P L D 1981 Karachi 206 (PLP)

Link Abbas Ahmed for Applicant. Murtaza Hussain for A.‑G. for the State. Abdul Razzaq and Muneeruddin Ahmad for Respondent No.

2. Dates of bearing : 31st May; 14th June; 5th, 15th, and 23rd July, 1980. This application under section 439, Cr. P. C., has been preferred by the applicant against the judgment dated 16‑10‑1978 of the learned VI Additional Sessions Judge, Karachi, whereby 'he dismissed the appeal filed by the applicant/appellant against the orders dated 22‑9‑1975, of the learned. District Magistrate, Karachi (East). .

2. The brief facts of the case are that Abdul Razzak, respondent No. 2 lodged his F. I. R., under section 379, P. P. C., on 21‑11‑197i, and the police during course of investigation of the case arrested the applicant and secured one oil tanker (truck) from his possession and handed over the same to the respondent No. 2 as "Supurdigar" and sent up the applicant in the Court of S. D. M. Civil tines, to stand trial under section 379, P. P. C., and discharged the applicant under section 253(2), Cr. P.‑ C., on 21‑11‑1973, but did not. pass any order regarding disposal of the case property (oil tanker) and left the . matter for decision to the civil Court. The respondent No. 2 also filed a civil suit against the applicant for declaration and injunction which was subsequently withdrawn by him on 23‑8‑1978. The applicant aggriev ed with the order of the learned S. D. M., Civil Lines, in respect of the case property preferred the Criminal Revision No. 85 of 1975; in this Court which was allowed, "with a direction that the District Magistrate, Karachi may hold a proper enquiry into the question of disposal of the case property of this case which shall be produced before him by the "Supurdigar". i.e. respondent No.

2. The District Magistrate, shall hear the parties and receive all evidence after giving them proper notice".

3. The .District Magistrate, Karachi (East) after hearing the parties as directed above came to the conclusion that respondent No. 2 had a greater claim over the tanker and made him entitled to the possession thereof under section 517(1), Cr. P. C. He passed such order on 22‑9-1975. The applicant being dissatisfied with the order referred to above, preferred the appeal which was dismissed by the learned VI ‑Additional Sessions Judge, Karachi, by his judgment dated 16‑10‑1978. It is against this judgment that the present Revision Application is filed.

4. The learned counsel for the applicant had hardly opened his side when Mr. Muneeruddin, Advocate for the respondent No. 2 raised a preli minary objection that the application is preferred against the judgment which has been passed on a time‑barred appeal and therefore this application is not maintainable.

5. The learned counsel for the applicant in reply to a preliminary objection contended that the applicant was not present on 22‑9‑1975, when the learned District Magistrate passed the orders regarding disposal of the case property. Moreover, no limitation is prescribed for such application. He has relied upon P L D 1972 Kar. 548 and P L D 1966 Lah. 918. 6: I have gone through both the citations referred to above and I am of the view that the proceedings regarding disposal of the case property are 'not an appeal or in nature of appeal but are of a special nature for which no limitation has been specifically prescribed. Moreover powers of the High Court in respect of an order of disposal of the . case property are independent and the High Courts have substantive jurisdiction by 'which i A will be open not only to modify, cancel or alter the orders but make such other orders or the proper disposal of the property as the facts of the case may require under the circumstances of the case. Therefore there is no force in the contention that this application is not maintainable.

7. The learned counsel for the applicant has also contented that the oil‑tanker was not even produced on the last date of hearing as it was all along not produced on any other date prior to it. Moreover it was not the function of the criminal Court to decide about a title as it's only function was to decide as to who was entitled to possession of it. It has also been contended that in case the theft is not established the property has to be returned to a person from whom it was secured during the course of investigation of the case. The applicant has been able to establish that the tanker in question was taken from his possession by the Police and handed over to the respondent No. 2 as "Supurdigar" and in case of his discharge in the theft case, it has got to be returned to him. He has relied upon (i) A I R 1931 Cal. 454, (ii) A I R 1956 All. 319 and (iii) P L D 1970 S C 343.

8. Mr.. Muneeruddin, the learned counsel for the respondent No. 2 has on the other hand contended that there is no illegality whatsoever in both the orders of the lower Courts. Moreover no finding for title has been given by the learned Magistrate in his order dated 22‑9‑1975. The order of the District Magistrate, only shows that the respondent No. 2 has purchased the oil‑tanker (truck) by way of an agreement and has paid the sum of Rs.31,000 only through bank receipts of United Bank Limited in pursuance of the agreement in question when the total amount of the oil -tanker (truck) was Rs. 40,000 only. Therefore the respondent No. 2 has been considered to be having a better claim to it's possession. He has relied upon 1972 S C M R 159.

9. Mr. Murtaza Hussain, the learned counsel appearing on behalf of the State, has supported the orders of the Courts below and has contended that the applicant's case is based on surmises not warranted by law. He has not been able to show as to why he did not attend the Court of the District Magistrate when the matter was fixed up for orders on 22‑9‑1975, when he himself did not attend the Court, what has been produced by him on the record in support of his contention that the oil‑tanker (truck) was not produced before the District Magistrate on 22‑9‑1975.

10. I have considered the contentions of the learned counsel for the applicant as well as respondents and have also gone through various citations referred to by them. I have carefully examined the orders of the District Magistrate, passed on 22‑9‑1975. There is no denial of the fact that no order deciding title of the truck has been passed by the learned District Magistrate. What he has decided is that the respondent No. 2 has a greater claim over the oil‑tanker (truck) and was therefore entitled to the possession of it under section 517(1), Cr. P. C. The contention that the oil‑tanker was not produced before the learned Magistrate, even on the 1st date when the order was announced is without any support from the record and therefore is of no value. The applicant himself was admittedly not present before the Magistrate on 22‑9‑1975, when the order for the oil‑tanker was passed by him. This allegation cannot be accepted that the oil‑tanker was not produced on that day particularly when the learned District Magistrate has very specifically stated in his order dated 22‑9‑1975, that the oil‑tanker was available outside the Court. The contention that the case property has got to be returned to the person from whose possession it was secured in the theft has not been established would not be a correct proposition in case of this nature. The citations referred to above by the learned counsel for the applicant are in cases having different facts and circumstances therefore a proposition of this kind cannot be accepted. The dispute of oil tanker is based on certain agreements and the ownership under the circumstance could only be established in the civil Court. In case of Ghulam Jillani v. Muhammad Yousuf and others 1972 S C M R 159, it has been held that, "it will be noticed that the question whether the property in dispute should be restored to any of the parties is a discretionary matter. After going through the impugned order I am satisfied that the High Court has exercised the discretion properly. There is disputed question of fact and law involved in this matted and the best course in the present case is that the parties should approach the civil Court for the determination of their title in respect of the vehicle in dispute. No case has been made out to interfere in this matter. The petitions are dismissed".

11. There is, therefore, nothing wrong with the orders dated 22‑9‑1975 C of the learned District Magistrate, Karachi (East) who has exercises his discretion and the appeal against the above orders has been rightly dismissed. The remedy under the circumstances does not lie in this Court.

12. In the result, I do not find any force in this application and dismiss it accordingly. s. a. D. Petition dismissed.