' MOHAMMAD IBRAHIM KHAN, J---Where it's at, Motorcar bearing Registration No,BA-3153 Peshawar XLI Model 2007 Chassis No,NZE1206073389 Engine No,X620246 Colour Rose Metallic, is the case property of case FIR No,1201 dated 23.10.2014 under section 406, P.P.C. registered at Police Station Hayatabad, Peshawar.
2. The petitioner an accused, considering himself to be the lawful owner submitted an application for the return of this motorcar before the Court of learned Judicial Magistrate, Peshawar, then filed Revision before the Court of learned Additional Sessions Judge-III, Peshawar whereby the application was dismissed on 09.02.2015 and 'the Revision also met with the same fate on 01.04.2015 by the learned respective Courts.
3. This is a petition under section 561-A read with section 516-A, Cr .P.C. with the following prayer: "that on acceptance of this petition, the impugned order dated 09.02.2015 passed by learned Judicial Magistrate, Peshawar order dated 01.04.2015 passed by the learned ASJ-III, Peshawar may kindly be set aside and consequently the application for return of vehicle in question may kindly be accepted and the petitioner may kindly be handed over the abovementioned vehicle on superdari till the final decision, of the above noted case."
4. With ray of hope for the success of the prayer, learned counsel for the petitioner has placed reliance on 1991 M LD 2590 (Qaiser Shafique Vohra v. The State and another), 2005 YLR 1748 (Muhammad Imran v. Muhammad Shafique) and 2004 PCr.LJ 1 (Lahore) (Muhammad Akmal Shah v. D. S. P and others) and implored for the return of the vehicle to the petitioner. While repelling the contention in the light of the judgments opposed the grant of prayer for the return of the vehicle with, all fervency by the learned counsel for respondent No,2 and learned AAG for the State, assisted by Chaudhry Abdur Razzaq, Advocate on behalf of Trust Investment Bank Limited.
5. Having heard learned counsel for the parties, record was gone through with their valuable assistance.
6. While peer out sighted the order dated 09.02.2015 of the learned Judicial Magistrate-VI, Peshawar it is perceived with the following observations: "Both the parties claims their ownership of the vehicle one on the basis of auctioned documents while the order on the basis of Court decree/order granted by Worthy Judge Banking Court-I, Peshawar/KPK. The determination of the title of the vehicle is not the domain of this Court.
Furthermore, the vehicle in question was recovered through search operation made by agencies in FIR area as evident from the recovery memo available on file. So the factum of last possession of the same could not be comprehended at this stage," thereby the petition stood dismissed.
' Likely the judgment in Criminal Revision No,.06 of 2015, the learned Additional Sessions Judge-III, Peshawar has also remarked the following observations: "In the backdrop of the above stated position and in view of rival contentions each supported by its own documents, the vehicle in question has become highly disputed between the rival claimants and it is not the domain of this Court sitting in criminal revisional jurisdiction to decide the question of the title as well as question of entitlement of the petitioners and to discuss/dilate upon the validity or otherwise of the two set of documents. Even otherwise a case under section 406, P.P.C. has already been registered and it will be for the trial Court to decide the questions involved in the matter."
7. This matter at issue is not so arduous to look into the prayer and not to resolve it by way of this order. It is without exaggeration that the petitioner being lessee vide lease 4914/LA/11/2007 for a total amount of Rs,16,22470/- according to the ALR Calculation Sheet. When this legal character was denied by the officials of M/s. Trust Investment Bank Limited, Suit No,194/1 of 2010 was instituted in the learned Banking Court-I, KP Peshawar. In this suit several opportunities were given to the said Bank and in the course of proceedings the petitioner was entitled to the decree for declaration in his favour with the directions to the concern Bank to return the vehicle back to him, however the running installments were to be regularly paid till the agreed period. A Misc. Application No,21/6/2014 for implementation of the judgment and decree dated 29.09.2011 in the same suit was preferred before the learned Banking Court-I, Peshawar whereby through an order dated 16.09.2014, the application was accepted and the respondent Bank was directed to issue NOC in favour of the petitioner for registration of the vehicle subject to payment of the dues, if any.
' It is of much importance for the determination of the fate of this petition to reproduce the findings contained in the order dated 16.09.2014 (ibid).
"Record reveals that on 29.09.2011 suit of the present petitioner was decreed against the defendant bank to the extent that on payment of the due amount the plaintiff would be entitled to get the leased vehicle released in his favour. Farmed counsel for the applicant stated that in compliance of the said order, the plaintiff/decree holder has deposited the due amount but the bank is reluctant to issue NOC. Hence petitioner has filed instant application for implementation of the judgment and decree dated 29.09.2011. Notices as prescribed were issued to the respondent bank but none appeared on behalf of the bank."
8. It is astonishing that the Trust Investment Bank Limited has issued the certificate dated 17.10.2014 in favour of the petitioner on acknowledgement of bank lease finance. For ready reference its extract are highlighted here: TO WHOM IT MAY CONCERN "Reference to Letter No, TIBI/PSH/OPS/107 acknowledgement of Bank Lease Finance Account No: 4914 receipt. It is to certify that applicant namely Luqman All son of Firdoos Khan resident of Village Achini Payan, Post Office University of Peshawar has successfully completed lease in respect of Toyota Corolla XLI model No: 2007, Registration No: BA-3153 Engine No, X620246, Chassis No, NZE120-6073389 Colour rose Metallic and nothing outstanding against him. Therefore the care has been transferred to the applicant name.
' It is further stated that the bank have no objection on the applicant to sell, or transfer, rent the above model car to anyone in Pakistan."
9. Let see the likeness of aspiration of Respondent No,2 Fahad Imran (complainant lodger of FIR No,1201 dated 23.10.2014). He has come up with coequal particulars of the. Motorcar in question, seeking superdari from the related learned Court of Judicial Magistrate (JMIC-VI), Peshawar and Additional Sessions Judge-III, Peshawar, whereby both the applications and Criminal Revision were dismissed respectively. He claims to have become lawful owner on account of purchase on payment of Rs,11,00,000/- from a Bargain known as Islamabad Motors. A look over would reveal that Sajjad Anwar is the seller and Jehan Zeb is the buyer. There is no other document available on record in utter affirmation of ownership of respondent No,2 (Fahad Imran) who is yet to establish his ownership by an appropriate remedy, if advised.
10. A look over the order sheet 18.04.2016 would reveal that M/s. Trust Investment Bank Limited being a necessary party was arrayed on the panel of respondents. Learned counsel defending interests picked arguments in affirmation of the agreement pertaining to lease 21914/LA/11/2007 in between the petitioner (Luqman Ali) and Trust Investment Bank Limited. Earlier regular installments were deposited on account monthly rental settlement, but later on defaulted then Motorcar was repossessed by the Bank authorities. The Trust Investment Bank Limited in order to recover the arrears have also filed suit for recovery under section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 for Rs,916,217/- along with costs and cost of funds before the learned Banking Court-IV, Lahore. The decree was followed for Rs,5,47,486/- with cost of funds in favour of Bank by Judgment dated 14.05.2013. This is to mention here that under section 19(1) of Financial Institution (Recovery of Finances) Ordinance, 2001, the decree was converted into execution. Later for want of process under Order XXI, Rule 37, C.P.C. when not complied with the order dated 06.02.2015 which is self-explanatory is transcribed: Or: 06.02.2015 "Again process under Order XXI, Rule 37, C.P.C. for issuance of notices against the judgment debtors has not been submitted. Record reveals that the same has not been deposited for the last 7 dates. It seems that the decree holder bank itself is not interested in the proceedings of execution petition. The court cannot keep the case pending indefinitely just to adjourn it on different dates without any progress; hence, the execution petition in hand is adjourned sine die.
However, the decree holder bank would be at liberty to seek the revival of the execution petition after coming out of deep slumber. Till then file be kept intact in record."
11. While drawing a razor thin comparability, holding prima facie ownership for the purpose of superdari petition, this Court has emphasized on the presumption as to documents produced as record of evidence. The relevant Article 91 of Qanun-e-Shahadat (10 of 1984) reads as:
91. Presumption as to documents produced as record of evidence. Whenever any document is produced before any Court, purporting to be a record or memorandum of the evidence or of any part of the evidence given by a witness in a judicial proceeding or before any officer authorized by law to take such evidence or to be a statement or confession by any prisoner or accused person, taken in accordance with law, and purporting to be signed by any judge or Magistrate or by any such officer as aforesaid, the Court shall presume: ' That the document is genuine; that any statement as to the circumstances under which it was taken, purporting to be made by the person signing it, are true, and that such evidence, statement or confession was duly taken."
' Admittedly, the proceedings before the Court of learned Judge Banking Court-I, Peshawar wherein the M/s. Trust Investment Bank Limited through its representative pertaining to the matter for declaration, the certificate and all the relevant ownership documents were made as part of the proceedings, therefore, strong presumption is attached to the documents itself and the judicial pronouncement. It has been held in 2002 SCM R 1336 (Muhammad Ramzan v. Lahore Development Authority Lahore).
"Art. 91...Judicial proceedings...Strong presumption of correctness and sanctity of high order is always attached to judicial proceedings."
12. In the light of the observations made in this judgment with particular reference to the judicial pronouncement of the Court of learned Banking Court-I, Peshawar, petitioner is held entitled to superdari of the motorcar, the particulars of which are mentioned in Para No,1 of this judgment.
While allowing this petition, petitioner is directed to furnish security bond to the tune of Rs,5,00,000/- (five lacs) in person with an undertaking to the satisfaction of Judicial Magistrate concern that he shall not sell or transfer the motorcar till conclusion/decision of case. It is to state here that observations and findings based on tentative assessment and are only restricted to superdari of this motorcar within the prayer of this petition, thereby shall not affect any other order of any Court or forum. The trial Court shall not be prejudiced and decide the ultimate fate of accused on merits alone.