2005 PLP 2325 (YLR)

Petitioner Muhammad Yousaf, running rent a car business, has filed instant petition under section 561-A of the Code of Criminal Procedure (Act V of 1898), seeking quashment of the order of learned Additional Sessions Judge, Peshawar dated 16-9-2004, whereby Motor Car bearing Registration No.D-1789, Model 1989, Peshawar was given on Superdari to Abdul Wakeel respondent No.1 herein. The petitioner claiming tohave purchased the Motor Car in-question from one Javed son of Malik Durre Aman Khan, resident of Mansehra, in consideration of Rs.4,50,000 prays that the impugned order be quashed and possession of the vehicle be returned to him, being its lawful owner and bona fide purchaser. According to the petitioner, the car was given by him to Anwar Khan son of Haji Aqil Khan, resident of Gor Ghatri Peshawar on rent on 4-5-1999 for Rs.35,000 per month. The said Anwar Khan sold the vehicle through forgery to respondent No.l. On getting the knowledge that the car is present at Abbottabad, the petitioner lodged F.I.R. No.457 dated 14-8-1999 under sections 406/419/420/468/ 471/381, P.P.C. at Police Station, West Cantt., Peshawar. The car was recovered by the local police from a Bargain Centre namely Amin Bargain Centre, Peshawar. The petitioner moved an application before learned Judicial Magistrate, Peshawar for the grant of vehicle on Superdari. Respondent No. 1 also made similar application. Both, the applications were rejected by learned Judicial Magistrate, Peshawar by order dated 29-5-2004. Feeling aggrieved, revision petitions were filed there against before learned Sessions Judge, Peshawar, which were entrusted to learned Additional Sessions Judge, Peshawar for adjudication. By virtue of the order dated 16-9-2004 recorded by the learned Additional Sessions Judge, Peshawar, the request of the petitioner was turned down and his revision was dismissed. Superdari of the car was granted to Abdul Wakeel respondent No.1.

2. Mr. Gohar Rehman Khattak, Advocate for the petitioner forcefully contended that learned trial Court has totally ignored that petitioner is the lawful owner and purchaser of the car in question and respondent No.1 has purchased the car on the basis of fraud and forgery. The learned counsel also maintained that the impugned order has been recorded in haste without application of judicial mind. He relied on Qaiser Shafeeq Vohra v. The State 1991 MLD 2590.

3. Mr. Muhammad Adil, Advocate, appearing on behalf of the State frankly conceded that the impugned order is contrary to the material on record and cannot be allowed to remain intact. However, Mr. Rahatullah Afridi Advocate, for Abdul Wakeel respondent No.1 submitted that the impugned order has been passed on the basis of material on record and Superdari of the vehicle in question has been granted to respondent No.1 for valid reasons. In order to substantiate the pleas, he placed reliance on Mehboob Alam and 3 others v. The State PLD 1996 Karachi 144.

4. I have heard the arguments of learned counsel for the parties in detail in the light of the material on record.

5. It is true that under section 561-A, Cr.P.C. this Court has inherent powers to make such orders as may be necessary to give effect to any order or to prevent abuse of process of any Court or otherwise to secure the ends of justice. This power being extraordinary in nature, is to be exercised sparingly. The criterion for the exercise of power under this section is that the injustice complained of shall be clear, grave in nature and tangible. There is no cavil to the proposition that the revisional Court has jurisdiction to correct the error resulting from non-reading, misreading of evidence or where the Courts below fail to exercise the jurisdiction vested in them. Undoubtedly, section 516-A, Cr.P.C. enables a Magistrate to provide for interim custody of property pending the conclusion B of the trial. Section 523, Cr.P.C. provides the procedure by police upon seizure of property taken under section 51, Cr.P.C. or stolen. A perusal of the record would reveal that the car in question was given by the petitioner to one Anwar Khan son of Haji Aqil Khan, resident of Gor Ghatri Peshawar on rent on 4-5-1999, who sold the same to Wakeel Khan respondent No. I. On getting the knowledge that the car in question has been taken to Abbottabad, the petitioner lodged F.I.R. 457 dated 14-8-1999 under sections 406/419/4201 468/471/381, P.P.C. at Police Station, West Cantt., Peshawar. The car was subsequently recovered by the police from Amin Bargain Centre Peshawar. It may be recalled here that a civil suit regarding the car in question is pending adjudication in C the Court of learned Civil Judge, Abbottabad.

6. Be that as it may, without highlighting merits of the case, I find that learned Judicial Magistrate as well as learned Additional Sessions Judge, Peshawar have proceeded on wrong premises to reject the application of the petitioner and give the car in question on Superdari to respondent No.1. In view of the material on record and report of the petitioner made to the local police, I feel that the scales definitely tilt in favour of the petitioner and he is entitled for grant of Superdari of the car in question. In view of the matter, I am supported by the observations made in Ghulam Shabir Lashari v. The State 1991 PCr.LJ 287 Karachi. In the result and for the foregoing reasons, the petition is accepted and the impugned order dated 16-9-2004 is hereby set aside. The custody of the car in question shall, be delivered to the petitioner on Superdari on furnishing a personal bond in the sum of Rs.5,00,000 to the effect that he would not dispose of the said car till further orders passed by competent Court and would produce it before the competent D Court, as and when required. The Investigating Officer shall take back the car in question from respondent No.1 and produce the same before learned Judicial Magistrate, Peshawar, who shall deliver the same on Superdari to the petitioner, as stated above. H.B.T./434/P Petition accepted.