P L D 1968 Lahore 185 (PLP)

Asif Jan and Bashir Parvez for Respondent No.

2. This is a Revision Application filed against the order of the Magistrate, First Class, Lahore, dated the 30th of December 1966, ordering the custody of jeep No. KAA 4553 to be given to Mst. Jehan Ara on the basis of being its lawful owner. It arises out of the following facts.

2. It is alleged that Lahore Race Club had purchased jeep No. KAA 4553 from Miss Tauqir Zohra, daughter of Syed Fida Hussain Safvi on the 16th of August 1965. Mr. Fida Hussain Safvi died on the 10th of February 1965. Mst. Azam Jehan Ara therefore made an application on the 22nd of July 1965, to the Senior Superintendent of Police, Lahore, that she and her five daughters were the only hairs of Mr. Fida Hussain arid that they were deprived of their property consisting of a bungalow on Masson Road and other immovable property. This very application was forwarded to the Police Station, Civil Lines, Lahore, where it was registered as First Information Report for an offence under sections 448 and 380, P. P. C. against Amir Ahmad Khan who was in occupation of the bungalow. During the investigation of the case, the police took possession of the jeep from the applicants on the 9th of October 1965. The applicants and Mst. Jehan Ara therefore applied for the jeep to be given on Superdari to them. The Ilaqa Magistrate by an order dated the 14th of October 1965, ordered the jeep to be given on Superdari to the applicants till the disposal of the case. The case was challaned under sections 448 and 380, P. P. C. against Amir Ahmad Khan only. Mst. Azam Jehan Ara being aggrieved with the order passed by the learned Magistrate on the 14th of October 1965, filed a revision application in the High Court (Revision Application No. 815 of 1965) which was dismissed on the 26th of October 1965. The following order was passed by the High Court: "The respondent No. 2 appears to be a bona fide purchaser. Therefore, the jeep in question was rightly given to him on Superdari. In view of the above this application is dismissed." Mst. Jehan Ara thereafter made another application on the 19th of November 1966, to the Ilaqa Magistrate asking for the jeep to‑be taken over by the Court. Notice was issued on this application to the applicants for the production of the jeep. Before this application could be disposed of another application on the 21th of December 1966, was filed by Mst. Azam Jehan Ara in which a prayer was made that the jeep should be given to her on Superdari as she was its legitimate owner. The learned Magistrate without giving notice of this application to the applicants passed an order on the 30th of December 1966, directing the possession of the jeep to be given to Mst. Azam Jehan Ara on the sole ground that she was the owner of it. It is against this order that the present revision application has been filed.

3. I asked the learned counsel for the respondent Mst. Azam Jehan Ara as to under what provision of law did he claim the custody of the jeep. He stated that it was under section 516‑A of the Code of Criminal Procedure that he claimed the custody of the jeep and it was under this section that the custody of the jeep had been given. It is, therefore, necessary that section 516‑A, Cr. P. C., should be reproduced. It reads as under:‑ "516‑A. When any property regarding which any offence appears to have been committed or which appears :o 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 or natural decay, may, after recording such evidence as it thinks necessary, ardor it to be sold or otherwise disposed of." A bare reading of this section makes it clear that the Magistrate having the jurisdiction has the authority to make such an order as he thinks fit for the proper custody of the property regarding which an offence appears to have been committed or which appears to have been used for the commission of an offence and which is produced before him during an inquiry or trial. It is an admitted position that the jeep in question was not used for the commission of any offence. It is also admitted that the complaint on the basis of which the case was brought before the Court did not make the applicants the accused in the case. The charge under sections 448 and 380, P. P. C., on which the case was brought in Court was only against Amir Ahmad Khan. A Under these circumstances, no arguments can be advanced that an offence in respect of this jeep had been committed. Under these circumstances, the jeep even if it be assumed to have been brought before the Court was neither the subject‑matter of any criminal case nor was it used for the commission of any offence. The custody of the jeep as such could not be given away by the Magistrate under section 516‑A, Cr. P. C. Apart from that, it is admitted that the applicants had come in possession of this jeep as bona fide purchasers having paid Rs. 6,000 by way of a cross‑cheque to Miss Tauqir Zohra. The contention of the other side only is that Miss Tauqir Zohra had no authority whatever to sell this jeep to the applicants. The question whether Miss Tauqir Zohra had the authority to sell the jeep or not is a question which could not be said to be within the competence of the Magistrate to decide. Prima facie the applicants were the bona fide purchasers and admittedly the jeep was secured from their possession. There is, however, nothing on the record as to in what circumstances and how was the jeep secured by the police. The complaint which was filed by Mst. Azam Jehan Ara on the 22nd of July 1965, merely talked of a trespass having been committed in the bungalow on Masson Road. It also talked of a theft of an immovable property having been committed from that bungalow. It does not in the remottest possible manner make any reference to the jeep. Even when the challan was presented no accusation of the theft of the jeep having been committed by Amir Ahmad Khan seems to have been made. The jeep allegedly was sold by Miss Tauqir Zohra and it was purchased by the applicants. There is thus no justification even for the police for securing this jeep from the applicants. Whatever the circumstances under which this jeep was secured, there can be no two opinions on the question that the jeep could not become the subject‑matter of a decision by the learned Magistrate under section 516‑A, Cr. P. C.

4. The Magistrate also seems to have shown disregard for the orders of the High Court passed on the 26th of October 1965. The matter had come before his predecessor who had decided that the possession of the jeep should be given to the applicants on the 9th of October 1965. The revision application filed against this order before the High Court was dismissed. It was expressly said by the High Court that the applicants being the bona fide purchasers of the jeep, were rightly considered to be entitled to its possession. The High Court had thus made it very clear in its order dated the 26th of October 1965, that the bona fide purchasers in possession of the property were prima facie entitled to the custody of it under section 516‑A, Cr. P. C. It is said that respondent Mst. Azam Jehan Ara did not mention the fact of the decision by the High Court in a revision application filed by her in her applications dated the 19th of November 1966 and 27th of December 1966, but that is no argument for the Magistrate ignoring the order of the High Court regardless of the fact whether a mention was made by Mst. Azam Jehan Ara or not. The order of the High Court must be available on the record of the case and could have easily been seen by the Magistrate if he had cared to look for it. The Mgistrate had also no power or authority to cancel the order of his predecessor more so without giving a notice to the applicants.

5. In view of what I have said above, I find the order passed by the Magistrate dated the 30th of December 1966, to be illegal and uncalled for. I consequently set it aside and direct that the custody of the jeep shall be taken back from respondent Mst. Azam Jehan Ara and given over to the applicants on Superdari till the disposal of the case. The Revision Application thus stands allowed. S. A. H.