' SHAHID HAMEED DAR, J.---Mst. Humera Arshad petitioner has called in question the validity of order dated 17-2-2010 passed by learned Judicial Magistrate section 30, Lahore and order dated 4- 9-2010 pronounced by learned Additional Sessions Judge, Lahore whereby request of the petitioner seeking superdari of an auto car (Suzuki Baleno) bearing registration No, LWB-572 has been answered in negative and the application of the petitioner under section 516-A, Cr.P.C. Has been dismissed.
2. The petitioner got lodged F.I.R. No, 64 of 2008 dated 22-1-2008, under sections 406, 506, P.P.C. At Police Station Nishtar Colony, Lahore with the allegations in brief, that she had purchased an un- registered vehicle Surf-2005 for Rs,19,00,000 from her relatives Shahzad Khan and his father Haji Shahbaz Khan who received two automobiles, one bearing registration N0.LRR-514, registered in the name of the mother of the petitioner and the other bearing No, LWB-572 (the vehicle in question) along with net cash Rs,2,50,000 and a cheque of Rs,6,00,000 of Soneri Bank, Allama Iqbal Town Branch, -Lahore from the petitioner as the price of the mentioned vehicle but they did . Not deliver the possession of the sold out vehicle to the petitioner; the accused put off the petitioner for a long period of time despite having received the consideration amount and refused to return the afore- said vehicles and cash received by them from the petitioner.
3. Muhammad Asghar, S.-I./Investigating 'Officer arrested Shahbaz Khan accused on 22-1-2008 and recovered vehicle No,LRR-514 at his instance on 29-1-2008. The police apprehended Shahzad Khan accused and interrogated him at the police station on 18-3-2008. During investigation, the Investigating Officer received a telephone call from the complainant-petitioner, whereupon he conducted raid and took into custody the vehicle in question i.e Suzuki Baleno LWB-572 on 6-9- 2008 from the possession of one Tayyab Iftikhar who contended before, the police that he had borrowed the said vehicle from his cousin Shahzad Khan son of Shahbaz Khan, 3/4 days before, for going to Faisalabad. The I.O. Jotted down case diary No,23 dated 6-9-2008 in this respect and after usual investigation submitted a report under section 173, Cr.P.C. Before the court of competent jurisdiction for trial of the accused.
4. The petitioner moved an application for seeking superdari of the aforesaid vehicle (registration No, LWB-572) which was accepted by the learned Judicial Magistrate concerned on 9-9-2008 and the custody of the vehicle was handedover to the petitioner subject to furnishing surety bonds, equivalent to the value of the vehicle with the added conditions that she would produce the vehicle in question before the court as and when required to do so and that she would not alienate it without the permission' of the trial Court.
5. Bashir Ahmad, respondent No,2 . Also sought the superdari through an independent application, claiming to be its owner which was disallowed on 17-2-2010 by the learned Judicial Magistrate section 30, Lahore but at the same moment the order dated 9-9-2008 passed earlier in favour of the petitioner was also recalled and the S.H.O. Concerned was directed to take control of the disputed car and keep it parked at the premises of police station concerned.
6. Being dis-satisfied with the aforesaid situation, the petitioner as well as respondent No, 2 tiled separate revision petitions against the order of the learned Magistrate which were decided through order dated 4-9-2010 by the learned Additional Sessions Judge, Lahore in terms that the revision petition moved by the petitioner was dismissed and the one preferred by respondent No, 2 was accepted. Hence the instant petition.
7. Learned counsel for the petitioner submits that the vehicle in question was owned by the petitioner and being its owner she had sold it out to his relatives Shahzad Khan and his father Haji Shahbaz Khan; the petitioner had not only handed over the vehicle in question to the above-said accused but also she had delivered another car (LRR-514) of her mother, cash Rs,2,50,000 and a cheque of Rs,6;00,000 to the accused as a part of the deal, to purchase a vehicle Surf-2005 from them the cheque received by the accused from the petitioner was also got encashed by them; the vehicle in question was lent for a few days by Shehzad Khan accused to Tayyab Iftikhar, at whose instance, it was taken into custody by the police and this fact has been admitted by him in his plea before the police; the petitioner being the bona tide owner was the last possessor of the vehicle so she was entitled under the law to fetch its possession on superdari; the learned Magistrate in the first instance dealt with the matter in a lawful manner but subsequently recalled its earlier order in an illegal and unlawful way which is void ab-ibitio; the impugned order passed by the learned Additional Sessions Judge is equally unlawful as it has been passed in a mechanical manner without application of judicial mind; both the orders have been passed arbitrarily and capriciously which being bad in the eyes of law, are not sustainable.
8. Contrary to it, learned counsel for respondent No,2 submits that the petitioner is no more the owner of the vehicle in question and instead it is his client who is the bona fide purchaser and owner of the same; the petitioner had sold the disputed vehicle to one Mst. Pinki Fakhra on 28-2- 2007 who onward sold it to Bashir Ahmad, respondent No,2 on 20-2-2008; the above said vehicle was transferred in the name of respondent No, 2 on the same day and since then he enjoyed its exclusive ownership; though the name of the petitioner had been restored as the owner of the said vehicle in the registration book by the ETO, Motor Registration Authority, Lahore vide order dated 16- 10-2008 at the expense of the ownership of respondent No,2 yet it was struck off by the Director, Excise and Taxation, vide order dated 13-11-2008 and the case was remanded for rehearing; the ETO Motor Registration authority has suspended the status of the vehicle vide order dated 8-6- 2009, till the decision of the civil suits filed by the parties; the impugned order passed by the learned Additional Sessions Judge does not call for interference as the vehicle in question had been taken into possession by the police from respondent No,2 the petitioner had no concern with the title and possession of the above-said car so the instant petition being destitute of merits may be dismissed.
9. Learned Deputy Prosecutor-General, on the other hand, submits that the car being claimed by both the sides had not been taken into possession by the police from respondent No,2 and it was one Tayyab Iftikhar, the last possessor of the vehicle who, contended before the police that he had borrowed it from his relative Shahzad Khan for a few days to go to Faisalabad; Shahzad Khan and his father Haji Shahbaz Khan had received the above-said vehicle from the petitioner so she was entitled to the interim custody thereof, till the decision of the trial of the accused; the observations made by the learned Additional Sessions Judge, Lahore in impugned order dated 4-9-2010 qua the possession of respondent No,2 are baseless and against the record; lastly submits that the impugned orders may be set-aside being unwarranted by law.
10. I have heard the learned counsel for the parties and perused the available record.
11. Notwithstanding the divergent orders passed by the ETO, Motor Registration Authority, Lahore, the moot point involved in this case is whether the vehicle in question had been taken into possession by the police from Bashir Ahmad, respondent No, 2 or the same had been recovered from Shahzad Khan-accused against whom, the petitioner had got lodged the F.I.R. The investigation record of the above-said F.I.R. Case has been gone into which reveals that the Suzuki Baleno car bearing No,LWB-572 was taken into custody by Muhammad Asghar, S.-I./I.O. On 6-9-2008 after he conducted a successful raid on receipt of a telephonic tip-off by Mst. Humera Arshad, the petitioner. The I.O. Has prepared the memo of recovery dated 6-9-2008 which shows that the disputed vehicle had been taken into possession by him from the custody of Tayyab Iftikhar who on interrogation, adopted the version that he had borrowed said car from his cousin Shahzad Khan for 3/4 days so as to go to Faisalabad in,connection with some urgent piece of work. I have gone through the entire investigation record but I do not find any case diary disclosing the name of Bashir Ahmad, respondent No,2 as a possessor of the vehicle on 6-9-2008. Tayyab Iftikhar is not an accused of the above said case so his contention before the police is not worth rejection. The allegation alleged by the petitioner in the F.I.R. Got lodged by her is precise so the above-said contention of Tayyab Iftikhar gathers importance and it can be easily inferred that the claim of Mst.
Humera Arshad petitioner being the last possessor of the vehicle is hardly, questionable. The accused Shahzad Khan and Haji Shahbaz Khan had allegedly received the stated vehicle along with other items mentioned in the F.I.R. From the petitioner as a deal between the petitioner and the accused had been struck for the sale/purchase of vehicle Surf-2005. Whether the title of the petitioner or that of respondent No,2 had been dealt with lawfully or not by the Motor Registration Authority is not a relevant factor to be taken into consideration at this juncture as the matter regarding determination of title of the vehicle in question is sub-judice before a competent civil court where both the parties shall adduce A evidence to establish their respective claims. It may be observed that in order for the interim custody of the case property regarding which an offence might appear to have been committed could be made under section 516-A, Cr.P.C. During an inquiry or trial. This is stated only to emphasis the position that an order at this stage would be only interim in nature which would not be purported to give any finding in regard title of rival claimant or ownership of the vehicle.
12. The impugned orders are found to have been passed arbitrarily and injudiciously, especially a couple of observations made by the learned Additional Sessions Judge, Lahore qua the last possession of the vehicle in question are absolutely out of place and alien to the investigation record.
13. It has been contended on behalf of Bashir Ahmad, respondent No,2 that Mst. Humera Arshad is using the car in question carelessly and roughly which is bound to result in its rapid depreciation and in case his claim being the owner is finally accepted; he will bear irreparable loss in this account.
14. The fears of the learned counsel for respondent No,2 is hardly considerable as an adequate security in the possible event of defeat of her claim to the ownership of the vehicle in question, has already been deposited by the petitioner in line with the order dated 9-9-2010 passed C by the learned trial court. The petitioner shall be under obligation to produce the car in question before the trial court as and when required to do so and in case she shows hesitation in this regard, the learned trial court shall be at liberty to take any appropriate action against her in accordance with law.
15. With the aforesaid observation, the instant petition is allowed, both the orders impugned by the petitioner through this writ petition are set aside.