Q./M‑2246/S Leave refused.