By this order I propose to dispose of main Criminal Misc. No. 191-M-1978 and Criminal Misc. Nos.
329-M of 1978 and 370-M of 1978. All these matters relate to the possession of Bus No. 2687 LRA.
2. Facts providing necessary background of these cases as gathered from the record and the arguments raised before me, stated briefly, are that bus in dispute was originally owned by the petitioner No. 1 and one Ghulam Murtaza. They entered into a hire purchase agreement with respondent No. 2 Qutab-ud-Din on 24th June, 1976. Bus was handed over to respondent Qutab-ud- Din. Respondent's case is that he had fulfilled the terms of the agreement and had thus become owner of the bus. However petitioners maintained that they took the posses--sion of the bus and paid back a sum of Rs. 10,000 to the respondent. The petitioners then spent a sum of Rs. 30,000 on the repair of the vehicle. On 28th April, 1977 petitioners purchased the share of Ghulam Murtaza and thus became sole owner of the bus.
3. The respondent on 19th May, 1978 instituted a civil suit on the allegations that the bus in dispute was in his possession and the peti--tioners be refrained from interfering with his possession. This was essentially a suit for a permanent injunction against the petitioners. Interim injunction was issued in favour of respondent Qutab-ud-Din. This matter ultimately came to this Court .In Civil Revision No. 749 of 1.77. In the meantime, under circumstances that I propose to notice presently, respondent Qutab-ud-Din lost possession of the bus and therefore this revision petition was accepted on 26th October, 1977 and application for stay was dismissed. It was however, observed that if the respondent succeeds in getting back the possession of the vehicle he could submit a fresh application for stay. Learned counsel for the respondent admits that in this suit not filed any application for stay by now.
4. Respondent Qutab-ud-Din on 16th June, 1977 got a theft case registered against the petitioners inter alia on the allegation that the petitioners have stolen away the bus. During the investigation of this case police recovered the bus from the possession of the petitioners on 17th June, 1977.
Possession was given over to respondent Qutab-ud-Din on 19th June, 1976. This order, presumably, was passed under section 516-A of the Cr. P. C. The present petitioners contested this matter and objected to the order of the Magistrate handing over the bus to the respondent. A fresh order in presence of the parties was ultimately passed on 29th June, 1977. Bus was given to the respondent on supardari till the disposal of the criminal case. Petitioner questioned this order through a petition under section 520, Cr. P. C. Before the Sessions Judge, Sheikhupura, who by order dated 27th July, 1977, made the order of the Magistrate, dated 29th June, 1977 absolute. However during the pendency of the proceedings before the learned Sessions Judge he on 2nd July, 1977, passed an interim order giving over the bus in the possession of the police.
5. After the order of the learned Sessions Judge dated 27th July, 1977 another development took place. The police after investigation found the theft case to be false and got the F.I.R. Cancelled on 24th August, 1977. The petitioners therefore started making efforts for getting possession of the bus.
On 28th February, 1978 he filed a civil suit for a declaration and injunction. He also applied to the learned Magistrate to pass order in terms of section 517, Cr. P. C. Learned Magistrate on 3rd November 1977, passed an interim order giving over the possession of the bus to the petitioners. In compliance of this order, he, to fact, took over the bus which is in his possession till today. Final order in the matter was passed by the learned Magistrate on 6th Novem--ber, 1977. He took the view that since the criminal case has been cancelled the bus should be given back to the person from whose possession it was recovered by the police. Respondent Qutab-ud-Din questioned the order dated 6th November, 1977 through a petition under section 520, Cr. P. C. This has been disposed of by Mr. Sibtain Raza Naqvi, Additional Sessions Judge, Sheikhupura by order dated 16th February, 1978. He accepted this petition on the short ground that, earlier, by order of the Additional Sessions Judge dated 27th July, 1977, possession of the bus was given over to the respondent and this order had become final. The petitioners in Cr. Misc. No. 191-M of 1978 have questioned the correctness of this order.
6. It may be noticed that on the suit filed by the petitioners on 28th February, 1978 at Jaranwala, interim injunction in their favour was issued which has been confirmed by the order dated 16th July, 1978. I am informed by the learned counsel for the respondent that the suit filed by the respondent Qutab-ud-Din is also pending at Nankana, District Sheikhupura. He has moved this Court for the consolidation of the two suits. Further proceedings have beep stayed.
7. To complete the narration of the case I may also notice that two more criminal cases have been registered after the cancellation of theft case. One is a case under section 406, P.P.C. At the instance of the petitioner against inter alia respondent Qutab-ud-Din. 1t is alleged that during the period the bus has been in his possession on spurdari, he misappropriated valuable spare parts.
The other is also an F.I.R. Under section 406 at the instance of respondent Qutab-ud-Din against the petitioners on the allegations that during the time the bus was in their possession they have removed and misappropriated certain spare parts. Both these matters are pending investigation.
Respondent Qutab-ud-Din has also filed a complaint under section 379, P.P.C. On the same occur- -rence as was the subject matter of the first F.I.R. Recorded at the instance of the respondent on 16th June, 1977. I am informed that the petitioner have been summoned in this case.
8. It is argued that the impugned order of the learned Additional Sessions Judge dated 16th February, 1978, is bad for the following reasons :-
(i) The first order of the Magistrate dated 29th June, 1977, was passed when the investigation in the theft case was pending. This order was confirmed by the learned Additional Sessions Judge on 27th July, 1977. After cancellation of the criminal case learned Magistrate was obliged to pass an order in terms of section 517. The order of Magistrate dated 6th November, 1977 was, therefore, passed with jurisdiction and the earlier order of the learned Additional Sessions Judge, dated 27th July, 1977 was not a bar in his way to dispose of the matter in terms of section 517, Cr. P. C.
(ii) The learned Additional Sessions Judge has not fully appre--ciated the observation of this Court made in Cr. Misc . No. 545/Q of 1977. It was observed :- "If the revision of the petitioner succeeds and the stay order is vacated, the question will be of the issuance of any order for the delivery of the bus and only the trial Court has to first of all pass the order under section 517 and even then this petition would not be maintainable direct in the High Court."
(iii) On the merits the petitioners were entitled to the delivery of bus and the parties could be left to settle the question of title in the Civil Court. The bus was taken into possession by the police from petitioners during the investigation of the case and on the cancellation of the case petitioners were entitled to its restoration. He cited Central Co-operative Bank Ltd., Sargodha v. Ahmad Bakhsh (PLD 1970 SC 943) and Zardullah Khan v. The State and another (PLD 1971 Kar. 906).
9. The learned counsel for the respondent on the other hand argued that the order of the learned Additional Sessions Judge is not open to any exception. It has prima facie been established that the respondent had paid the full sale price of the bus and therefore he was entitled to the possession of the bus in preference to the petitioners. The Court was not bound to restore the bus to the person from whom it was taken into possession by the police even on the cancellation of the case. It was then argued that the respondent having instituted complaint on the same cause the position has not materially changed. Order of the learned Additional Sessions Judge dated 27th July, 1977 will hold the field until the hearing of the complaint is concluded. Stage of passing an order under section 517, Cr. P. C. Will be reached only on the con--clusion of the complaint case.
10. I feel this case can be disposed of on the short ground that the learned Additional Sessions Judge while passing order dated 16th February, 1978 has not adverted to all these facts. Order dated 27th July, 1977 was an order passed regarding the spurdari of the bus during the investigation of the case. Learned Magistrate therefore on the cancellation of the case was fully competent to pass order regarding the case property in terms of section 517, Cr. P. C. Learned Additional Sessions Judge should have disposed of the matter on merits. 1, there--fore, accept this petition, set aside the order dated 16th February, 1978 znd remand the case to the learned Additional Sessions Judge to dispose of the application filed by the respondent a fresh keeping in view various submissions of the parties noticed above and after leaving them. Needless to say that the injunction order of the civil Court dated 16th July, 1978 is still operative and therefore the possession of the bus will remain with the petitioners. Criminal Misc. No. 329-M of 1978 and 370-M of 1978 have thus been rendered infructuous and disposed of accordingly.