' AFTAB AHMED GORAR, J.---Petitioner Ghulam Arif Khan,. Approached constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, sought for the following reliefs:--
(A) Declare that the action of the respondent No,3, whereby impounding the vehicle No,ANX-739 is illegal, unlawful and without lawful authority.
(B) Declare the action of respondent No,3 in showing the arrest of petitioner in terms of section 54, Cr.P.C. Is illegal, unlawful, with mala fide and void, ab initio.
(C) Direct the respondent No,2 to register the F.I.R. Against the respondent No,3 under the relevant provision of law.
(D) Any other relief which this Hon`ble court may deem fit and proper.
(E) Cost of the Petition.
2. Briefly, sum and substance of the instant petition would reflect as follows:- "Petitioner purchased vehicle bearing Registration No,ANX-739 GLI, Make Toyota Corolla, Model 2007, Black colour from one Najam Alain Siddiqui, who was his subordinate as Chief Engineer while petitioner was posted as Managing Director (KW&SB); registered in the name of his brother Anwar Alam Siddiqui against the sale consideration of Rs,10,00,000. Out of which, petitioner paid Rs,8,00,000 to the Najam Alam therefore, peaceful possession was handed over to petitioner with running paper of the documents and remaining amount of Rs,2,00,000 will be payable at the time of transfer of the vehicle in the name of petitioner. On 11-10-2012, Anwar Alam lodged F.I.R. Bearing No,232 of 2012 at Police Station Clifton against the petitioner for an offence punishable under sections 420/406 P.P.C. In the instant F.I.R., petitioner was granted ad interim pre arrest bail by the incharge District and Session Judge, Karachi, South on 2-11-2012; thereafter bail was confirmed by the Session Judge, Karachi, South on 10-11-2012. During the course of investigation, the investigation officer recorded statement of the petitioner, petitioner also joined the investigation; the investigation officer conducted spot enquiry as well. After completing the recourse of investigation, investigation officer submitted report under "A" class observing that since the matter pertains to civil nature and there is a lack of evidence. However the learned VI-Judicial Magistrate Karachi, South, issued notice to the complainant, he chooses to remain absent and learned VI- Judicial Magistrate, Karachi-South accepted the report of police under "C" class instead of "A" class by observing that the element of mens rea seems missing and the matter on the face of record pertains to civil nature vide his order dated 27-2-2013. On 28-3-2013 at about 7:00 hours when petitioner was available in his house, two police constables came at the house of the petitioner who took away the vehicle forcefully from house of the petitioner with directions to the petitioner that he should appear at Police Station. Petitioner tried to convince the Police Constable by saying that this matter was earlier investigated and finally it was disposed of under "C" class by the concerned VI-Judicial Magistrate, Karachi-South. Petitioner in pursuance to the directives given by the Police Constables, appeared before SHO PS Clifton, he produced all the necessary documents including the order passed by the learned VI-Judicial Magistrate Karachi-South and explained that he is a bona fide purchaser of vehicle bearing registration No,ANX-739 since last four years. Despite all best efforts taken by the petitioner, respondent No,3 SHO PS Clifton misbehaved the petitioner and he also used some filthy words to the petitioner; consequently, the respondent No,3 told the petitioner that he will impound the vehicle under section 550, Cr.P.C. And he was also arrested in terms of section 54, Cr.P.C. By keeping such roznamcha entry at Police Station"
3. I have heard learned counsel for the petitioner and learned A.P.-G. For the State.
4. Learned counsel for the petitioner has contended that F.I.R. Lodged by one Anwar Alam against the petitioner, in which petitioner has obtained ad interim pre arrest bail; same was confirmed by the Session Judge, Karachi-South; said F.I.R. Was disposed of by the learned VI-Judicial Magistrate, Karachi-South under "C" Class. Learned counsel further contended that ex-S.H.0, Police Station, Clifton (respondent No,3) .With mala fide intention impounded the vehicle in question from the house of petitioner and such report was too furnished before the VI-Judicial Magistrate, Karachi- South under section 550, Cr.P.C. And incharge VI-Judicial Magistrate, Karachi-South handed over the car to Anwar Alam on 30-3-2013. Learned counsel for the petitioner has relied upon 2005 SLJ 734 Karachi and PLD 2009 Lahore 382.
5. Learned A.P.-G., opposes the petition and stress his arguments that learned VI-Judicial Magistrate, Karachi-South has handed over the custody of car on superdari basis to Anwar Alam; the matter pertains to civil nature; petitioner is at liberty to approach the competent civil Court for redressal .Of his grievances.
6. Having gathered the respective submissions raised and perused the material available on record. It is an admitted fact that, petitioner has purchased the Car from one Najam Alam Siddiqui to the tune of Rs,10,00,000 out of which, petitioner paid an amount of Rs,8,00,000 to Najam Alam Siddiqui; remaining balance amount of Rs,2,00,000 will be payable at the time of transfer of car in the name of-petitioner but since than neither Anwar Alam transferred the car in the name of petitioner nor petitioner paid the remaining balance amount to the owner of vehicle/car; such F.I.R.
Was lodged by Anwar Alam Siddiqui against the petitioner; report of investigating officer is very much clear whereby learned VI-Judicial Magistrate, Karachi-South dispose of F.I.R. Under "C" class and he also issued notice to the complainant but complainant did not bothered to appear even before the learned Judicial Magistrate. Learned Judicial Magistrate VI-Karachi, South, has ordered that from the F.I.R., the element of mens rea seems missing and the matter on the face of record pertains to civil nature. Complainant has not challenged the order of learned Magistrate at any forum. S.H.O. Police Station Clifton illegally and unlawfully impounded the car when he knows about the case; he also knows that F.I.R. Was disposed of under "C" class by the learned Magistrate on the report of investigating officer of the case as well. S.H.O. Has also furnished report under section 550, Cr.P.C, S.H.O. Illegally arrested the petitioner and also learned incharge Judicial Magistrate-VI, Karachi South without completing the requisite formalities handed over the car on superdari basis to Anwar Alam Siddiqui.
7.It is also transparent and crystal clear that mashirnama of seizure of car would reflect that car was recovered from bungalow of the petitioner but learned incharge Judicial Magistrate-VI; Karachi-South did not bother to issue notice to the petitioner to clarify the cook-box. Station House Officer has furnished report before the learned Magistrate on 29-3-2013 and learned incharge Magistrate had handed over the car on superdari basis on 30-3-2013 in a rapid and hurry manner; while administration of justice would realize either party must be heard; and no one should be knocked out on technicalities rather to decide controversy on merits while providing equivalent opportunity of being heard. The said car was not stolen property and same was purchased by the petitioner in lieu of consideration from one Najam Alam Siddiqui (brother of complainant of Crime No,232 of 2012). In a case-law reported in 1968 SCMR page 1143, lays down as follows:-- "Order of disposal or seizure should not be passed without proper enquiry"
8. I have also gone through the record, which reveals that custody of the seized car, car in dispute had neither been forcibly snatched nor found involved in the commission of any offenceand the police was not justified in seizing it under section 550, Cr.P.C. From the house of the petitioner. Apart from above, there is nothing on record with regard to the statement of Javed who has informed to 15 Madadgar from his cell phone, even SIP Shafiq Tanveer did not obtained any warrant from the concerned/Magistrate to enter into the house of petitioner. Petitioner belongs to a respectable family. The conduct of SIP is highly deplorable. Nobody can be allowed to enter into house, there is no reasonable ground that petitioner has committed any offence and in this regard nothing even has brought on record. In my considered view that act of the SIP Shafiq Tanveer and Saleemullah Qureshi ex-S.H.O. Police Station Clifton is/was not in accordance with the Law and highly deprecated.
9. The Administrative Order can be challenged before the High Court under section 561-A Cr.P.C. If the order amounts to an abuse of the process of Court. Reference is invited to Arif All v. The State (1983 SCMR 187). (supra).
' In the case of Javed Jqbal v. Crescent Commercial Bank Ltd. (supra) reported in PLD 2009 Lahore 382, it has been held as follows:- "----Ss. 523 & 550---Constitution of Pakistan, Art.199--- Constitutional petition---Seizure of property suspected to be stolen---Procedure by Police upon seizure of such property---Car in question in the case was neither alleged nor suspected to have been stolen---No circumstances whatsoever was available which could create suspicion of commission of offence---Bona fide civil dispute was about the vehicle between the purchaser/petitioner and the leasing Bank/respondent arising out of terms and conditions of lease purchase agreement between them--No occasion existed for S.H.O. Concerned to seize the vehicle till resolution of their said dispute---Seizure of vehicle being in utter disregard of the mandate of 5.550, Cr.P.C. Was amenable to judicial scrutiny in exercise of constitutional jurisdiction of the High Court---S.H.O.
Has adopted self-styled procedure over and above the law---Under S.523, Cr.P.C., S.H.O. Was duty bound to report seizure of the car to the area Magistrate without wasting a single moment so that the Magistrate could make an appropriate order regarding the disposal of the car or the delivery of the seized car to the person entitled in its possession---Magistrate was legally bound to quash the proceedings conducted by the S.H.O. Being offensive to Ss. 550 and 523, Cr.P.C. And to return the car to his purchaser from whose possession it was seized by the S.H.O.---Impugned orders being arbitrary, perverse, illegal and offensi4 to the established principles governing the subject of seizure of movable property by the Police and its disposal, could not be allowed to hold the field-- -Impugned orders were set aside by the High Court with direction to the local Police to hand over the vehicle to the purchaser/the petitioner"
10. Station House Officer, Police Station Clifton, Karachi-South, is hereby directed to recover the Car from Anwar Alam and hand over the peaceful custody of car bearing Registration No,ANX-739 GLI, Maker Toyota Corolla, Model 2007, Black colour, Chasis No,NLE-120-6067398 and Engine No,X590429 to the petitioner forthwith on furnishing P.R.Bond in the sum of Rs,10,00,000 by the petitioner, as there is/was no justification for taking over the car in possession under section 550, Cr.P.C.; therefore, the order of learned incharge Judicial Magistrate-VI, Karachi-South dated 30-3-2013 is hereby set aside. Maybe petitioner, if so advised, approach SSP South-Zone Karachi, detailing his grievances in writing who would look into the matter and thereafter, if a cognizable offence is made out against SIP Shafiq Tanveer and Inspector/ex-S.H.O. Police Station Clifton Saleemullah Khaiid Qureshi then he ought to proceed strictly in accordance with the Law. The petitioner is further directed not to sell the said car neither change its colour, type, Engine and chassis number till final disposal. The S.H.O. Police Station Clifton South-Karachi is directed to make compliance immediately and such compliance report should be transmitted to this Court through MIT of this Court.
11. Before parting with the case, it is clarified that parties may avail such a legal remedies as are available to them in accordance with the law. Nothing said herein, will prejudice the case of either party before the Civil Court or any other forum. .
' The constitution petition is disposed of.