1976 P Cr (PLP)

3. By a subsequent agreement dated the 12th June, 1974 the same Mohammad Hussain Inayatullah entered into an almost identical agreement in regard to the same car with the petitioner, Karim Bux.

4. One day before the day of this agreement, that is to say upon the 11th June, 1974 respondent No. 2 filed a complaint alleging that he had purchased the car from Mohammad Hussain Inayatullah and that the petitioner Karim Bux was his driver and, being entrusted with the car in that capacity, had misappropriated the car. The complaint was under sec tion 408 of the Penal Code and an application was also made for the issuance of a search warrant under section 98, Cr. P. C. for the seizure of the car from the possession of the petitioner. The car was in fact recovered from the petitioner and thereafter, upon the application of respondent No. 2, the learned Magistrate passed an order under section 516‑A of the Criminal Procedure Code directing that pending the decision of the case the cat should be given to respondent No. 2 on his furnishing a surety in the sum of Rs. 25,

000. It is against this order that the present application in revision is brought it being prayed that the order should be set aside and in its place substituted an order giving interim custody of the car to the petitioner.

5. On behalf of the petitioner it was first argued that the search warrant was itself illegal and that the order under section 516‑A, being the consequence of the execution of that search warrant was, on that account, also illegal and ought, therefore, to be set aside. It was pointed out that the warrant describes the house of the accused that is the petitioner as "a place for the deposit of stolen property" and, since even upon the allegation of the complainant, no theft of the car had taken place but merely an offence under section 408 the car could not be described as stolen property. The argument is, in my opinion. fallacious for two reasons. In the first place it overlooks the definition of the expression "stolen property" given in section 410 of the Pakistan Penal Code which reads thus: "

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 tile possession thereof, it then ceases to be stolen property."

6. It will be seen, therefore, that even property which has been criminally misappropriated comes within the meaning of the expression. In truth, however, this is really besides the point, for the order which is attacked before me is the one passed under section 516‑A of the Criminal Procedure Code which reads thus: "516‑A. 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 natural decay, may, after recording any evidence as it at thinks necessary, order it to be sold or otherwise disposed of." There is no reference in this section to stolen property as such and the section is intended to make provision for the proper custody of property regarding which any offence appears to have been committing pending the disposed of the case itself.

7. Although it is only under section 516‑A that the order can be made I think it think a criminal Court ought to be guided by the provisions of section 517 of the same which provides for the disposal of property at the conclusion of a trial. It is unnecessary to quote this section in its entirety and it suffices to say that unless the property is to be destroyed or confiscated ought under that section it is to be delivered "to any person claiming to be entitled to possession thereof". The primary consideration which the Court must, therefore, keep in mind both during and at the end of the trial is the question as to who is entitled to the possession. Be it noted that the Criminal Code is not concerned with the ownership of the property but only with the present entitlement to possession.

8. It was argued by learned counsel for the person who is entitled to such possession would obviously be the person from whose possession the property lass been recovered. I do not think that the prosecution is as obvious as that: I have no doubt that in the absence of any material upon which a contrary view could be taken, the person from whose possession the property has been recovered would be such a person but, if there be such material, I think that the Court may and indeed must examine that material for the purpose of saying who the person entitled, prima facie, to the possession of the property is.

9. Learned counsel for the appellant relied upon three reported cases for the purpose of persuading me that the only proper course for the Magistrate would have been to give interim custody of the car to the petitioner. The first of these is a case decided by a Single Judge of this Court and reported in 1974 P. Cr. L J

59. This was a case in which this Court quashed the prosecution of an accused person mainly on the ground that upon the same evidence the Supreme Court had already quashed the proceedings as against a co‑accused. I am entirely unable to see how this case has arty relevancy to the present: In the present case the petitioner has not applied for quashment and there was no question in the reported case of any order under section 516‑A, Criminal Procedure Code.

10. Reliance was then placed upon the Supreme Court case Ghulam Hussain v. The Sate (1970 S C M R 605). Now in this case a complaint had been filed by the owner of a truck which he sold sort hire‑purchase basis to the accused person alleging that he had (Seen cheated. The truck was recovered from the accused and the `Magistrate directed that it be kept in police custody. The High Court was moved for the quashment of the entire Proceeding and also for setting aside the order under section 516‑A but the High Court at that stage refused to interfere. Thereafter the Magistrate directed that the possession and the truck tae handed over to the complainant and in revision the High Court set aside the Magistrate's order and directed that it be handed over to the accused from whose possession it had been recovered. The Supreme Court considered that the view taken by the High Court was correct and refused to grant leave holding that it was not then possible to say that the accused had indeed obtained possession of the truck by fraud. In my respectful view this case is entirely distinguishable for in the present case admittedly there was a prior agreement between respondent No. 2 and Mohammad Hussain Inayatullah and it was not simply a question of the truck being recovered from a person against whom the complainant had made the accusation of fraudulently obtaining possession thereof or of misappropriating it.

11. Reliance was finally placed on another case of this Court reported in 1972 P Cr. L J 1351. Here the Magistrate had left the question of possession to the parties to be decided by a contest before the civil Court out this order was set aside by the Sessions Court in setting aside the rider of the Sessions Court the High Court took the view that a criminal Court could not determine the ownership of the property and that in any case it had no jurisdiction is the matter for the property was never in the custody of the Court at all but only held by the police. Clearly this cane has no application whatever.

12. Now in the present case I think there was enough material upon which the learned Magistrate could come to the conclusion which he did. The earlier agreement is admitted and there is also on record a letter of Mohammad Hussain Inayatullah addressed to respondent No. 2 dated the 29th June 1974, in answer to a notice addressed to him by respondent No. 2 through an Advocate. In this letter receipt of the instalments is admitted and Mohammed Hussain Inayatullah suggests that they cancel their contract and the should return the money for litigation would not lead to any useful purpose It is to be noted that in the meantime the complaint filed by respondent No. 2 had already been instituted. This shows that the existence of the earlier agreement and the continued payment cannot be denied. This was not a case, therefore, simpliciter, of enquiring from whop, possession had been taken during, the trial and given it back to him on the ground that prim facie he would be entitled to possession.

9. In this view of the matter this application fails and I hereby dismiss it. Application dismissed.