1988 PLP 968 (MLD)

"Trough this criminal miscellaneous petition, the petitioner seeks quashment of an order dated 11‑7‑1988 passed by Ch.Muhammad Aslam Zia learned Additional Sessions Judge, Sheikhupura accepting the revision petition of respondent No.1 against the order dated 30‑1‑1988 passed by Mr. Munawar Ahmad Majoka, Magistrate lst Class, Sheikhupura relating to the matter of superdari of truck in dispute.

2. According to the petitioner the truck bearing Registration No. 1899/ZB chassis No. CJQ/613715 engine No.1S 8481 Model 1980 Bedford was originally owned by Haji Muhammad Rahim resident of Zhob in Province of Baluchistan which was purchased by the petitioner from him and was being driven by Shukar Ullah on behalf of the petitioner when it was checked on 16‑4‑1986 by Muhammad Yousaf, Excise Inspector Sheikhupura. On checking the Excise Inspector found that token tax of this truck had not been paid, therefore, he Mlpounded the truck and sent it to Police Station Khanqah Dogran to be kept there. The petitioner's case was that since the truck was registered at Zhob, therefore, according to law no token tax was payable in respect thereof. In order to confirm this stand of the petitioner the Excise Inspector addressed a letter to Registration Authority Zhob to furnish him a copy of form F of truck which was provided to the said Inspector from which it was found that the registration of the truck was in the name of Abdur Rahim. Instead of delivering back the truck to the petitioner, the Excise Inspector told the petitioner that only the owner of the truck namely Abdur Rahim could get delivery of the truck. According to learned counsel for the petitioner this Abdur Rahim was out of Pakistan having gone to Saudi Arabia from whom the petitioner purchased the truck on instalments and some amount was still payable therefore at the relevant time registration of the truck could not be transferred in the name of the petitioner. It was ultimate, found that the truck was not available at the Police Station Khanqah Dogran on which an F.I.R. was lodged on 24‑10‑1987 regarding theft of the said truck. During the investigation of this case it was found that two persons namely Zulfiqar and Mumtaz had stolen the truck and sold it to one Haji Ghulam Qadir of Khushab by one of the accused persons namely Mumtaz, under the same Registration No. 1899/ZB. During investigation the truck was recovered by the police from the custody of respondent No.1. The petitioner as well as respondent No.1 both made applications to the learned Magistrate for obtaining possession of the truck to them on superdari. The learned Magistrate by order dated ,30‑1 1988 rejected the application of respondent No.1 whereas the application made by the petitioner was accepted and the truck was directed to be given on superdan to the petitioner which is still with him. Feeling aggrieved the respondent No.1 assailed the said order by Cling revision petition before the learned Additional Sessions Judge, Sheikhupura which has been accepted by impugned order dated 11‑7‑1988 and the truck has been directed to be delivered to respondent No.1 on superdari.

3. Learned counsel for the petitioner argued that the impugned order of the learned Additional Sessions Judge is not sustainable inasmuch as there was sufficient evidence that the truck in dispute was owned by the petitioner. I have examined the impugned order. The case of the respondent No. I was that the vehicle in dispute is not the same truck bearing Registration N. 1899/ZB but as a . matter of fact this vehicle was initially a bus having Registration N. KB/699 of the Model of 1983 owned by one Malik Sher Bahadur which was converted to a truck with the permission of the Registering Authority of Khushab on application made by its owner. Learned counsel for respondent No.1 has placed on record photo copy of receipt showing that he purchased a vehicle for an amount of Rs. 1,97,000.00 the payment of which was made through bank draft mentioned in the receipt. A photo copy of certificate from Registering Authority that Bus KB/6 of Model 1983 was converted into truck has also been placed on the record. The case of respondent No.1 is that this vehicle is not the same truck which has been allegedly stolen from Police Station Khanqah Dogran but a different vehicle owned by the respondent No.1 having been purchased by him which was previously a bus. Learned counsel for the petitioner insisted that the vehicle is the same truck which was stolen. He admitted that chassis and engine number of this vehicle which is alleged to be the same truck have been found to be not identifiable because according to him they were tampered with while the truck was in the police station. I am afraid at this stage it cannot be readily accepted that while in the police station the respondent No.1 could have access to the truck to tamper with the chassis number and engine number, till it is clearly established during the trial. It has been rightly observed by learned Additional Sessions Judge in his impugned order that conversion of bus into truck took place before alleged theft of the truck and it could not be said at this stage that respondent No.1 fictitiously got this conversion letter without there being any bus in order to retain the stolen truck. I also endorse this view expressed by learned Additional Sessions Judge. It is a case where the identity of the stolen truck and its link with the‑, vehicle in dispute is seriously in dispute. The truck was recovered from the' custody of respondent No.1 who is claiming its ownership on the basis of documents and according to his case this truck has no connection with the truck which has been stolen and both are different vehicles. At this stage there was sufficient material to give superdari to respondent No.1 as elaborate inquiry into disputed question of title shall within his right to prove his ownership regarding the truck in dispute and to establish that the vehicle in dispute is the same truck owned by him which was stolen. Likewise, respondent No. 1 has a right to prove his version that the vehicle was previously a bus which was converted into truck and the same is not the stolen truck. Since respondent No.1 claims to be the owner of this truck having been converted from bus of 1983 Model and the truck of the: petitioner which was stolen admittedly is of 1980 Model, even if engine and chassis number were tampered with, expert evidence can be produced by both the parties to establish the Model of the engine which would be a relevant factor in these circumstances to clinch the matter. Till the evidence is produced by the parties to establish these facts, the order of learned Additional Sessions Judge in the facts and circumstances of this case does not suffer from any illegality of the nature calling for interference in extra ordinary jurisdiction of this Court under section 561‑A, Cr.P.C. The case has been decided on its own merits by the learned Additional Sessions Judge, Sheikhupura which cannot legally be lightly interfered with under section 561‑A, Cr.P.C. which jurisdiction can only be exercised in a case where the proceedings in which the impugned order has been passed amounts to abuse of process of Court or the impugned order suffered from acute illegality apparent on the face of the record or where the Court was found to have acted in a manner not warranted by law. All these grounds are not available against the impugned order in the instant case. The petitioner wants this Court to exercise jurisdiction under section 561‑A, Cr.P.C. in favour of interference in the impugned order on re‑appraisal of the case. I am afraid, this cannot be done in the instant case. Learned Additional Sessions Judge has passed the order on the basis of material placed before him on the basis of which finding could be arrived at in favour of respondent No.1. The truck was admittedly recovered from respondent No.1 and he having claimed ownership of the truck being a vehicle other than the property supported by documents, could not be deprived of its possession till such time the case was tried on merits.

4. For the foregoing reasons, this Criminal Misc. application is hereby "missed. However, the learned trial Magistrate before whom the case is pending is hereby directed to conclude the trial of the case positively before 31 -10‑1988 and report in compliance of this order to this Court. M.Y.H./F‑92/L. Petition dismissed.