P L D 1991 Supreme Court 604 (PLP)

ZAFFAR HUSSAIN MIRZA, J.‑‑‑These two appeals are being disposed of by this common judgment as they are directed against the same the Peshawar High Court, dated 20th March, 1984. These appeals by the Government of N.W.F.P., have arisen out of a suit y Dr. Syed Haider Bukhari respondent No.1 herein against it and five in the Court of Senior Civil Judge, Peshawar, on 23rd January, 1979. The case of the respondent No.1, who is the only contesting respondent at the present stage and would be referred to as the "respondent", was that a Toyota Corona, motor car Model 1967, bearing registration No. KAP 448, was found lying abandoned by the police, Warsak Police Post, by the roadside and was accordingly taken into custody. As its owner was untraceable, the local police obtained an order from the Ilaqa Magistrate and sold it through a public auction of Rs.15,000 on 20th September, 1973, to Haji Ghulam Fareed (respondent No.4). It appears that after purchasing the car the said Haji Ghularn Fareed obtained a new registration No.PRB 703 and sold it to Rahibullah (respondent No.5). The said Rahibullah in turn sold the car to the respondent (plaintiff) on 28th March, 1975, for a consideration of Rs.28,

000. In the events that happened in November, 1975, while the said motor car was in the possession and use of the respondent it was revealed that the said vehicle was stolen from Karachi and was the case property in F.I.R. No.207/72, dated 16th September, 1972 Preedy Police Station, Karachi, lodged by the owner Abdul Waheed respondent No.6. Accordingly during the course of investigation the motor car was taken away from the respondent and sent to Karachi. The latest information is that the same has now been handed over to its original owner under the orders of the Court at Karachi. Having failed to secure the said motor car back, the respondent claimed the value of the car at Rs.40,000 and further claimed by way of damages a sum of Rs.60,000 for mental torture, agony and loss of professional time. Thus the total claim preferred by the respondent in the suit was Rs.1,00,

000. The trial Court decreed the suit on 24th. March, 1981, only as regards the value of the car which was found to be Rs.35,000 but dismissed the claim with regard to damages. The decree was passed against the Provincial Government and two Inspectors‑General of Police, only (respondent Nos 2 and 3). Both parties were dissatisfied with the judgment and decree passed by the trial Court, accordingly the respondent as well as the appellant filed separate appeals before the Peshawar High Court, which were disposed of by a common judgment impugned in these appeals. The High Court dismissed the appeal of the Provincial Government, but partly accepted the appeal of the respondent by enhancing the amount of decree to Rs.40,000 which ‑according to the Court represented the value of the car at the time it was taken away from the respondent. Leave was granted to consider whether the respondent was entitled t recover any amount in excess of what was secured as a result of auction sale o the car, inasmuch as the car was put to auction in pursuance of a lawful order o the Magistrate who was competent to pass the said order under section 524 Cr.P.C. on behalf of the appellant the same contention was reiterated as ha been noted in the order granting leave as mentioned above and it was urged that the car was taken over from the respondent as it was stolen property in connection with which a F.I.R. was lodged at Karachi and it was further argue that the car was put to sale as a result of lawful order passed by the competent Magistrate under section 524, Cr.P.C. Therefore, according to the learned counsel for the appellant the respondent had no cause for grievance as he was no illegally deprived of the possession of the property in question of which he was the lawful owner. On the other hand, on behalf of the respondent it has bee contended that the order of the Magistrate, whereby he disposed of the motor car, was patently illegal for, no inquiry was held nor a proclamation issued a contemplated by subsection (2) of section 523, Cr.P.C. In order to examine the respective contentions of the learned counsel for the parties, it will be convenient to refer to sections 523, 524 and 525 of the Cr.P.C. which are as follows:‑‑ "Section 523.‑‑(l) The seizure by any police officer of property take under section 51, or alleged or suspected to have been stolen, or found under circumstances which create suspicion of the commission of an 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 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 an 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 month from the date of such proclamation. Section 524.‑‑(l) If no person within such period establishes his claim t such property, and if the person in whose possession such property was found, is unable to show that it was legally acquired by him, such property shall be at the disposal of the (Provincial Government), an may be sold under the orders of the District Magistrate or Sub‑Division Magistrate, or of a Magistrate of the first class empowered by the (Provincial Government) in this behalf. (2) In the case of every order passed under this section, an appeal shall lie to the Court to which appeals against sentences of the Court passing such order would lie. Section 525.‑‑If the person entitled to the possession of such property is unknown or absent and the property is subject to speedy and natural decay (or if the Magistrate) to whom the seizure is reported is of opinion that its sale would be for the benefit of the owner (or that the value of such property is less than ten rupees) the Magistrate may at any time direct it is to be sold; and the provisions of sections 523 and 524 shall, as nearly as may be practicable, apply to the net proceeds of such sale." On a plain reading of section 525 it appears to us that in case of a property in respect of which it is unknown as to the person entitled to possession thereof and if the Magistrate to whom the seizure is reported is of the opinion that its sale is for the benefit of the owner, then the Magistrate would be fully empowered and competent to direct such property to be sold. In such case the provisions of sections 523 and 524 shall apply to the net proceeds of such sale. We have not been referred to the orders passed by the Magistrate under which the motor car in question was sold, as no such document is on the record. However, there is a reference in the judgment of the trial Court that the car was disposed of as evidenced by the certificate issued by the Magistrate first class through auction for Rs.15,000 (Ex. P.W.1/1). Also Muhammad Azeem (P.W. 6) District Nazir, Peshawar, in his deposition before the Court has testified that the car was disposed of through public auction on 28th September, 1973, by the Magistrate. This statement was not challenged as there is nothing in the cross‑examination to that effect. Further Khadimat Hussain Khan (D.W. 1) Police Inspector, has stated in his evidence that he made an application for auction of the car and the Magistrate first class, Peshawar, was appointed to supervise the auction. He has also stated that before applying for auction he had made efforts to trace the owner of the car without any fruitful result. It is in the evidence of Muhammad Yousaf (D.W. 2) Senior Clerk, Moharrir Mall, Office of Collector, Peshawar, who produced the auction proceedings before the Court that the car was put to general auction. There is an order on the record by the trial Court to the effect that the certified copies of orders of Courts dated 25th January, 1978 and 24th October, 1978, were produced in evidence, but they are not on the record before us to examine the contents thereof. On the aforesaid state of evidence we are unable to critically examine the contention on behalf of the respondent whether the disposal of the car in question was made after compliance with the procedure provided in sections 523 and 524, Cr.P.C. However, on the legal plane, it appears that the property secured in the circumstances as are obtaining in the present case, the Magistrate to whom the seizure of the property is reported could order its disposal without inviting claims as required by subsection (2) of sections 523 and

524. There is nothing in the evidence to suggest that the real owner of the property was traceable by the time the motor car in question was disposed of through auction and in such circumstances obviously keeping the car in custody with the Magistrate or the police, for an indefinite period, would not have been in the benefit of the real owner, therefore, there is no warrant for the contention that the car was disposed of by means of an illegal order. However, the contention advanced on behalf of the respondent destroys his own case. If the auction proceedings through which the car was disposed of itself was illegal and ineffective in law then the legal taint that attached to the title of the auction‑purchaser would be transmitted through the intervening sale and attach to the property even in the hands of the respondent. He did not bring the suit on a grievance that he had suffered the loss of the property on account of illegal order passed by the Magistrate as a result of which the auction sale took place. No such case was pleaded at any stage of the proceedings but if that be his case then, he should have impleaded the Magistrate under whose order the auction had taken place as the main party defendant in the suit for any loss sustained by him as a result of his illegal act. However, in that case as held in Capt. Raza Ali v. Mukhtar Hussain and another 1977 S C M R 202, the Magistrate could have appealed to the protection under the Judicial Officers' Protection Act, 1850. But as he is not a party and the case pleaded is not the one as is being urged at this stage on behalf of the respondent, it is not necessary to go into that question. Whether an order under section 524 or section 525, Cr.P.C. was passed as an order while acting judicially on the part of the Magistrate, the matter stands settled by the Privy Council in Loftus Otway Clarke v. Brojendra Kishore Roy 391 A

163. The learned Judge in the High Court has, however, held that no proper inquiry was conducted by the Government officials to find out the owner of the car, before a request was made for its disposal through auction by a Magistrate. it is sufficient to state that the responsibility of the police officer under, the law only extended to report the seizure of the property found, inter alia, under circumstances which create suspicion of the commission of any offence to make a report to the Magistrate under subsection (1) of section 523, Cr.P.C. There is no material produced by the respondent that such action was not taken by the police officers. Once the seizure is reported as above, it is for the Magistrate to take proceedings for the disposal of the property whether the owner is known or unknown and as discussed herein before such act of the Magistrate would be protected, with the result that no suit for damages can lie if the Magistrate acted in good faith. There is no allegation of want of good faith on the part of Magistrate nor has the Magistrate been impleaded as a party, which is a fatal defect for a suit on a claim for damages against the Government. However, there is no justification for the Government to appropriate the sale proceeds of the motor car, which was taken away from the respondent, as the car has been handed over to its real owner. The respondent is, therefore, entitled to a decree for Rs.15,

000. For the foregoing reasons these two appeals are partly allowed, in that the decretal amount shall stand reduced from Rs.40,000 to Rs.15,000 with proportionate costs. The appellant shall also pay interest on Rs.15,00‑0 at the rate of Rs.4% per annum from the date of decree until realization, as the appellant had no right or other justification to withhold this amount, which ought to have been admitted and offered to the respondent. Both appeals are disposed of accordingly. M.B.A./G‑326/S Order accordingly.