1. Azizullah M. Memon, J.--Applicant Muhammad Yousuf lodged FIR at Police Station Landhi, Karachi bearing FIR no. 67/2003, under Section 392/34, P.P.C. to the affect that the motor car Bearing Registration No, Z-1403, with Engine No, 7016961, Chassis No, G-30-082722, Maker Charade, Model 1986 of white colour was snatched by two culprits on gun point at Landhi; applicant reported such facts at the complaint centre of ACLC Computer also; and also filed an application with the Excise and Taxation Officer, Motor Registration Civic Centre, Karachi to keep the registration file of the said vehicle under safe custody.
2. After some time such vehicle was recovered by the Police Officials on the pointation of the applicant/complainant; then the applicant filed an application under Section 561-A Cr.P.C. before the Judicial Magistrate No, V Karachi East for putting him into possession of the said vehicle, who allowed the said application vide order dated 29.5.2003.
3. Respondent No, 2 namely Nadeem Ahmed filed an application under Section 561-A Cr.P.C. before the learned Sessions Judge Karachi East against the said order of the Judicial Magistrate who vide order dated 28.1.2004, allowed the same, and thereby the order of the Judicial Magistrate was set aside with his observations that the motor car in question was admittedly recovered from the possession of the Respondent No, 2 Nadeem Ahmed, and the same may be put into his possession/custody.
4. The applicant filed present application under Section 561-A Cr.P.C. vide order dated 18.2.2004 the operation of the order passed by the learned Sessions Judge was directed to stand suspended.
5. Learned counsel for the applicant argued that he is the real owner of the vehicle in question, as such entitled for its custody, that Respondent No, 2 failed to produce proper documents of purchase of the vehicle in his own name; that having purchased some other motor-car bearing Registration No, E-4712 from M/s. Adamjee Insurance Company in a damaged condition, with an object to use its registration book for the vehicle owned by the present applicant; it is further argued that after the motor-car bearing Registration No, Z-1403 was snatched from the applicant on gun point, its engine number was tampered with (as per the report issued, after the vehicle was got examined from the Assistant Inspector General of Police Criminalistic Division Sindh at Karachi); further the motor-car of the applicant was basically fitted with diesel engine by the company of its make, whereas the damaged car purchased by Respondent was meant to run on petrol engine and, in order to tamper with the engine number of the motorcar of the applicant, the culprits changed its engine-block by purchasing it from open market of Shershah Karachi, and then the same was replaced by removing the original engine-block from the motor-car of the applicant; and then on the basis of purchase receipt of the block, the culprits applied to the Excise & Taxation Department for change of engine number in the registration book of the vehicle owned by the applicant.
6. It was further argued on behalf of the applicant that the design of model 1986 of the motor-car Owned by the applicant is quite different than the same of the model of 1984, and the registration book (which was previously in the name of M/s. Adamjee Insurance Company) was being used to show falsely that the vehicle recovered from the possession of Respondent No, 2 was the same which was purchased by him from M/s. Adamjee Insurance Company, whereas the same is actually owned by the applicant excepting that block/engine thereof was got replaced by the culprits as stated above, and its chasis number tampered with.
7. Learned counsel for the applicant has relied upon report dated 20.1.2003 issued by the Assistant Inspector General of Police. Criminalistic Division Sindh, Karachi, (Examination Branch), which was issued after examination of the vehicle recovered from the possession of the Respondent No, 2, and which shows that the full chassis sheet Bearing No, (ADA000G1100730221) is welded and replaced.
8. However no accurate identification of this body of the vehicle. Learned counsel for the applicant has also argued that the colour of the motor car was white and the examination of the vehicle indicated that the colour was also got tampered with; he also argued that the design of the model of motor vehicle Charade 1986 is different from that of the model of the year 1984 and thereby the applicant has proved that the vehicle recovered from the possession of Respondent No, 2 is the same for which he had lodged FIR, stating therein that the culprits forcibly snatched it form him on gun point. Learned counsel cited Qaiser Shafeeq Vohra vs. The State and another (1991 MLD 2590); relevant observations are recorded as under: "It will, therefore, the seen that Section 561-A, Cr.P.C. enables a Magistrate to provide for interim custody of property pending the conclusion of trial. Admittedly no charge-sheet has been submitted in this case on the F.I.R. lodged by Kashif Shafeeq Vohra, brother of applicant being Crime No, 339 of 1989. Ferozabad P.S; under Section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, although the case property was recovered from, the possession of Respondent No, 2 with same Chassis and Engine numbers. The learned A.C.M., had, therefore, passed the orders dated 8.9.1990 and 1.11.1990 under Section 523, Cr.P.C. The first order was passed at the back of the applicant although the report submitted by Amanat Javaid Mirza, Inspector, C.I.A., Karachi who is the Investigating Officer made a clear mention that this car is the stolen property of Crime No, 339 of 1989, Ferozabad P.S. It was, however, an interim order and did not attain the finality as the applicant who is the owner of this car was condemned unheard. Both the parties were dissatisfied with the order of learned A.C.M. dated 1.11.1990. The applicant challenged it in Criminal Revision No, 60 of 1990 which was decided in his favour by learned III- Additional Sessions Judge (East) Karachi on 4.3.1991. The Respondent No, 2 challenged this order in Criminal Revision No, 12 of 1991, which was decided in his favour by learned Sessions Judge (East)
9. Karachi on 29.4.1991. As observed above both these orders were passed at the back of respective contestants and are liable to be set aside on this score alone. The essential question to be decided now is whether in the circumstances of the present case it is a case for remand or the point in issue be decided by this Court once for all. The first course suggesting that I might send the case to the Court of Session for a proper finding after hearing the parties is likely to perpetuate a wrong already done to the applicant who is deprived of the custody of his own car for the last one year.
10. Delay in disposal of such cases is an ugly feature of our judicial system. Once a seasoned client remarked: If there is ample money in your pocket and sufficient time at your disposalyou can delay the disposal of the case till entirety." On being asked how it was possible the gentlemen divulged the secret:-- -----------always prefer an appeal against every order passed by a Court. If the order is not appealable, then go in for revision (Refer Shamim, M. "Overhauling the judicial system". The Commercial Law Gazette, November 10, 1979, reproduced in Crime and Criminal Justice System in India by Dr. Mir Mehrajuddin.) I, therefore, propose to decide both these applications on merits. Section 523, Cr.P.C. reproduced above provides the procedure by police upon seizure of property taken under Section 51, Cr.P.C. or stolen (seized under Section 550, Cr.P.C.). On a plain reading of this section it is clear that proper procedure was not adopted by the police in this case as no intimation was sent by the police to the concerned Magistrate. Admittedly the recovery was made on 21.8.1990 and the report was submitted by the Investigating Officer on 8.9.1990 after it was called by the concerned Magistrate on the application of Respondent No,
2. The applicant who was the owner of this car was kept in dark although the seizure memo, dated 21.8.1990 makes it clear that this car was seized in Crime No, 339 of 1989, Ferozabad P.S. An attempt was, therefore made from the very outset to oblige Respondent No, 2, who claimed to be a bona fide purchaser of this car, although in fact he was a purchaser from a thief and should have been prosecuted alongwith the persons from whom he claimed to have purchased this car. Admittedly the car belonged to applicant. There is also no dispute that it was stolen on 30.5.1989 'and such F.I.R. being Crime No, 339 of 1989, was registered at Ferozabad P.S. The applicant took all possible precautions so that this car may not be re-registered, but all in vain. This car was re- registered and purchased by Respondent No, 2 from Lahore. On seizure the Chassis No, and Engine No, were found the same but still the real owner was deprived of its custody as against the Respondent No, 2 who is a purchaser from a thief. It may be added that the registration certificate is not in the name of Respondent No, 2 who is retaining the car on the strength of open transfer letter, which in my view is not a valid document of title. I am supported in this behalf by the case of Ghulam Shabbir Lashari v. The State reported in 1991 P.Cr.L.J. 287 wherein it was observed that T.O. form is not by itself a document of title. The case of AKAR.A. Chettyar v. Ma Saw Hla, reported in AIR 1937 Rangoon 450, is the nearest parallel to the present case, where it was remarked: "Where the known facts plainly show that the property has been stolen, it would be intolerable' to allow the person in whose possession the property is found to retain it as against the rightful owner and force the latter to a civil suit' for its recovery if the accused absconds." In the case of Inayatullah v. Muhammad Tufail and 2 others `reported in PLD 1976 Lah. 641, it was held in clear terms that stolen property cannot be given on Superdari to a purchaser from their pending decision of the case. I am conscious of the fact that a different view has been expressed in number of cases including the one relied upon by learned Sessions Judge to the effect that ordinarily the Court is required to give temporary custody of the property to a person who was last in possession unless otherwise there are special features which may warrant a different course. The present case is certainly of an exceptional character where the concerned police has avoided to prosecute the persons who could be thieves or purchaser of the property from the thieves. A cruel wrong was dupe to; the applicant which was perpetuated by different Courts at different stages. In this way a person who himself was a victim and who had a preferential right was denied the custody of his own car by a person who claimed to have purchased it from a thief. From all the above cases, to which I have referred, and many others, I am of the view that both the orders, dated 4.3.1991 and 29.4.1991 passed by III-Additional Sessions Judge (East) Karachi and Sessions Judge (East) Karachi respectively, are liable to set aside and they are accordingly set aside. Both the applications filed under Section 561-A, Cr.P.C. being Criminal Miscellaneous Application No, 145 of 1991 and Criminal Miscellaneous Application No, 241 of 1991, are allowed. The custody of the car in question shall be delivered to applicant on Superdari on furnishing a persons bond in the sum of Rs, 8,00,000/- (Rs, eight lacs) to the effect that he would not dispose of the said car till further orders passed by competent Court and would produce it before the competent Court, as and when required. The A.C.M., C.I.A., Karachi will take necessary steps for the compliance of the order of this Court without any further loss of time." At this stage of the case, it appears that the order passed by the learned Judicial Magistrate thereby putting the applicant into custody of the disputed motor car was passed on sound principle of law and therefore did not call for any interference; accordingly this application is hereby allowed, order passed by the learned Sessions Judge Karachi East in Cr. Revision Application No, 103/2004 dated 28.1.2004 is hereby set-aside and that passed by learned Judicial Magistrate No, V Karachi East dated 18.11.2003 is restored.
11. It may be stated here that the Respondent No, 2 is claiming the ownership of the disputed vehicle on the basis of registration certificate of motor car, said to have been purchased form M/s. Adamjee Insurance Company and the concerned Excise and Taxation Officer, Motor Registration Wing had allowed transfer thereof in the name of the Respondent No, 2, it is further being alleged that the Respondent No, 2 showed purchase of an engine block from the open market, and replaced the original engine with the one purchased by him from open market; thus vide order dated 1st September, 2004, the Excise and Taxation Officer, Motor Registration Wing, Karachi was summoned to appear and to state as to whether or not relevant law/rules were complied with while above stated change/amendment in the registration book of the motor-car were allowed by his office, more so for the reason that further allegation has also come on the record that chassis number of the motor-car of the applicant has also been tampered with the reply filed by him in pursuance of the said order was not found satisfactory and therefore Secretary Excise & Taxation Department. Government of Sindh was summoned to explain his own position, who filed his comments on 17.9.2004 stating therein that as per motor dealer's receipt on the record, the Vehicle Registration No, Z-1403 is of Model 1986 whereas the Vehicle Registration No, E-4712 is of 1984 as mentioned in Bill of Entry. However, except alterations/conversions of Engine numbers as mentioned in para 8, no alternation/conversion of chasis number was ever applied for of allowed by the Motor Registration Authority. Neither any law/rule allows the alterations/conversions of any chassis numbers. So the chassis numbers of both above vehicles are respectively intact as per their Bills of Entries & Registration with Motor Registration Authority Karachi.
12. Investigation does not appear to have been properly carried out regarding the plea of the applicant that the mechanical design as well as body set-up and out-look of the vehicle of the make of Charade Car, one for the year 1984 and the other for the year 1980 are not the same/identical to each other; so also, the investigation officer has not properly dealt with the allegation as to the responsibility regarding lapse on the part of concerned Excise & Taxation Officer who granted the permission to replace the engine-block of the disputed vehicle, without himself having the inspection of the vehicle to confirm its chassis number, as to whether the original was tempered with or not.
13. Accordingly a case needs to be registered for investigation and further necessary action against all those who unauthorizedly tampered with the engine-block/chassis of the vehicle; hence the Chairman Enquiries and Anti-Corruption, Government of Sindh, Karachi is hereby directed to depute a Senior Officer of his Department to hold an inquiry into the disputed vehicle and then, on the basis of such a report, to register FIR against all those responsible for such temperance pertaining to engine-block/chassis of the motor-car, action according to law be taken against all such officials/ culprits, who misused their official position for all such purposes; such, a compliance report shall be submitted by the Chairman, Enquiries and Anti-Corruption before this Court within a period of four months from the date of receipt of this order.