1968 P Cr (PLP)

3. Before coming to the contentions raised by the learned counsel for the parties, it would be pertinent to observe that the position taken up by the petitioner's counsel before the learned Magistrate was that he was not competent to review his previous order passed under section 516‑A of the Criminal Procedure Code. On the contrary, it was argued before him on behalf of Mr. Bajwa that the earlier order was passed by the learned Magistrate under section 523, Cr. P. C. and being of an inter locutory nature was amenable to review: The learned Magistrate, however, took the view that his previous order was not covered by either of the aforesaid sections and that at any rate it was passed ex parte without holding an enquiry. However, he considered himself competent to review the same, as it was not a final order or a judgment.

4. The petitioner had only impleaded the State as respondent. Since, however, the name of Mr. Bajwa as a rival claimant to the custody of the vehicle frequently occurred in the relevant documents placed on the record, I considered it expedient in the interest of justice also to issue a notice to Mr. Bajwa.

5. The learned counsel for the petitioner raised the following contentions before me: ‑ (i) that the earlier order, dated 25th July 1967, in compliance of which the vehicle in question was delivered to the petitioner, was passed under section 523, Cr. P. C. which could not be reviewed. In support of this contention, reliance was placed on Ghulam Ali v. Emperor A I R 1945 Lab. 47 and Messrs Purshattam in Das Banarasidas v. State through Harshad Rai Natwarlal A 1 R 1952 All 470; (ii) that assuming without conceding that he was competent to review his previous order, the facts of the case warranted that the pick‑up should have been delivered to and retained by the petitioner, in whose name it was registered. (It was also. stated that Mr. Bajwa had himself addressed a letter to the Registration Officer concerned purporting to show that the vehicle in question had been transferred by the firm, of which he was a member, to the present petitioner); (iii) lastly, that the mere fact that Mr. Bajwa, though earlier claiming the custody of the pick‑up, had felt quite contended with the impugned order delivering the custody of the vehicle to the police, clearly showed that he had no genuine personal interest in the vehicle as against the petitioner who, feeling aggrieved, was constrained to file the present petition.

6. On the contrary, it was contended on behalf of Mr. Bajwa‑ (1) that the first order, dated 25th July 1967, was passed by the learned Magistrate under section 516‑A, Cr. P. C. and being interlocutory in nature was not covered by the prohibition contained in section 369, Cr. P. C. to the review of judgments, it was amenable to review, and as such the learned Magistrate was quite competent to pass the impugned order. Reliance was placed in this regard on Kh. Muhammad Rafiq v. The State P L D 1967 Lah. 833 ; (ii) that Mr. Bajwa had, in the first instance, applied for the restoration of the vehicle to him and it was only during the pendency of the application before the Magistrate that he prayed in the alternative that it should be handed over to the police; (iii) that it factually incorrect that Mr. Bajwa was satisfied with the ,impugned order directing the delivery of the vehicle to the police and rather feeling aggrieved he challenged that order to this Court in Criminal Revision No. 948 of 1967, which was not pressed as Mr. Bajwa was under the impression that the police was going to withdraw the case against him and it was accordingly dismissed on 19th October 1967; (iv) in answer to the contention that Mr. Bajwa had addressed a letter to the Registration Authority on behalf of the firm purporting to show that the vehicle had been transferred in favour of the petitioner, it was stated that Mr. Bajwa, no doubt, signed an undated draft document purporting to be a sale‑deed leaving blank the Lane of the Registration Authority to be addressed and that of the purchaser.

7. The first point which falls for determination is as to whether the first order which was subsequently varied by the impugned order was passed by the learned Magistrate under section 516‑A, Cr. P. C. or under section 523 of bat code, or as held by the learned Magistrate in his impugned order under none of these two provisions. In order to deter mine the proper occasion or stage for the invocation of the two aforesaid provisions an analytical study of the two would be necessary. They are reproduced below: ‑ "516‑A. Order for custody and disposal of property pending trial in certain cases‑‑When any property regarding which any offence appears to have been committed, or which appears to have been used for the Commission of any offence, is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy or natural decay, may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of.

523. Procedure by police upon seizure of property taken under section 51 or stolen. (1) The seizure by any police officer of property taken under section 51 o r alleged or suspected to have been stolen, or found under circumstances which create suspicion of the commission of any offence, shall be forthwith reported to a Magistrate, who shall make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or, if such person cannot be ascertained, respecting the custody and production of such property. (2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit. If such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation."

8. Having carefully considered the two provisions, I am clearly of the view that the first order was passed by the learned, Magistrate under section 523, Cr. P. C., inasmuch as an essential condition to be satisfied for invoking section 516‑A is that the property is produced before the Court during an enquiry or trial. Since the order was passed during investigation and it was not known whether the case would be sent up to the Court or not, it was not a case of the production of the property during enquiry or trial. Such a production could only be envisaged after the commencement of the enquiry or trial. Thus section 516‑A is clearly excluded. My finding that the first order was passed under section 523, Cr. P. C. proceeds on the following reasons. In the first instance, it was the case of seizure of property by the police. Secondly, according to my understanding of the; legal position, the property was one which was alleged of suspected to have been stolen and even if the police, which is under an obligation to report the seizure to the Magistrate, fails to de so and the seizure is brought to the notice of the Magistrate by the complainant or any other interested party, that would hardly make any difference. To exclude the invocation of section 523, Cr. P. C. on the ground of an omission or irregularity committed by th4 police, would amount to placing a premium on the same leading to absurd conclusions. The expression "stolen property" used in the technical sense has been defined in section 410, P. P. C. which reads as follows: ‑ "

410. Property, the possession whereof has been transferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed, is designated as stolen property, whether the transfer has been made, or the misappropriation or breach of trust has been committed, within or without Pakistan. But, if such property subsequently comes into the possession of a person legally entitled to the possession thereof it then ceases to be stolen property." Obviously, a property could only be described as "stolen property" after the transfer of its possession by theft or extortion, robbery, etc. or its criminal misappropriation or its being the subject matter of criminal breach of trust has been established, At the investigation stage, it could at best be described as a "property alleged or suspected to have been stolen". Since according to the petitioner's allegations a criminal breach of trust had been committed in regard to the pick‑up in question, it was covered by the expression "a property alleged or suspected to have been stolen" as occurring is sections 523 and 550, Cr. P. C. I am conscious of the fact that a different view was expressed by Desai, J. in Messrs Purchottam Das Banarsidas v. Stag through Harshad Rai Natwarlal AIR 1952 All.470 but with respect I have not been able to agree with that view of the learned Judge, It may be observed that under section 516‑A, Cr.P.C. an order for the temporary custody of the property is to be made during the pendency of the enquiry or trial, as the case may be, while under section 523, Cr.P.C. an order is to be made for the disposal of the property in certain circumstances, or for the delivery of its possession to the person entitled to possession for instance when the case is not sent for trial. It may be observed that entitlement to possession cannot be equated with ownership. A stage might well arise in the case after an order passed by the Court under section 523, Cr. P. C. during investigation delivering possession of the property to a person is made that he may be sent up for trial. In such an eventuality, I am of the view that the Court would not be helpless to pass another order under section 517, Q P. C. on the conclusion of the enquiry or trial.

9. To determine the question of the finality or otherwise of an order passed under section 523, Cr. P. C., it would also be relevant to determine whether an enquiry would be necessary before passing such an order. The expression "delivery of such property to the person entitled to the possession thereof" obviously presumes some sort of enquiry which, of course, may not be necessary in all cases and the material already on the record may be good enough for the determination of entitlement to possession. In certain cases, the alleged seizure of property by the police from a certain person may be denied by him as it often happens in cases under the Excise Act and the Arms Ordinance, where usually the plea taken by the accused is that the property has been planted on him. Again a property seized may not be claimed by the person from whom it has been recovered. A position may well arise, as it happened in the‑instant case, that there may be two rival claimants to, the seized property. Obviously, for the delivery of possession to the person entitled, some sort of enquiry has to be made. I am conscious of the conflict of authorities on the proposition and am to respectful agreement with Muhammad Yusuf v. Krishna Mohan Bhatteacharjya A I R 1938 Cal. 17 which is to the effect that in a case of conflicting claims entitlement to possession would contemplate an enquiry. A contrary view was, however, expressed in Sulleman Haji Ellias v. Emperor A I R 1942 Sind

89. In Chun! Lal v. Ishar Das 4 Lah. 38 Broadway, J. observed The section 523, Cr. P. C. itself does not make any magisterial enquiry imperative. It appears that the Magistrate has to satisfy himself on such material as is before him, who is entitled to possession". Even the above observation referring to the non imperativeness of enquiry does not positively prohibit a Magistrate to hold an enquiry, if in view of the inadequacy of the material before him he is unable to decide the question of the entitlement of possession. In support of the contention regarding the finality of the earlier order of the Magistrate, reliance was placed by the learned counsel for the petitioner on Ghulam Ali v. Emperor A I R 1945 Lah.

47. In this case the police recovered a horse from the possession of A who approached the Magistrate for the restoration of the possession of the horse on security. The police did not consider it proper to send up the case for trial. B, the complainant, then applied to the Magistrate for the restoration of the horse to him, after some enquiry, the Magistrate, reviewing his earlier order, allowed the complainant's application and ordered the restoration of the horse to him. Feeling aggrieved, A went in revision to the Sessions Judge who remanded the case for further inquiry. Not satisfied with this, he filed a revision in the High Court. Blacker, J. took the view that the subsequent order passed by the Magistrate amounted to a review of his first order which he was not competent to do, and as such the order was without jurisdiction, A contrary view was, however, expressed by my learned brother Shaukat Ali, J. in Kh. Muhammad Rafiq v. The State P L D 1967 Lah. 833 Section 369, Cr. P. C. prohibits the alteration or review of judgments by the Courts. It reads as follows: ‑‑ "

369. Save as otherwise provided by this Code or by any other law for the time being in force or, in the case of a High Court by the Letters Patent of such High Court, no Court, when it has signed its judgment, shall alter or review the same, except to correct a clerical error," While interpreting the above provision, his Lordship observed ‑ "Although this section refers in express terms to judgments under Chapter XKVI of the Code, still it is clear that the principles laid down therein apply also to final orders which are in the nature of judgments. The section does not apply to orders which are not in the nature of judgments. As order in the nature of judgment is one which is passed on full enquiry and after hearing both sides." Although the two authorities seem to express conflicting views, yet the conflict is more apparent than real and is resolved on a closer examination. Obviously in a case where the police, after investigating the case, finds no basis to send up the challan, the order passed by the Magistrate in regard to the delivery of the possession of the property would be final as the Court would have no occasion to deal with the property subsequently during enquiry or trial and the review of such an order would be barred by section 369, Cr. P. C. as held by Blacker, J. in A I R 1945 Lah.

47. On the other hand, in cases where the police send up the case for enquiry or trial, the Magistrate would be competent to deal with the property during enquiry or trial and pass another order at least under section 517 after the conclusion of the enquiry or trial. Thus the earlier order would be only interlocutory in nature being open to review under section 517 on the conclusion of the enquiry or trial.

10. Coming now to the facts of the instant case, vide his earlier order, dated 25th July 1967, the learned Magistrate directed the police to hand over the pick‑up to the owner after proper verification, if it was no longer required for investigation. In compliance with this order, Bashir Ahmad, S. I., Police Station Qilla Gujar Singh, handed over the pick‑up to the petitioner after having seen the registration in his name. Subsequently, however, on a representation made by Mr. Bajwa, the learned Magistrate reviewed his previous order treating it as an inter locutory order which was also justified on the ground that no enquiry had been made by him with regard to entitlement of the possession of the pick‑up or at any rate Mr. Bajwa had not been associated by the police in this enquiry. From the order as worded, it is clear that it was hedged in by several conditions whose breach was later alleged before the learned Magistrate and as such in view of the fact that the case has gone to the Court. I am inclined to treat the earlier order as interlocutory in nature and amenable to review, having been passed ex parse.

11. Coming, however, to the merits of the case, I am inclined to think that notwithstanding the serious nature of allegations levelled by the petitioner against MT. Bajwa, the production of the registration book in token of the transfer of the pick‑up in his favour coupled with the fact that Mr. Bajwa did not personally show any keenness to be impleaded as a respondent in the present revision petition and was only summoned suo motu by this Court in the interest of justice showing lack of interest on his part, it would be proper to restore the pick‑up to the petitioner during the pendency of the trial, on the conclusions of which the Court would be competent to make an order under section 517, Cr. P. C. While saying so, I have also in view the criminal revision filed by Mr. Bajwa in this Court seeking restoration of the pick‑up which is stated to have been dismissed as withdrawn. Though evincing some interest, his failure to join issue with the petitioner in the instant case evidently shows a lesser amount of keenness.

12. For the foregoing reasons, the petition is allowed.