1999 PLP 774 (YLR)

Ashiq Hussain Maher for A.‑G. for the State. The facts giving rise to present application as stated are that on 24‑12‑1997 one Zulfiqar Ahmed lodged F.I.R. No.566 of 1997 at Police Station Gulberg District Central Karachi under sections 403, 406, 418, 420, 424 and 426, P.P.C. wherein he stated that he is doing business of sale and purchase of motor cars at the Show Room "Cruising Motor" of his friend. Co‑accused Noman Tahir had taken five motor cars from him including the case property i.e. car bearing registration No.R‑1828 of Nissan Sunny Model 1990, 1000 C.C. for showing the same to some purchaser about 3/4 months prior to the registration of F.I.R. It has been further stated therein that co‑accused Noman Tahir did not return the same car nor he paid the price thereof However, on 15‑10‑1997 the said co‑accused Noman Tahir gave the complainant in writing that Car No.R‑1828 and Car No.Q‑2661 would be returned to him on 22‑10‑1997 and that the sale price of other three cars would be paid on or before 13‑4 1998 but in spite of this promise the said Noman Tahir did not return the cars nor paid the amount. In the F.I.R. Complainant Zulfiqar Ahmed alleged that co‑accused Aman and present applicant Mustafa Alam are mixed up with the main accused Noman Tahir and that all the three have jointly committed fraud and removed the cars. It is further stated that during investigation the applicant Syed Mustafa Alain Zaidi was compelled by the police to surrender the custody of Car No.R‑1828 as case property because this car was sold to him by co‑accused Noman Tahir who was partner with the complainant Zulfiqar Ahmed and due to the dispute between the partners the said Zulfiqar Ahmed lodged F.I.R. against the accused persons whereupon applicant surrendered the car before police. It is the case of applicant that he and complainant Zulfiqar Ahmed filed separate applications before IIIrd Judicial Magistrate Central Karachi for the custody of Car No.R‑1828 Nissan Sunny but the same were dismissed on 19‑1‑1980 on the ground that the registration book of the said cars bears the name of World Autos as owner of the said vehicle and that the applicant did not produce the No Objection Certificate from the owner. Thereafter, present applicant moved another application before the learned IIIrd Judicial Magistrate Central Karachi under section 516‑A, Cr.P.C. for the custody of the vehicle but it was also dismissed on 7‑3‑1998 on the ground that the applicant failed to produce the registration book containing the name of the owner of car in question. The applicant being aggrieved by the order of learned Judicial Magistrate preferred revision application before the Sessions Court which was dismissed by the learned Additional Sessions Judge, Central Karachi by impugned order dated 14‑3‑1998. It is contended by Mr. Nooruddin Sarki, learned counsel for the applicant that he is a bona fide purchaser of the vehicle from co‑accused Noman Tahir who was a business partner of the complainant Zulfiqar Ahmed Zaidi and that the car was in possession of the appellant where from it was taken away by Crime Branch Police, that during the course of investigation Syed Mustafa Alam Zaidi was proved innocent and such report under section 169, Cr.P.C. was submitted by the Investigating Officer before the learned IInd Additional Sessions Judge; that the applicant is entitled to the custody of car. Mr. Hassan Jafri, learned counsel for the complainant contended that the Car has changed different hands; that the applicant is not a bona fide purchaser; that the owner had made an application with regard to car snatching that the applicant is not entitled to relief claimed by him. Mr. Ashiq Hussain Mehar, learned counsel for Advocate‑General for the State contended that on 5‑5‑1998 Crime Branch (Investigating Agency) submitted report before the Court wherein it is mentioned that applicant is innocent and is bona fide purchaser; that the car was secured from the possession of applicant; that the custody of car may be restored to the applicant on Superdginama till the decision of title by the competent Court. I have heard the learned counsel for the parties and perused the material placed on record. There is no cavil about the fact that there existed business relationship between Complainant Zulfiqar Ahmed and Noman Tahir and according to F.I.R. five cars were handed over to Noman Tahir by Zulfiqar Ahmed for the purpose of sale. Noman Tahir delivered cheques to Complainant Zulfiqar Ahmed towards the purchase price. The said cheques were subsequently dishonoured. The documents placed on record reveal that applicant was a bona fide purchaser under an open letter of sale for consideration of three lacs. Admittedly the car in question was secured from the possession of applicant who claims to be the owner/bona fide purchaser thereof. Consequently applicant is entitled to custody of the car under Superdginama. In this context I am fortified by the decision of this Court in case of Zardullah Khan v. The State and another reported in PLD 1971 Karachi 906 and in case of Nasir Usman v. Ashique Ali and 5 others reported in 1982 PCr.LJ

306. For the foregoing reasons I set aside the order of two Courts below and order that the Car No.R‑1828 Nissan Sunny Model 1990, 1000 C.C. be delivered to applicant on Superdginama on furnishing security in the sum of Rs.3 lacs (Rupees Three Lacs Only) which is said to be the purchase price of the car till the final adjudication of the title of the car by the Competent Court. The security to be furnished to the satisfaction of the Nazir of this Court. 1 and

3. In view of the order passed at Serial No.2 both the M.A. No. 2139 of 1998 and M.A. No.3323 of 1998 have become infructuous and are dismissed. N.H.Q./M‑423/K Order accordingly.