The applicant above-named, being aggrieved by order dated 22nd March, 1979 passed by Additional Sessions Judge, Karachi in Criminal Revision Application No. 71/79 filed by the respondent No. 4 above --named, by which he set aside the order dated 18th March, 1979 passed by the learned A. C. M. (South) Police Station Bughdadi, Karachi, by which the said learned A. C. M.
Had rejected respondent's 4 application for handing over of possession of 28 bales of goatskins on superdginama, has preferred this petition, on the following facts and grounds :--
2. The facts out of which the above petition arises are that a case under section 420/406, P. P. C.
Was registered against accused Ashiq Ali and others, in the Court of A. C. M. Ilaqa Police Station Bughdadi (South) Karachi, in which case 28 bales of goatskins were seized, as the case property.
Pending disposal (if-this case, respondent No. 4 moved an application dated 14th March, 1979 before the said learned A. C. M. For possession of the said 28 bales of goatskins, on superdginama.
The learned Magistrate by his order dated 18th March, 1979, rejected the said application of respondent No. 4 at that stage, on the ground that state--ments of the mashirs of recovery were not yet recorded.
3. Respondent No. 4, against the order dated 18th March, 1979 of the learned A. C. M. In question, filed Criminal Revision Application No. 71/79 under sections 435/436 and 439-A, Cr. P. C., in the Court of IIIrd Additional Sessions Judge, Karachi, which was allowed by the said learned Additional Sessions Judge, Karachi, vide his order dated 22nd March, 1979 and the goods in question were ordered to be delivered to respondent No. 4, on superdginama.
4. The applicant above named is the son of late S. Mohammad Usman, with whom it is alleged that respondent No. 1 Ashiq Ali had pledged 28 bales of goatskins in question. S. Mohammad Usman expired on 21st.July, 1978. According to the present applicant, the said goods were in his lawful custody, on 13th March, 1979 when respondent No. 5, Abdul Rashid Shah, Sub-Inspector of Police C. I.
A. Karachi, under threat, coercion and criminal intimidation forced and compelled the applicant to deliver possession of the said goods, which were stored by the applicant in the godown at Karachi Press, SITE Karachi. According to the applicant, respondent No. 5 neither prepared any memo of seizure nor any mashirnama, at that time.
5. That on 17th March, 1979 the applicant approached his Advocate and through them called upon D. I. G. Karachi, under whose administra--tive control, respondent No. 5 was working, to return/restore the said goods to the applicant from whose custody the said goods were unlawfully and illegally taken away and removed by respondent No. 5, under the colourful exercise of his official duty. Since applicant did not receive any reply from D. I. G. Karachi to their legal notice, the applicant and the other legal heirs of deceased S. Mohammad Usman were obliged to file a civil suit bearing No. 244/79, in the High Court against the respondents Nos. 1, 5, D. I. G. Karachi and the Government of Sind through Secretary, Ministry of Home, Sind, for recovery of Rs. 1,81,335 with cost and future interest thereon and also sought an order through an interlocu--tory application for attachment of said 28 bales and also prayed for sale of said goods for the realisation of the decretal amount of the decree, that may be passed in suit No. 244/79.
6. That respondent No. 5, appeared before the High Court in the said suit in response to notice of an application under Order XXXVIII, rule 5, C. P. C. And filed a counter affidavit admitting therein very clearly and without any ambiguity the recovery of 28 bales of goatskins from the custody and possession of applicant, on 13th March, 1979 from Karachi Press, SITE, Karachi, in connection with the investigation in Criminal Case No.78/79.
7. That the' applicant thereafter obtained certified copies of the F.I.R. Bearing No, 78/79, remand reports under section 167, Cr. P. C. And also the certified copy of the: order passed by the learned IIIrd Additional Sessions Judge, Karachi, in Criminal Revision Application No. 71/79 and has, filed the above petition on the grounds mentioned in the above petition,
8. The first contention that has been urged by the learned Advocate for the applicant before me was I that, plain and simple reading of the F.I.R. Reveals, beyond any doubt, that no criminal offence whatsoever has, prima facie, been made out and the transactions alleged by respon--dent. No. 4 are purely of civil nature. The registration of the case by the police on the complaint of respondent No. 4 was an abuse of power by the police and recovery of 28 bales of goatskins from the custody and possession of the applicant forcibly and illegally by the respondent No. 5, was in violation of the established principles of criminal and was contrary to the rules and procedure of investigation and clear violation of manda--tory provisions of law, applicable to investigations of cognizable cases.
9. The second contention, that has been urged by tine learned Advocate for the applicant before me was, that the respondent No. 4 deliberately and intentionally in his application suppressed the material fact, in order to mislead and misguide the Honourable Court, that the goods in question were admittedly recovered from the possession and custody of the applicant, which were stored by him in a godown and that under the law it was the applicant, who was legally and lawfully entitled to the return of the articles; seized from his possession by the police and consequently both the learned lower Courts passed the impugned orders, without hearing the applicant and as such principles of natural justice were violated and therefore the said orders :cure to be set aside under section 561-A, Cr. P. C. In order to cure the ends of justice.
10. The third contention that has been urged by the learned Advocate for the applicant before me was, that the impugned order of the learned IIIrd Additional Sessions Judge, has resulted in miscarriage of justice and the Court 'of superior jurisdiction cannot allow any such miscarriage to continue. The applicant is absolutely within his rights to bring to the notice of this Court the illegality and material irregularity in the conduct of judicial proceedings, by invoking its revisional and inherent powers, to prevent abuse of process of law to Court or other--wise to secure the ends of justice.
11. The last contention that has been raised by the learned Advocate for the applicant before me was, that injustice caused to the applicant is patent on the record and is palpable in character and there is no suitable and efficacious remedy available to the applicant, for getting the goods restored, which the applicant lawfully and legitimately had held prior to 13th March, 1979 and which was illegally and by use of force, violence and threat of false implication and prosecution was secured and obtained by the respondent No. 5; in active collaboration and collusion with the respondent No. 4, which is evident from the remand application moved by respondent No. 5, before the learned Magistrate in question, in which the respondent No. 5, deliberately and intentionally avoided to mention the fact, that the said goods were secured and obtained from the applicant.
The learned Advocate for the applicant further submitted that it is the settled law that the applicant, being the person from whose possession the 28 bales of goatskins were secured, is the person, who is lawfully and legitimately entitled to its return in the interest of justice.
12. The learned counsel for the applicant in support of his above contentions has relied upon the cases reported in 1976 P Cr. L J 747, 1978 PCrLJ 69, PLD 1967 SC 317, 1972 P Cr. L J 363, PLD 1980 Kar. 294 and 1980 SCMR 954.
13. Learned counsel for respondent No. 4, on the other hand, submitted, that respondent No. 4, is not party to the Civil Suit which is pending in the High Court. Counsel further submitted that since the impugned order was passed in tae exercise of Revisional jurisdiction by the learned Additional Sessions Judge, Karachi, under the provisions of sections 435 and 439. Cr. P. C., the above application under section 561-A, Cr. P. C. Is not maintainable. Counsel further submitted, that giving of notice to the present applicant in respect of respondent No. 4's application under section 516-A, Cr. P. C. Was not necessary. Counsel further submitted, that section 561-A, Cr. P. C. Is not an alternate remedy. In support of these contentions, counsel relied upon cases PLD1967SC317andPLD1968SC281.
14. Learned counsel appearing on behalf of the State submitted, that only one revision was available against the order of the learned A. C. M. In question which was filed by respondent No. 4, before the learned Additional Sessions Judge, Karachi and as such the above application is not maintainable under section 561-A, Cr. P. C. Learned State counsel further submitted, that since the applicant was not a party before the trial Court, the only remedy available to him was a Civil Suit, which according to him, he has already filed, and as the present applicant has no locus standi to file an application under section 561-A, Cr. P. C. Before the learned trial Court. Learned State counsel further submitted that the orders passed by learned Additional Sessions Judge, Karachi in Criminal Revision Application No. 71/79, dated 22nd March, 1979 is proper and a legal order.
15. I have carefully considered the submissions made by the learned counsel for the parties. It may be noted, that it is an admitted position, that the goods in question were secured from the possession of the present applicant, in respect of which present applicant states, that these good were pledged by respondent No. 1 with his father late S. Mohammad Usman and after his death, the said goods were in possession of the present applicant on the same basis. It is also an admitted position, that respondent No. 4 in his application under section 516-A, Cr. P. C. Did not disclose the fact, that the goods in question were seized from the possession of the present applicant nor he made the present applicant a party in the Criminal Revision Application No. 71 /79, which he filed before the learned Additional Sessions Judge, Karachi. In view of the above-admitted facts, that applicant was not at all heard by the learned trial Court as well as by the learned Additional Sessions Judge, Karachi although the goods in question were seized from his possession, in respect of which the pledged is claimed, the powers under section 561-A. Cr. P. C. Are available to this Court to secure the ends of justice. This contention of mine is supported by the observations made by the Divisional Bench of this Court, in the case of Pir Sultan Ahmad and another v. Haji Abdul Hameed and another (PLD 1980 Kar. 240). The authorities cited by the learned counsel for respondent No. 4, namely, PLD 1967 SC 317 and t PLD 1968 SC 281 in my opinion, are based on different facts and are not applicable to the present case, as admittedly the applicant was given no notice of respondent No. 4's application under section 516-A, Cr. P. C. Although the goods in question were seized from his possession, nor in the Revision Application, the applicant was made party by respondent No. 4, although the respondent No. 4 was fully aware of the fact; that the goods in question were seized from the possession of the present applicant, who claimed pledged in respect thereof. It is now well-established law, that no adverse orders could be passed against any person, without giving him an opportunity of being heard. In the present case, the value of goods is substantial and the applicant, claims pledge over these goods and as such be was entitled to notice of respondent No. 4's application, in my view. Since the respondent No. 4 kept the trial Court in dark about this fact and since the respondent No. 4 deliberately did not make the present applicant as party in his Revision Application, on this ground alone I would set aside the impugned order dated 22nd March, 1979 passed by the learned Addi--tional Sessions Judge, Karachi, in Criminal Revision Application No. 71/79. The learned trial Court is directed to dispose of respondent No. 4's application dated 14th March, 1979 under the provisions of section 516-A, Cr. P. C., after affording an opportunity to the present applicant of being heard, who will also be at liberty to move such application, if he is so advised, as in my opinion, since the goods in question were admitted seized from the possession of the present applicant, he has every right to move an application under section 516-A, Cr. P. C., if he so desires, as it I g an established law, that the property seized from the possession of person, ordinarily ought to be returned under the provisions of section 516- A, C. P. C. To such person on superdginama, pending disposal of the case and in case of dispute about the ownership, the same must be determined by the competent Civil Court. In this connection, I am fully supported by cases 1972 P Cr. L J 363 and 1976 P Cr. L J 747 and PLD 1971 Kar.
906.