P L D 1975 Lahore 744 (PLP)

Date of hearing : 19tb September 1972. The petitioner was an owner of a Toyota 1968 Model Car bearing No. K. A. G. 9747. This car was allegedly purchased by him on 10-3-1971 for Rs. 17,800 from one Ghani Gul. The car was stolen on 16-6-1971 and an F. I. R. bearing No. 181 of 1971 was lodged on the same day at New Town Police Station, Rawalpindi. The investigation in .the case continued and on 20-5-1972, the Police was able to recover one car, the custody of which is now presently in dispute. The Police informed the petitioner that the car had been recovered and that he should join the investigation, identify the car and lead other evidence in support of his claim. The petitioner produced evidence which at the present moment it is not necessary to mention., On 12-6-1972, the petitioner made a formal application to the Illaqa Magistrate that the car be banded over to him on sapurdari, as he was its owner. The Deputy Superintendent of Police, vide his report (Annex. "C") said that there was no objection in this respect. The learned Magistrate by means of his order, dated 13-6-1972 (Annex. "D") handed over the car on sapurdari to the petitioner on the security of Rs. 30,000 which was duly furnished by him.

2. On 10-7-1972, respondent No. 2 Mr. Siddiq Ahmad Khan, from whose custody the car had been recovered, applied that he was the actual purchaser of the car and the same should be given to him. The matter with regard to the final disposal of this application is still pending before the learned Magistrate but in the meantime he had passed an interim order on 21-8-1972 (Annex. "H") directing that the car should be put in a garage. The petitioner has come up in revision under section 439, Cr. P. C. against the last mentioned order of the learned Magistrate.

3. Learned counsel relying on Ghulam Ali v. Emperor (A I R 1945 Lab. 47), stated that there was no jurisdiction on the part of the learned Magistrate to review the order which bad once been passed by him under section 523, Cr. P. C. He further submitted that Mr. Siddiq Ahmad Khan was allegedly a purchaser from the wife of another Magistrate, namely, Mr. A. T. Zaidi, M.

1. C., Sahiwal for Rs. 17,000.00. The date of purchase of respondent was 17-5-1972. He submits that actually respondent No. 2 cannot be called a bona fide purchaser because the wife of the Magistrate hereinbefore mentioned became aware that the car was stolen and, therefore, they obtained time from the Police to dispose it off. In this way, according to the learned counsel for the petitioner, the car was sold by the wife of the Magistrate aforesaid on 17-5-1972 and four days thereafter the police recovered it from the said respondent. He further submits that on the merits, the petitioner had adduced copious evidence before the Police who also supported his case. Due to all these reasons, it was urged, that the order of the learned Magistrate was without jurisdiction and otherwise unjustified on merits.

4. As against this, learned counsel for the respondent No. 2 argued that the first order of custody was passed by the learned Magistrate on 13-6-1972 in the absence of his client without giving him an opportunity to defend himself. From this point of view, the learned counsel argued, that the aforesaid order was a nullity in the eye of law and did not stand in the way of the Magistrate to pass any fresh order. Another thing argued was that after passing an order of custody under section 523, Cr. P. C., the Magistrate was not ceased of his jurisdiction with regard to the property in question, and if it carve to his notice that the property was damaged or was otherwise not retained in accordance with the directions of the Court, he retained the power to pass consequential order in that respect. He further submitted that at the moment only an interim order has been passed and final order on the application of respondent No. 2 is yet to be passed. It cannot be said with certainty that the Magistrate will definitely accept the application of respondent No. 2 and possibility cannot be ruled out that the said application may well be rejected and in that state of affairs the car will remain in a garage. Learned counsel further argued that due to the circumstances, hereinbefore mentioned this was not a stage for any interference on the part of the High Court when the matter was still in such a suspense. He tried to raise arguments on merits as well and wanted to show that his client was a bona fide purchaser of the car and it could not be said with certainty that the car belonged to the petitioner.

5. I have heard the learned counsel for both sides at length and have come to the conclusion that since no final order as yet has been passed by the learned Magistrate, let this petition remain pending. After any final order is passed. the matter can be taken up and the parties will be at liberty to raise such points which the circumstances of the case may enable them to raise. I order accordingly. The investigating officer need not appear on any next date of hearing unless he is specifically summoned. The case should not be treated as part-heard. This order should be read in continuation of my judgment/order, dated 19-9-1972.

2. The learned Magistrate then passel the final order on 27-11-1972, whereby he gave the car on sapurdari to Siddiq Ahmad Khan, respon dent No. 2 herein. The petitioner challenged the said order as well, by adding additional grounds to his Cr. Revision No. 735 of 1972 by means of Cr. Misc. No. 2 of 1973. He also filed an independent Cr. Revision being Cr. Revision No. 69 of 1973 against the last mentioned order. The present judgment will dispose of these matters.

3. The first point argued by the learned counsel for the petitioner was that order, dated 12-6-1971, whereby the learned Magistrate earlier gave custody of the car to the petitioner was final and there being no scope for review in the Code of Criminal Procedure, the learned Magistrate had no jurisdiction to pass the impunged order, dated 27-11-72. He relied for this proposition on Ghulam Ali v. Emperor (A I R 1945 Lah. 47) (Blacker, J.). The contention has no merit. Order dated 12-6-1972, in the peculiar circumstances, being ex parte, was only in the nature of an interim order and, as such, there could be no bar on the part of the learned Magistrate to pass a proper and final order after hearing both sides including the respondent. This was the view which was taken in C. M. Safdar v. The State and another (1968 P Cr. L J 936). At this stage, it may be mentioned that in Ghulam Ali v. Emperor (mentioned earlier), it is written as follows :- "It seems to me, therefore, that all the proceedings in this case, except the original order making over possession of the horse on security to the petitioner are bad in law and must be set aside. Even that order is not free from defect, because it would appear from a strict reading of the section that that order should be passed not on the application of the party but on a report by the police. It seems to me however, that though there should have been such a report in this case the absence of it has not occasioned any failure of justice."

4. This will show that the learned Judge was of the opinion that a proper :order under section 523, Cr. P. C., can be passed only on a police report and not on an application of a party. In the instant case, the earlier order was passed on application of a party (and not on a report of the Police suo Motu). Furthermore the learned Judge in A I R 1945 Lah. 47 also held -that despite that irregularity, there was no failure of justice in that case. The judgment does nit show as to how this view was taken but be that as it may, in the instant case, in my opinion the failure of justice had taken place by passing an order behind the back of the respondent. Similarly, the position that an order passed in circumstances of the present kind could be called only an interlocutory order, was not gone into in detail in the aforesaid Lahore case The said case was rightly distinguished in C. M. Safdar v. The State and another (mentioned, earlier). In Mahmood Alam Khan v. Sakhawar Ali and another (1973 Law Notes 232 (Lah.)) an order passed under section 523, ,Cr. P. C, without hearing the parties concerned was held to bean improper order.

5. For all these reasons, the contention raised by the learned counsel for the petitioner is not accepted.

6. The next point argued was that on merits the petitioner had a better case. In this respect the following passages from the order of the learned Magistrate are worth-noticing :- "I have heard counsel on both sides. It has been argued by Mian Tariq Mahmood that Car No KAG-9747 was stolen on 16-6-71 from the house of his client and the one recovered by police from Siddique Ahmad Khan is the same car and should be given to him because the car recovered was a stolen property which had changed at least three hands and the history of the car showed that its registration was entered with the Registration authority through forged papers. He has contended that this Court had no jurisdiction to review its earlier order of Sapurdari and his client was a bona fide owner of the car. He has also stated that second but last owner of the car had .disposed of the car having learnt that the car was a stolen one and the bargain with the last owner from whose custody it was recovered had been struck while it was known to the seller as well as the buyer that the car was stolen property. Malik Sher Alam, on the other side, has stated that his client is in possession of a genuine receipt and purchased the car at the market-price before devaluation for rupees seventeen hundreds (thousand) (sic) only. He has contended that according to the opinion of Expert chassis number of this car was un-tempered but welded, whereas the engine number was found to bear filing marks. He has further argued that his client was the genuine purchaser of the car and the car was in his client's possession when the police recovered it. The carat the present moment is in the custody of Court. It appears from the documentary history of Car No. LEH 6024 that it might have been a stolen one at some stage but the receipt presented by Mr. Siddique Ahmad Khan shows that the last deal was at the market rate. Mr. Muhammad Yunus has lost a car (KAG-9747) but it is not certain that the one under dispute is the same car because its chassis and engine number are different and, secondly, there is no proof whatsoever that the accused of this case stole the car from the possession of Muhammad Yunus. As stated by Mr. Ulfat Hussain Shah, S. I , the person who was charged with having stolen the present car is in custody at Karachi and this car has not been connected with the theft of Mr. Yunus's Car. In the circumstances, in my opinion, an order entrusting Mr. Siddique Ahmad with the custody of Car under section 523, Cr. P. C. would be most appropriate. He would retain the car on Sopurdari against surety of Rupees 30,000."

7. A perusal of the above will show that the learned Magistrate applied his mind to the facts and the circumstances of the case and the material placed before him and held that the identity of the car was doubtful at this stage. He had the jurisdiction to appreciate the said material and in that respect be does not seem to have violated any principle of law. No case in these circumstances, is made out for my interference and the revision petitions filed having no merit are, consequently, dismissed. There will be no order as to costs. S. A. H. Petition dismissed,