MUHAMMAD SALEEM JESSAR, J.---This Constitutional Petition is directed against the order dated 31.05.2016 whereby, dismissing the Criminal Revision Application No, 33 of 2016, the learned VIIth Additional Sessions Judge, Karachi-South maintained the order dated 15.04.2016, thereby the learned Judicial Magistrate-IX, Karachi-South dismissed the application, filed by .the petitioner under section 516-A, Cr.P.C. for restoration of the vehicle/car in his favour, on superdari basis.
2. Brief stated, facts of the case are that on 16.03.2015 petitioner/complainant lodged an FIR bearing Crime No, 175 of 2015 at P.S. Drakshan, District South, Karachi, under section 381/A, P.P.C., alleging therein that on 15.03.2015, at 0730 hours, he parked his car bearing Registration No, BCQ-750, Engine No, LDA-MF-65075588 Chassis No, - GPI-1075510, make Honda Fit, Model 2011, at Badar Commercial Street No, 11, Opposite Mehmood Sweet House, Phase-V, D.H.A., Karachi and went to his house. On 16.03.2015, at 1015 hours, he came back and found that his car was stolen by unknown accused person(s). After registration of the FIR, SIP Muhammad Arif, In-charge ACLC Clifton, conducted investigation of the case. Subsequently, on 12.01.2016 the subject vehicle was seized under section 550, Cr.P.C. by Gulshan-e-Iqbal police, as such, SIP Sarfraz of ACLC Clifton, after preparation of memo of re-seizedd deposited the vehicle in ACLC Sharifabad, Central Vehicle Pool. Thereafter, on 16.01.2016, the petitioner filed Misc. Application No, 8 of 2016 under section 523 read with section 516A, Cr.P.C. before the learned Judicial-IX, Magistrate, Karachi-South, which was initially dismissed for note-prosecution by the learned Judicial Magistrate, vide order dated 26.01.2016. Against that the petitioner preferred Cr. Misc. Application No, 14 of 2016, which was heard and allowed by the VIIth Addl. Sessions Judge, Karachi-South, vide order dated 06.04.2016, directing the learned Magistrate to decide the petitioner's application on merits. It is; thereafter, the learned Judicial Magistrate after hearing the learned counsel for the petitioner and ADPP dismissed the application on merits, vide order dated 15.04.2016, which was impugned by the petitioner in Cr. Revision Application No, 33 of 2016, the same was heard and also dismissed by VIIth Addl. Sessions Judge, Karachi-South, vide order dated 31.05.2016. It is against this order that the instant Constitutional Petition has been preferred by the petitioner.
3.Mr. S. Ehsan Raza, learned counsel for the petitioner, has contended that the petitioner is the real owner of the subject car, who purchased it on 16.12.2014 in the name of his ex-wife Mst. Fozia after the dissolution of marriage by way of Khulla on 16.05.2014 to facilitate his three children who are in the custody of her ex-wife. He has further contended that the petitioner being real owner of the vehicle is entitled to retain its possession, particularly when lastly it was in his possession. He has further contended that the learned Judicial Magistrate after dismissing the application of petitioner restored the possession of the vehicle to his wife through Attorney illegally, without applying his judicious mind. Lastly, the learned counsel prayed for restoration of vehicle in favour of petitioner by setting aside the impugned orders. In support of his contention, the learned counsel has placed his reliance on the case of Munir Ahmed v. Barkhurdar and 2 others (1992 SCM R 1454) and Rao Mohammad Talha v. The State (2001 YLR 1371).
4.On the other hand, Mr. Abrar Ali Khichi, learned A.P.G. has opposed the contention advanced by the learned counsel for the petitioner on the ground that the vehicle in question was seized by police under section 550, Cr.P.C. on being found in suspicious condition by Gulshane-Iqbal police on 12.01.2016 and the claim of the petitioner for its last possession is without foundation. He added that after the dismissal of application filed by the petitioner for restoration of the vehicle in his favour, the learned Judicial Magistrate-IX, Karachi-South, vide order dated 27.07.2016 restored the possession of the vehicle in favour of Mst. Fozia, hence the same has been returned to her on superdari by the CLC Sharifabad Central Vehicle Pool through Maad No, 47/16 dated 27.07.2016 and the said order of the learned judicial Magistrate has attained finality as the same has not been impugned by the petitioner, and since there is no illegality in the impugned orders, instant petitioner is liable to be dismissed.
5.We have heard the learned counsel for the petitioner as well as learned A.P.G. for the State and have gone through the impugned orders and material placed before us.
6. The record reveals that the FIR bearing Crime No, 175 of 2015, lodged by the petitioner on 16.03.2015, was disposed of by the police under "A" Class of Police Rules with the approval of S.S.P., ACLC, vide reference No, SS/ACLC/RDR/316, dated 30.03.2015. Later, on 12.01.2016 the subject vehicle was seized under section 550 Cr. P.C. by Gulshan-e-Iqbal police on being found in abandoned condition. The record further reveals that after the dismissal of the application, filed by the petitioner under section 523 read with section 516-A, Cr.P.C. by the A learned Judicial-IX, Magistrate, Karachi-South, vide order dated 15.04.2016 and Cr. Revision Application, arisen out of the said order, by the VIIth Addl. Sessions Judge, Karachi-South, vide order dated 31.05.2016, the owner of the vehicle on record, namely, Mst. Fozia preferred an application in terms of section 523, Cr.P.C. through her Attorney, which was allowed by the learned Judicial Magistrate, vide order dated 27.07.2016 and, admittedly, the said order has not been impugned by the petitioner before any competent forum.
7. Admittedly, as per the record of Excise and Taxation Department, the subject vehicle is registered in the name of Mst. Fozia since 17.12.2014. So far the claim of the petitioner that being its real owner he was lastly in possession of the vehicle, is concerned, suffice to say it that it is now well-settled principle of law that it is not the domain of criminal Courts, but of competent civil court, to decide the issue of title and ownership of any movable and immovable property. We would like to observe here that the section 523 of Cr.P.C. empowers a Magistrate to make such order "as he thinks fit" respecting the disposal or the delivery of the property, either seized under section 51 of the Cr.P.C., or alleged or suspected to have been stolen, or found under circumstances which create suspicion of the commission of any offence, to the person entitled to the possession.
Therefore, where the person entitled to possession is known, on the basis of documents placed before the Magistrate establishing his ownership in respect of vehicle seized, the custody of vehicle must be given to him.
8. We have also observed that the petitioner has failed to bring on record any material to substantiate his claim that he was lastly in possession of the vehicle. At the one hand, it is the claim of the petitioner that he had purchased the subject vehicle in the name of his ex-wife Mst. Fozia after the dissolution of marriage to facilitate his three children. On the other hand, petitioner claims that he was lastly in possession of the vehicle, which appears to be self-contradictory for the reasons that, admittedly, the children of the petitioner are residing with his ex-wife Mst. Fozia and if the petitioner had purchased the vehicle in the name of his said ex-wife to facilitate his children, then the subject vehicle should have lastly been in possession of Mst. Fozia.
9.For the foregoing facts and reasons, we are of the considered view that the Courts below have committed no illegality or irregularity while passing impugned orders and the case-law cited by the learned counsel for the petitioner is distinguishable so far the facts of the case in hand are concerned; therefore, instant Constitutional Petition being devoid of merit is dismissed accordingly, along with listed applications.
10.Above are the reasons of our short order, dated 05.01.2017, whereby instant petition was dismissed.