This petition has been moved by Mst. Farhet Jabeen petitioner under Article 9 of the Provisional Constitution Order, 1981, and is directed against the judgment dated 20-12-1980 passed by the Additional Sessions Judge, Lahore, pertaining to the dispute of Sapurdari of Car No. LEY-4440. The background is that in the end of 1979, Manzoor Hussain, husband of the present petitioner, sent under the Gift Scheme the disputed car to her from Dubai. The said car arrived Lahore and Muhammad Nawaz, husband of Mst. Nusrat Nawaz, respondent No. 3, approached the petitioner for the sale of the car. The car was agreed to be sold for Rs. 1,5000, and Rs. 5,000, were paid as earnest money to the petitioner and the balance was to be paid in four equal installments within one year.
The agreement to sell was stated to be an oral agreement and it was not reduced into writing.
Although the receipt of Rs. 5,000 as earnest money is admitted by the petitioner, there is no written receipt to that effect on the record. Any way, according to the mutual understanding between the parties, it was further agreed that the ownership in the said car would remain in the name of the petitioner until the full price was paid to her. It is stated that on these terms the possession of the car in question was delivered to Muhammad Nawaz, husband of respondent No. 3. The said car was got registered on 27.1-1980 in the name of the petitioner by the husband of respondent No. 3.
But it is contended that no instalments of the balance amount were ever paid to the petitioner. In those times a car registered under the Gift Scheme was non-transferable for a period of one year.
But subsequently these restriction were withdrawn by the Government. Consequently, on 25-9- 1980 it is contended that the registration of the car was transferred by the husband of respondent No. 3 from the name of the petitioner to that of respondent No. 3 by allegedly forging the signatures of the petitioner on the application for transfer put up before the Registering Authority. When the petitioner came to know about the same, she moved a written complaint before the Deputy Inspector General of Police, Lahore Range, Lahore on the basis of which F.
1. R. Was registered through the brother of the petitioner, namely, Abdus Sami on 3-11-1980 by the Inspector of Police, City Circle, Lahore under section 420/468/471, P. P. C. As against respondent No. 3 and her husband Muhammad Nawaz. As a result of the registration of the case the car in question was recovered by the police from the house of respondent No. 3 on 3-11-1980 and since it was the subject-matter of the case, it was taken into possession by the police. The challan as against respondent No. 3 and her husband Muhammad Nawaz was sent up and at present the matter is pending in the Court of Mr. Naeern Siddiqui, Illaqa Magistrate, Lahore.
2. Subsequently both the petitioner and respondent No. 3 moved applications for the Sapurdari of the said car before Mr. Muhammad Salem Magistrate First Class, Lahore, who heard the contesting parties and vide his order dated 15-11-1980 held as follows: "I have gone through the record produced by the Police. Arguments of both the parties heard.
There is a total confusion in this case. None of the parties claiming the case property have been able to satisfy me by showing their bona fide ownership. Hence both the parties are directed to get their title established from the civil Court of competent jurisdiction and order that the disputed car No. LEY 4440 should be kept in private garrage at the expenses of both the parties."
Against the aforesaid order both the petitioner and respondent No. 3 filed two criminal revisions which were heard and disposed of by the Additional Sessions Judge, Lahore, vide his judgment dated 20-12-1980. The Additional Sessions Judge, relying on certain authorities, arrived at the conclusion that Mst. Nusrat Nawaz respondent No. 3 was shown as the registered owner of the disputed car and that the car was also recovered from her possession. Therefore, she was entitled to the custody of the car. He set aside the order of the Magistrate, accepted the revision petition of Mst. Nusrat Nawaz respondent No. 3 and rejected that of the petitioner. He further directed that Mst.
Nusrat Nawaz respondent No. 3 should be given the Sapurdari of the car on furnishing a security bond in the sum of Rs. 1,10,000, to the satisfaction of the trial Court that she would produce the car as and when required by the trial Court. It is against this order that the petitioner has preferred the present writ petition on the ground that the impugned order was against the weight of evidence and that, therefore, it partakes the character of an order not based on any evidence at all. The Police record, the record from the Court of the Magistrate as well as from the Additional Sessions Judge, Lahore, were summoned. Likewise, the record of the case titled State v. Muhammad Nawaz etc. Under section 420/468/471, P. P. C. Pending at present in the Court of Mr. Naeem Siddiqui, Illaqa Magistrate Lahore, was summoned. The operation of the impugned judgment was suspended on 22-12-1980 and it was directed that if the custody of the car had already been given to respondent No. 3, it should be taken over by the Investigating Officer and the vehicle be kept in the Police custody till further orders. The petition was admitted for hearing on 6-5-1981, and notice was accepted by counsel for respondent No. 3, who also placed on record his written statement.
3. A preliminary objection had been raised on behalf of respondent No. 3 by her learned counsel to the effect that the writ petition was not competent in the circumstances because in the instant case the impugned order had been passed by the Additional Sessions Judge while exercising his powers of revision under section 439-A, Cr. P. C. It was submitted that since the impugned judgment was neither without jurisdiction nor having, been passed without lawful authority, the writ petition against the same was not competent even if the judgment suffered from any infirmity. It was submitted that under section 523, Cr. P. C. The seizure by any Police Officer of the property alleged or suspected to have been stolen or found under circumstances which create suspicion of the commission of any offence, shall be reported to a Magistrate, who shall order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof. Under section 516-A, Cr. P. C. When any property regarding which any offence appears to have been committed is produced before any Criminal Court during any trial, the Court may make such orders as it thinks fit for the proper custody of such property pending the conclusion of the trial. On the basis of these provisions of the Cr. P. C. It was argued by learned counsel for respondent No. 3 that in the instant case the order of the Magistrate was legally set aside by the Additional Sessions Judge, who had given the Sapurdari of the disputed property to respondent No. 3 on her furnishing a security bond of Rs. 1,10,000, to the satisfaction of the trial Court that she would produce the said car as and when required by the trial Court. Since the Additional Sessions Judge had the discretion to pass the impugned order and he had !He jurisdiction to pass the same, it could not be challenged in the extraordinary writ jurisdiction.
Reliance in this connection was placed on Muhammad Hussain v. Sikandar (PLD 1974 SC 139), in which it was held that a Court or Tribunal having jurisdiction to decide a matter is competent to decide it rightly or wrongly and the mere fact that the decision was incorrect does not render the decision as without lawful authority. Consequently, the High Court in writ jurisdiction was not competent to interfere with such order on purely equitable consideration. Reliance was also placed on Noor Jahan v. Vth Additional Sessions Judge (PLD 1980 Kar. 305). In reply to this preliminary objection learned counsel for the petitioner relied on Abdul Rashid v. Sessions Judge, Jhang (PLD 1979 Lah. 613), in which it was laid down that the High Court in writ jurisdiction can interfere with discretionary orders and it would interfere even with discretionary orders in case of finding being based on insufficient evidence, misreading of evidence, non-consideration of material evidence, erroneous assumption of facts, patent errors of law, consideration of inadmissible evidence, excess or abuse of jurisdiction, arbitrary exercise of power and ,unreasonable view of evidence. It was further held that under section 516-A, Cr. P. C. The trial Court ordinarily is required to give temporary custody of crime property to the person last in possession unless special circumstances warrant a different course.
4. On merits it was argued by learned counsel for respondent No. 3 that the car in question was imported from Japan under the Gift Scheme by the husband of the petitioner for her and it was received at Karachi on 21-12-1979 in the name of the petitioner. The said car was got released by Farhatullah Baig, husband of one of the sisters of the petitioner on 23-12-1979. Thereafter it was handed over to one Maqsood Ahmad, brother of the husband of respondent No. 3 at Karachi and he brought it by road to Lahore reaching here on 1-1-1980. According to learned counsel, the possession of the said car was never delivered nor it was handed over to the petitioner.
Respondent No. 3 is alleged to have paid Rs. 50,000, to this Farbatullah Baig before he went to Karachi for the release of the said car from the Customs Department. The amount of Rs. 50,000, was paid by respondent No. 3 to Farhatullah Baig for the payment of Customs duty, sales tax etc., and the total price mutually agreed between the parties for the sale of the said car was at Rs.
97,000. It is needless to point out here that there are no written documents/receipts in the instant case and the transaction whatever it was, is being claimed by both the sides as oral. It is then submitted by learned counsel for respondent No.3 that on 14-1-1980 respondent No. 3 paid up the balance amount of Rs. 47,000, to Farhatullah Baig in the presence of the petitioner and Farhatullah Baig had handed over all the original documents which were in possession of the petitioner to respondent No. 3 along with two transfer letters, namely (f) application of the petitioner to the Registering Authority for the registration of the said car in her own name and (ii) for the transfer of the registration of the said car from her name to the name of respondent No. 3. According to learned counsel both these documents are on the file of the Registration Authority and were at present in possession of the Police. It is further submitted by learned counsel that the petitioner had not signed these documents in the presence of respondent No. 3. Farhatullah Baig was Deputy General Manager of Alfa Insurance Company and the said car had been imported into Pakistan through him. It was then submitted that the said car was got registered in the name of the petitioner on 27-1-1980 and thereafter its registration was transferred from the name of the petitioner on 25-9-1980 to the name of respondent No. 3 under notification dated 14-7-1980 whereby the condition of non-transferability for one year was withdrawn by the Government. It was next submitted that on 18-10-1980 Farhatullah Baig, Abdus Sami and Abdul Hayee (the latter two are brothers of the petitioner) committed an attempted murder upon Mst. Musarat Jabeen wife of Farhatuilah Baig and sister of the petitioner. Consequently, a case was registered on 19-10-1980 against them under section 307/324/109, P. P. C. On the statement of Mst. Rahat Khan, another sister of the petitioner at Police Station, Old Anarkah, Lahore. They moved the Court of the Additional Sessions Judge, Lahore, for bail before arrest which was granted only to Farhatullah Baig on 16-11-80 but was refused to Abdus Sami and Abdul Hayee, who were arrested but were subsequently admitted to bail by the Magistrate. According to the narration of learned counsel for respondent No. 3 on 3-11-1980 a written complaint was made by the petitioner and through this Abdus Sami to the D. I.-G. Police, Lahore, on the basis of which a case under section 420/468/471, P.
P. C. Was registered against respondent No. 3 and her husband. It was argued by learned counsel that in the F. I. R. The sale of the car in question by the petitioner to the husband of respondent No. 3 is admitted. She has also admitted the receipt of Rs. 5,000, as earnest money. Furthermore, the delivery of possession of the said car is likewise admitted. Then it is evident from the registration book and it is also admitted by the petitioner that the car was first registered in her own name and then subsequently it was transferred to the name of respondent No. 3. It is also evident that the car in question remained with respondent No. 3 for more than eleven months and that the recovery of the said car was made from the house of respondent No. 3 by the Police. Thus, on the basis of these facts the contention of learned counsel for respondent No. 3 is that if the car was the subject- matter of certain criminal proceedings, it was last recovered from the possession of respondent No. 3 and that the Additional Sessions Judge was justified in setting aside the order of the Magistrate and giving the said car on Sapurdari to respondent No. 3. In support of his arguments learned counsel relied on Muhammad Jamal v. State (1972 P Cr. L J 363), in which it was laid down that custody of property to be handed over to the person who was last in possession, Ameen v.
Mustaqeem (1973 P Cr. L J 626), in which temporary custody was allowed to be retained by the accused pending hearing of the complaint, and Faro Jamil v. State (PLD 1976 Lah. 58), in which it was held that person from whom carrecovered was found entitled to its possession and documents and record also showing him as owner was held to be entitled to Sapurdari of the car.
5. I have heard learned counsel for the parties and carefully perused the record. So far as the preliminary objection is concerned, relying on Abdul Rashid v. Sessions judge, Jhang, in my view this Court has jurisdiction to interfere when an order had been passed, which appears to be note based on any evidence or non-consideration of material evidence. In the instant case, it is admitted that the car in question had arrived in the name of the petitioner under the Gift Scheme.
It is further admitted at least by the petitioner that there was an agreement to sell the said car where-under she received Rs. 5000, as earnest money and delivered the possession of the car to the husband of respondent No. 3 on the understanding that the balance amount would be paid in a certain number of instalments. This agreement to sell was not reduced into writing. On the other side, it is being claimed by respondent No. 3 that the price of the car was fixed at Rs. 97,000, out of which she paid Rs. 50,000, to Farbatullah Baig for getting the car released and thereafter paid the balance amount of Rs. 47,000, to him on 14-1-1980. This transaction has also not been reduced into writing and there is no receipt on the record to the effect that these amounts have been received either by the petitioner or by Farhatullah Baig, her brother-in-law. I may point out at this stage that there is affidavit of Farhatullah Baig on record to the effect that he has not received any money from respondent No. 3 or her husband. The record of the criminal proceedings as against respondent No. 3 and her husband which had been summoned from the Court of the Illaqa Magistrate as well as the Police record indicate that on the two transfer letters sent to the Registering Authority the signatures of the petitioner have been prima facie forged. It may be pointed out at this stage that specimen signatures of the petitioner were sent to the Handwriting Expert by the Investigating Agency in order to find out if on the transfer applications submitted to the Registering Authority the petitioner had tendered her signatures. The report dated 18-1-1981 of the Handwriting Expert is at page 47 of the record and it is to the effect that her specimen signatures did not bear identical characteristics when compared with the alleged signatures on the transfer applications. I note that her specimen signatures are not comparable with the signatures on the transfer applications even to my bare eyes as a non-expert. Thus, prima facie on the two transfer applications it is not the signatures of the petitioner. The inference would be that the signatures of the petitioner had been forged on the two transfer applications and apparently she had not signed these applications herself. Who has committed this forgery is a question which shall have to be determined by the trial Court. Specimen signatures of Muhammad Nawaz as well as respondent No. 3 were also sent to the Handwriting Expert in order to find out as to whether any of them might have forged the signatures of the petitioner on the two transfer applications. The report of the Handwriting Expert dated 25-2-1981 is placed at page 131 of the record of the Magistrate in which he has not given any specific finding so far. But had requested that previously written English writing of both of them should be sent along with the present documents for a detailed analysis. Consequently it is yet to be ascertained as to who has committed forgery in respect of the transfer of the disputed car which is at present standing in the name of respondent No. 3 so far as the record of the Registering Authority .Is concerned. Thus, what emerges from the record is that a case is registered against respondent No. 3 and her husband under section 420/468/471, P. P. C. It is alleged that they had forged the signatures of the petitioner in order to get the car registered first in her name and then' subsequently in the name of respondent No. 3.
Learned counsel indicate that on the registration letters signatures of the petitioner are prima fact forged. It is yet to be determined as to whether or not respondent No. 31 and her husband had got the signatures forged and this is a matter which can only be determined by the trial Court . In such circumstances, the Additional Sessions Judge should have not given the Spurdari of the disputed car to respondent No. 3 only for the reason that it had been last recovered from her possession. The car in question is subject-matter of Criminal Proceedings. It, no doubt, may stand registered in the registration book in the name of respondent No. 3, but the claim of the petitioner is that by virtue of which respondent No. 3 is claiming ownership or possession of the disputed car, is stated to be a forgery, and there is evidence on the record to indicate that prima facie the car is at present standing in the name of respondent No. 3 under the signatures of the petitioner which are forged.
Learned Assistant Advocate-General also appeared in this case and submitted that the impugned judgment was liable to be set aside. It may further be noted in this case that none of the parties has moved the Civil Court in order to get their title established. In the circumstances, therefore, there was no justification on the part of the Additional Sessions Judge to grant the Sapurdari of the disputed car to respondent No. 3. In Ghulam Jilani v. Muhammad Yousaf 1972SCMR159, it was held that when the Court directed that the crime property (a vehicle) be kept in the custody of the police until the question of title was decided finally by the Court, the discretion, in the circumstances of the case, was properly exercised. Relying on this authority and in the light of the above discussion, I am of the considered opinion that the impugned judgment had been passed without any lawful authority and, therefore, it is liable to be set aside. It is hereby set aside and, in the circumstances, the order passed by the Magistrate dated 15-11-1980 is restored.
The result is that pending the criminal proceedings or until both the parties get their title established from the civil Court of competent jurisdiction, the disputed Car No. LEY-4440 should be kept in private garrage under the custody of the police and both the petitioner as well as respondent No. 3 shall equally share the expenses in this respect: The writ petition is accepted to this extent. There shall be no order as to costs.
The record of the case titled State v. Muhammad Nawaz etc. F. I. R. No. 634-80, Police Station Mozang, under section 420/468/471, P. P. C. Should immediately be returned to the Illaqa Magistrate, who is hereby directed to hold a day to day trial and conclude the same as expeditiously as possible. The parties to appear before the Illaqa Magistrate, Lahore on the 1st of July, 1981.