P L D 1966 (W (PLP)

Aslam Naqi for Respondent No.

3. Dates of hearing : 4th, 6th and 11th April 1966. The facts, as stated in Criminal Revision No. 263 of 1966, filed by Abdul Waqar, are that he purchased one omni bus No. 1920/MY (old number, the new number being LED‑6132), 1961 Model, from Sh. Bashir Ahmad for a consideration of Rs. 22,250 on the 17th of May 1963. A sum of Rs. 13,750 was paid as earnest money and the balance of Rs. 8,500 was to be paid through cheques. Sheikh Bashir Ahmad executed a receipt in the presence of Hamid Asghar and Wali Muhammad, who are marginal witnesses of the receipt, and according to the recital thereof, the balance was to be paid by the buyer through cheques. Sheikh Bashir Ahmad insisted on that very day for the issuance of post‑dated cheques. Abdul Waqar agreed and drew six cheques Nos. D/3 239808 to D/3 239813, dated 6‑6‑65, 6‑7‑65, 6‑8‑65 6‑10‑65 and 6‑11‑65, respectively, for Rs. 1,500 each on Muslim Commercial Bank Limited, Montgomery. Cheques Nos. D/3 239808 dated 6‑6‑65, and D/3 239809, dated 6‑7‑1965, were cashed while the remaining cheques were dishonoured. The first cheque drawn by Abdul Waqar in favour. of Sh. Bashir Ahmad was due on 6‑6‑65, but Sh. Bashir Ahmad was in need of money. There fore, Abdul Waqar, as desired by Sh. Bashir Ahmad, deposited a sum of Rs. 700 in his account No. 390 in the Standard Bank Limited, Montgomery, on the 31st of May 1965. Similarly, another instalment of Rs. 1,200 towards the consideration of the omni bus was deposited in the same Bank in his account on the 8th of June 1965. The deposit receipts of these two amounts, along with the original receipt executed by Sh. Bashir Ahmad, was placed on record as Annexes `A', `B' and `C', respectively. The balance of Rs. 3,600 of the sale price was paid without a receipt in the presence of respectable and, as such, the total consideration for the bus has since been paid by Abdul Waqar to Sh. Bashir Ahmad. It is alleged that the possession of the vehicle was delivered the first day after the payment of earnest money and that Abdul Waqar was plying the bus on commission with Messrs Lower Bari Transport Society. It was also asserted by Abdul Waqar in his petition that he replaced the engine of the bus at a cost of Rs. 13,

000. The purchase receipt for the new engine and the affidavit of Muhammad Sadiq, who fitted the engine to the vehicle, were also placed on record as Annexes `E' and `G', respectively., It is further stated by Abdul Waqar that he asked Sh. Bashir Ahmad for the transfer of the vehicle to his name after the payment of the full consideration, but the latter told him that he would be able to issue a transfer letter after the vehicle would be transferred to his name in the office of the Motor Registering Authority, Montgomery. On the 11th of November 1965, Abdul Waqar got the vehicle transferred to the flame of Sh. Bashir Ahmad and on the next day of the transfer, Sh. Bashir Ahmad removed the vehicle from the General Bus Stand, Montgomery, with the help of his co‑accused. Abdul Waqar contacted Sh. Bashir Ahmad for the return of the same, but Sh. Bashir Ahmad insisted for the payment of the balance of Rs. 3,000 which, according to Abdul Waqar, were paid to him on the 19th of December 1965. It is urged that Abdul Waqar made all possible efforts to recover the vehicle from Sh. Bashir Ahmad, but when all his efforts bore no fruit, he made an application on the 12th of February 1966 to the Superintendent of Police, Montgomery, and as a result thereof a case was registered against Sh. Bashir Ahmad and others under section 379, P. P. C. The police in the course of the investigation seized the vehicle in dispute.

2. In Criminal Revision No. 206 of 1966 filed by Sh. Bashir Ahmad it is claimed that he is the sole owner of the vehicle, having purchased it from Muhammad Sharif for Rs. 24,000 in the year 1964, and that after its purchase Sh. Bashir Ahmad was plying the same on commission basis with different transport companies as he himself did not possess a route permit. It may incidentally be mentioned that there is no mention of the purchase of the vehicle in dispute in the petition of Sh. Bashir Ahmad as claimed by Abdul Waqar. In Court, Sh. Bashir Ahmad completely denied the execution of the receipt dated the 17th of May 1965 and asserted that a false case under section 379, P. P. C. had been registered against him and others and that the vehicle had been taken into possession by the police investigating the case on the 24th of February 1966 from Badami Bagh Stand, while his driver was at the wheels.

3. It is not clear from the record whether the police reported the seizure of the vehicle to the Magistrate as the police should have done. According to the data available on the record, Abdul Waqar and Sh. Bashir Ahmad filed applications before the learned Additional District Magistrate, Montgomery, wherein both prayed for handing over the vehicle in dispute on security, The applications of the two contestants were still pending adjudication by the learned Additional District Magistrate when Abdul Waqar filed a declaratory suit in the Civil Court that he was the owner of the bus and also made an application for an injunction restraining Sh. Bashir Ahmad from taking its possession. The learned Senior Civil Judge, by his order dated the 15th of March 1966, ordered status quo to be maintained. On the 17th of March 1966, when the applications filed on behalf of Sh. Bashir Ahmad and Abdul Waqar came up for hearing before the learned Additional District Magistrate, he did not pass any order on their applications and referred the parties to obtain the verdict from the Civil Court.

4. Aggrieved with the aforesaid order of the learned Additional District Magistrate, Sh. Bashir Ahmad made an application under section 439, read with section 561‑A, Cr. P. Code for the revision of the order of the Additional District Magistrate, wherein he prayed that the bus in dispute be released on security to him. This petition was admitted by my order dated the 24th of March 19

66. During the pendency of this petition Abdul Waqar also impugned the order of the Additional District Magistrate by a revision petition under S. 439, Criminal Procedure Code, and prayed for setting aside the order of the Additional District Magistrate and for the release of the bus to be delivered to him on security. This order will dispose of both the revision petitions (Nos. 206 and 263 of 1966).

5. Mr. Ghulam Mujaddid Mirza, learned counsel appearing for Sh. Bashir Ahmad, contended that the learned Additional District Magistrate should have disposed of the application made to him by his client for the disposal of the vehicle, as required under section 523, Cr. P. C., and should not have awaited decision of the Civil Court and that this Court should release the bus on security pending final decision. But on the last date of hearing the learned counsel turned a somersault and urged that this Court should not adjudicate upon the question of giving the automobile on security but should direct the learned Additional District Magistrate to go into this question. Mr. S. M. Anwar, who also appeared for Sh. Bashir Ahmad in Criminal Revision No. 263 of 1966, adopted the arguments of Mr. G. M. Mirza and strenuously pleaded that a direction be issued to Additional District Magistrate to dispose of the respective applications of the parties. It was urged on behalf of Sh. Bashir Ahmad that he is the owner of the vehicle according to the certificate Annex `B' issued by the Motor Registering Authority and that at the time of the seizure of the bus by the police the vehicle was found in possession of the driver employed by Sh. Bashir Ahmad.

6. Mr. Barkat Ali Saleemi, learned counsel for Abdul Waqar, contended that the vehicle should be given on security to his client because he had paid the full price‑ of the vehicle to Sh. Bashir Ahmad, of which sufficient documentary evidence had been brought on the record in the form of receipt Annex `A', deposit receipts Annexes `B' and `C', receipt regarding the purchase of engine Annex `E' and the affidavits of the mechanic (Annex `G') who replaced the engine, and Ch. Muhammad Sadiq (Annex `D') as to the payment of the balance of Rs. 3,000 to the seller by Abdul Waqar.

7. The first question that falls for. determination is whether the learned Additional District Magistrate should have proceeded to dispose of the applications made for the release of the bus on security or should have awaited the decision of the Civil Court. Mr. G. M. Mirza, learned counsel for Sh. Bashir Ahmad, vehemently argued that the learned Additional District Magistrate abdicated his function in favour of the Civil Court and stayed the adjudication on the petitions, which he was bound to dispose of in view of the mandatory provisions of section 523, Cr. P. C. He contended that the question pending decision by the Criminal Court was the question as to who was entitled to the possession of the vehicle, while the Civil Court had to determine the question of the title of the vehicle, and that even if the issue involved and agitated before the Civil and the Criminal Courts was the same, the matter had to be considered on its own merits by the respective Courts and the learned Additional District Magistrate should have proceeded to dispose of the applications made before him. On the first day of the hearing of this case, this proposition of law was opposed to by the learned counsel for Abdul Waqar, but on the final date of hearing, after the admission of the revision petition filed by Abdul Waqar. Mr. B. A. Saleemi also joined hands with Mr. G. M. Mirza, and the learned counsel both for Sh. Bashir Ahmad and Abdul Waqar contended that the learned Additional District Magistrate should have disposed of their applications as required under law:

8. But Mr. Barkat Ali Saleemi, learned counsel for Sh. Bashir Ahmad, contended that this Court had wide powers to dispose of the question of the release of the vehicle on security if the Additional District Magistrate had failed to do so. Mr. G. M. Mirza, on the other hand, in support of his above contentions placed reliance on Bhagirath Bhagat v. Ram Narain Sahu (A I R 1930 Pat. 194), wherein Wort, J., observed : "There is no invariable rule that a criminal proceeding should be stayed pending the result of civil litigation which deals with the same matter. It must be assumed that each Court must be allowed to proceed with the business on its file without any intervention of this kind." Another case relied upon by Mr. G. M. Mirza is Chitrala Ramiah v. Natukula Ramiah and another (A I R 1927 Mad. 778) where Jackson, J., observed: "Applications for staying of criminal proceedings during the pendency of a civil suit are sometimes argued as if there were an invariable rule that when the same issue is agitated both in the civil and criminal side, the civil shall take precedence of the criminal Court. This is not so. Each case must be considered on its own merits and the only general rule that can be adumbrated is that every Court should be left as far as possible to dispose of the case on its file with the utmost expedition . . . . . . . . . It must be assumed that in either Court justice will be done, and which Court precedes the other is merely a question of convenience."

9. I am in respectful agreement with the view expressed in, the aforesaid two judgments cited at the bar and am clear in my mind that the learned Additional District Magistrate should have disposed of the applications, independent of the civil suit pending between the parties, in view of the mandatory provisions of section 523, Cr. P. C. A plain reading of this section makes it clear that a police officer, after the seizure of a property, is bound to report to a Magistrate for his orders respecting the 'disposal of that property and the Magistrate is bound to pass an order that the property be given to the person entitled to the possession thereof. The duty cast upon the Magistrate under this section is to make an inquiry as to the person who is entitled to the possession and to order the delivery of the possession of the property to the person found entitled to it. By inquiry I should not be understood to mean a judicial inquiry, but all that a Magistrate is to examine is the police file and other material placed before him by the contestants. In the instant case, the police investigating the case seized the bus in the course of the investigation, and the learned Additional District Magistrate was bound to dispose of the question as to which of the, parties was entitled to its possession under section 523, Cr. P. Code. No doubt, Abdul Waqar had gone to the Civil Court and had instituted a declaratory suit, but the learned Additional District Magistrate, to me it appears, by not passing an order did not exercise the jurisdiction vested in him by law and in this way drove away the parties to undergo costly civil litigation.

10. I may with advantage refer to the following judgments in support of my conclusions. In Ma Thein Nu v. Ma The Hint ((1920) 21 Cr: L J 561), Rutledge, J., observed : "In dealing with an application for the restoration of property, under section 523 of the Criminal Procedure Code it is not incumbent upon the Magistrate to hold a judicial inquiry upon oath. All that the law requires is that the Magistrate should have material before him to satisfy himself who is entitled to possession and that the High Court has jurisdiction to interfere with an order made under section 523, Cr. P. C. and to order restitution." In Lakshmichand Rajmal v. Gopikisan (A I R 1936 Bom. 171), Beaumont, J. observed : "Under section 523 what the Magistrate bas to consider is, who is entitled to the possession of property which has been seized by the police. Where it is proved that the person from whose possession the property was seized came by it dishonestly, the Magistrate may have to consider questions of title in order to determine the best right to possession. But where it appears that the police have seized property from a person who is not shown to have committed any offence in relation to that property, then in my opinion the Magistrate can only hold that that person is entitled to possession of the property." In that case the property was directed to be returned to the petitioner. In Chuni Lal v. Ishar Das (A I R 1924 Lah. 76), Broadway, J., observed in dealing with an order passed on police papers by a Magistrate under section 523, Cr. P. C.: "The next question is whether this Court has jurisdiction to interfere with the order in revision, it being contended by Mr. Nand Lal that no such power existed. The authority already cited, i.e., Ma Thein Nu v. Ma The Hnit ((1919) 57 1 C 81) and which was referred to by Mr. Nand Lal is, however, opposed to this contention, and I have no doubt that, on a proper case being made out, a High Court has jurisdiction to examine orders passed under section 523, Criminal Procedure Code." I am, therefore, clear in my mind that this Court, in exercise of its revisional and inherent powers, has the jurisdiction, on a proper case being made out, to pass an appropriate order for releasing, the property on security if the Magistrate had omitted to do so.

11. Reverting to the merits of the case, I may refer to the receipt, dated the 27th of November 1965, alleged to have 'been executed by Bashir Ahmad in favour of Muhammad Alam for the sale of bus No. 6974‑LEB. This receipt has not been denied by the learned counsel for Sh. Bashir Ahmad to have been executed by his client. Besides, the signature of Sh. Bashir Ahmad on the receipt has a close resemblance to the signature on the receipt executed in favour of Abdul Waqar. The documents on the record prima facie go to show that if not all a substantial part of the consideration for the bus had been paid to Sh. Bashir Ahmad.

12. With the above observations, I accept the revision filed by Abdul Waqar and dismiss the petition of Sh. Bashir Ahmad. The order of the learned Additional District Magistrate dated 17th of March 1966, is set aside and it is ordered that bus No. 1920/MY (old number) and LED. 6132 (new number) be handed over to Abdul Waqar on his furnishing security in the sum of Rs. 30,000 (thirty thousand) to the satisfaction of the Additional District Magistrate, Montgomery.

13. Before concluding, I would like to make it clear that this order should not influence the mind of the Magistrate to arrive at his independent finding in order to dispose of the matter as required under section 517, Criminal Procedure Code. He would be at liberty to determine the claims of the respective parties to the bus and. to pass an appropriate order as he may deem fit. S. Q. Order accordingly.