' RIAZAT ALI SAHAR,. J.---By this single order we intend to dispose of above Constitutional Petition and Criminal Miscellaneous Application No,158 of 2011 filed by the petitioner/applicant.
2. The relevant facts of the case are that the Petitioner after seeking clearance from CPLC and publication through daily "JANG", Karachi dated 17-10-2010, purchased a car bearing Registration No,AQT-570, Model-2008 against sale consideration of Rs,600,000 (Rupees Six-hundred thousand only) in cash from one Muhammad Nadeem son of Ghulam Nazuk; who after receiving cash amount delivered the possession of the said car along with original registration documents and open Transfer Letter duly signed by the Seller. On 27-12-2010, the petitioner/applicant was called by the Boat Basin Police at Police Station, where his said car was seized under the memo of seizure in Crime No,687 of 2010 for offence punishable under sections 420, 468 and 471, P.P.C. The petitioner/applicant approached the Court of learned VI-Judicial Magistrate, Karachi (South) by filing application under section 516-A, Cr.P.C., but the same was declined, thereafter he being aggrieved filed a Criminal Revision Application before the learned III-Additional Sessions Judge, Karachi (South), which was also declined and possession of the car was handed over to the respondent No,4 Jawed-ul-Hassan on Superdari. The relevant facts of the case of respondent No, 4 are that he is the owner of aforesaid vehicle by virtue of original Registration Book in the name of Jawed-ul-Hassan. On 14-10-2011, he sold out the said vehicle to one Muhammad Nadeem against sale consideration of Rs,710,000 (Rupees Seven Hundred Ten Thousand only) and received a Pay Order of entire amount bearing No,683720, which was deposited by him in Meezan Bank Ltd, but the same was returned as "fake pay order". On 18-10-2010, when respondent No,4 came to know that he has been cheated by said Muhammad Nadeem, he lodged an F.I.R. With Police Station Boat Basin bearing Crime No,687 of 2010, for offence punishable under sections 420, 468 and 471, P.P.C. After recovery of the car, the Respondent No,4 approached VI-Judicial Magistrate, Karachi (South) for restoration of the vehicle, but his application was declined, then he approached the learned Sessions Judge, who transferred his application to III-Additional Sessions Judge, Karachi (South), whereby the vehicle has been restored on Superdari.
3. It is, inter alia, contended by the learned counsel for the petitioner/applicant that he is the bona fide purchaser of the car in question and police recovered the vehicle from his possession, therefore, lie comes within the ambit of last possessor of the vehicle. He further contends that all the original documents of the vehicle were handed over to the Nazir of the trial Court in compliance of the order dated 14-3-2011 passed by the III-Additional Sessions Judge, Karachr(South). Lastly he prayed for restoration of the vehicle in question along with its original documents.
4. Conversely, learned counsel for respondent No,4 contended that the respondent No,4 is the real owner of the vehicle, but unfortunately he has been cheated by one Muhammad Nadeem, for which he had lodged F.I.R. And being a legal owner he was the last possessor, who was in possession of,the said vehicle.
5. The learned Assistant Prosecutor-General also supported the version of learned counsel for respondent No, 4 and contended that the possession of the vehicle was rightly handed over to the respondent No,4.
6. We have considered the respective submissions of learned counsel for the petitioner/applicant, learned counsel for respondent No,4, learned Assistant Prosecutor-General for the State and examined the record.
7. We are of the considered view that in fact Boat Basin Police secured the vehicle under the memo of seizing in Crime No,687 of 2010 registered at Police Station Boat Basin for offence punishable under sections 420, 468 and 471, P.P.C. From the possession of the petitioner/applicant. The registration documents are in the name of respondent No,4. The Pay Order amounting to Rs,710,000 received from Muhammad Nadeem was declared as fake by Meezan Bank Ltd, Karachi.
Petitioner/applicant has failed to establish his status being a bona fide purchaser at this stage, even he did not produce the copy of CNIC of Muhammad Nadeem, who is said to have been Seller of the vehicle in question in transaction between Muhammad Nadeem and the petitioner and purchaser in transaction between Muhammad Nadeem and respondent No,4 Jawed-ul-Hassan. It appears that both the parties have been cheated by Muhammad Nadeem. So far as the question of last possessor is concerned, in the instant case it has been observed that respondent No,4 was lastly in possession of the vehicle being a legal owner by virtue of registration documents, thus by way of cheating one cannot be succeeded to prove its status as a last possessor. The car, according to the petitioner/applicant has been sold out to him by one Muhammad Nadeem, who has been implicated as an accused for the offence of cheating in the subject car, therefore, he does not come within the ambit of bona fide purchaser of the same. The important point for consideration is as to whether the car was sold out by the actual owner to the petitioner or by accused of the offence of cheating and dishonestly inducing delivery of property and forgery; and could the said accused sale the .Car in such circumstances.
8. In view of above discussion, the instant petition and Criminal Miscellaneous Application merit no consideration and are dismissed. However, the petitioner/applicant would be at liberty to pursue his available remedies in accordance with law.