MUHAMMAD NAEEM ANWAR, J. Through this single judgment in the instant petition I intend to decide Q.P. No. 29- N1 of 2021 titled "Siraj Khan Vs. State and others" & Q.P No. 76-M of 2021 titled "Said Zamin Vs. State and others" because all these petition are the outcome of an application of respondent No. 5, which culminated into Crime Report No. 179 dated 27.10.2020 Police Station Timergara under sections 406/34 PPC, wherein he charged Jan Nisar son of Shah Nawaz resident of Paito Dara and Abdul Maabood son of Afzal Maabood resident of Sado Tehsil Timergara for criminal breach of trust. It was alleged that he deals in transport business and it was agreed through elders of locality that he will pay an amount of Rs. 7,88,000/- to the accused and they will hand over to him four vehicles description of which are i) Diana blue colour model 1998 engine No. 137459, chassis No.WELAT424045 ii) Motorcar TZ Model 1998 Registration No.A11921 Chitral colour red, iii) Fielder Green Model 2002 & iv) Axio Model 2009 colour white Registration No. AM7012 Dir Lower. It was also alleged that he has paid the entire amount but they in violation of the agreed terms have sold and transferred the possession of the vehicles and have committed criminal breach of trust. The accused were charged for the offence and after completion of investigation challan was submitted before the Court of competent jurisdiction. During investigation Axio Model 2009/2010 colour white Chassis No. ZRE 142-6015211 was recovered from petitioner on 31.10.2020. The petitioner alleges himself to be owner and last possessor of it whereas respondent no. 5 claims it to be his ownership. Petitioner applied for custody of vehicle to Judicial Magistrate /IQ-1 Lower Dir but his application was turned down by his order dated 10.12.2020. He assailed the order of Judicial Magistrate before Additional Sessions Judge, Timergara but his revision petition was dismissed on 02.02.2021. Fielder NCP colour green Chassis No. NZE121-0029-8 was recovered from Rehmat Wali, petitioner of Q.P. No. 76-M alleges that Rehmat Wali was his driver and he is the owner of it as such entitled for its custody. Application of petitioner for custody was allowed by learned Judicial Magistrate Dir Lower at Timergara but the order was reversed by Sessions Judge Dir Lower on 20.09.2021. Hence, these petitions.
02. Learned counsel for petitioner contended that in Malakand Region Police, the vehicle in question was entered in the name of one Saeed Ullah in Documented Vehicle Record System (DVRS), whose brother Said Nawab through exchange transferred it to Yar Zaman Khan through deed dated 15.02.2019. Naseeb Ullah son of Yar Zaman Khan transferred it to Sher Bahadar vide deed dated 26.04.,2019. Sher Bahadar sold it to Umar Habib on 12.05.2019. On next following day i.e., 13.05.2019 Umar Habib transferred the vehicle to Said Munir Khan who transferred it to Sultan Khan through exchange deed dated 09.06.2019 however, this transaction was cancelled and in that respect an affidavit was written on 14.12.2020. Said Munir through exchange transferred the vehicle to Fazal Wahab on 10.10.2019. Lastly, the petitioner has purchased it from Fazal Wahab though deed dated 07.02.2020. He referred recovery memo and contended that on 31.10.2020 the vehicle in question was taken into custody by the local Police on 31.10.2020. He added that the petitioner is the bona fide purchaser and last possessor, therefore, is entitled for the custody of it. In support of his submissions, he placed reliance on the cases of "Muhammad Yousaf vs Abdul Wakeel and another." (2013 YLR 1746) and "RafiuIlah vs. Additional Advocate General, Peshawar High Court Bench Mingora/Darul Oaza, Swat and another" (2016 PCr.LJ 437).
3. Conversely, learned Counsel for respondent No. 5 contended that respondent No.5 is the purchaser from Sultan Khan on 12.06.2019, who has admittedly, purchased it from Said Munir through exchange on 09.06.2019. He added that Said Munir was no more owner of it since 09.06.2019, thus, he could not alienate it to Fazal Wahab on 10.10.2019.
4. Learned Counsel for Siraj Khan petitioner in connected petition No. 29-M of 2021 contended that the petitioner Siraj Khan is the owner of Fielder Registration No. NCP model 2002 and he has purchased it from Haider Zaman son of Gul Zaman which was taken into custody by the local police from his driver namely Rehmat Wali in connection with case FIR No. 179 of P.S Timergara and his driver has also submitted an affidavit dated 26.11.2020 and also recorded his statement before the Court of Additional Sessions Judge Timergara on 03.12.2020. As against him, learned Counsel for Said Zamin, the petitioner in Q.P No. 76-M of 2021 contended that the petitioner is the owner of Fielder through deed dated 12.02.2010 who has purchased it from Khan Badshah. He added that Rehmat Wali was his driver from whom it was taken into custody by the local Police and his driver while appearing in the Court stated that he was the last possessor of veh icle and has got no objection if it is returned to Said Zamin Shah and on the statement of last possessor it was rightly returned to the petitioner but through impugned order dated 20.09.2021 the order of learned Magistrate was set aside. He termed that the impugned order is unjustified, illegal and not tenable.
5. Arguments heard and with the able assistance of learned counsel for the parties' available record was gone through.
6. It is an admitted fact that the vehicles in question were taken into custody by the local police in connection with case FIR No. 179 dated 27.10.2020 of Police Station Timergara under sections 406/34 PPC. Both Axio & Fielder are NCP (non-custom paid), thus, there is no proper record of registration and undeniably, all the three petitioners are claiming themselves to be owners on the basis of their respective deeds. Furthermore, delivery of vehicle on superdari is meant primarily for the purpose of protection of property and to prevent further deterioration as same cannot be equated with the proof of ownership especially if no rival claimant for superdari of vehicle has come, then vehicle should have ordinarily been given on superdari to the person, from whom it was taken by police. During the course of arguments, it transpired that none of the parties has approached to the Court of competent jurisdiction.
Learned counsel for petitioner in the instant petition mainly contended that in criminal case, the Complainant Siraj Khan has got no interest and the proceedings in the criminal case were stopped under section 249 of the Code of Criminal Procedure. However, the complainant came to the rostrum and stated at the bar the proceedings in the criminal case have been resumed and now the case is pending adjudicating before the Court.
07. It is an admitted fact that all the parties claiming the vehicles in question to be their ownership with which the other has got no concern but it is equally important that none of them has adopted the proper mode to prove their title before the court of competent jurisdiction. Admittedly, in criminal proceedings, the Court cannot determine the title of the property. In the case of Ghulam Nabi (PLD 1961 Lahore 205) It was held that "Court unable to ascertain rightful owner of the property, directing same to be kept in malkhana until title is established by the parties in a Civil Court." It is the duty of court to ascertain the rightful owner of the property. In the case of "Central Co-operative Bank v.
Ahmed Bakhsh" (PLD 1970 SC 343) the Hon'ble Supreme Court has held that "in a proceeding under section 517
(1) of the Code of Criminal Procedure it is hardly desirable to decide the question of title to the property concerned, nor is the criminal Court competent to decide it either. The question of title, if any, should be left to be decided by the ordinary civil Court of competent jurisdiction." In the case of "Khalid Saleem versus Muhammad Jameel alias Billa and 6 others" (1996 SCMR 1544) it was observed by the apex Court that: "This section speaks of two types of properties regarding which Criminal Court has to pass an order i.e., the property regarding which any offence appears to have been committed and the property which appears to have been used for the commission of any offence. Neither of these provisions is applicable to this cast as the property in question was recovered from the house of the deceased in which dacoity was committed and taken into possession. It was neither the property regarding which an offence had been committed nor it had been used in the commission of offence.
Such being the case even if the property in question was not required but had been taken into possession the Court was duty bound to have ordered its return to the person from whom possession it was taken i.e., to the complainant or to the heirs of the deceased from the house which was subjected to dacoity. Reliance can be placed on Central Cooperative Bank Ltd., Sargodha v. Ahmed Bakhsh (PLD, 1970 Supreme Court 343). wherein distinction has been drawn in the application of sections 516(a) and 517 of the Criminal Procedure Code. First deals with the disposal of property in question pending trial of the case while the later makes provisions for disposal of property on conclusion of the trial. Rest of the property regarding which offence of dacoity appears to have been committed and its ownership is not disputed the Court has to order its return to its rightful owner. However, if there is dispute about its title, such question has to be determined by the Civil Court as provided for under section 517, Cr.P.C. and possession delivered to the person found entitled to it". Underline & bold for emphasis.
08. In the Case of "Saeed Ahmad versus The State and another" (1971 SCMR 774) the appeal was dismissed by the August Supreme Court and in that case, even accused was acquitted but the property was refused to be handed over to him on the ground that that accused and the complainant could not prove their entitlement. Likewise, in the case of "Ghulam Jilani versus Muhammad Yousuf and another" (1972 SCMR 159) it was observed that: "It will be noticed that the question whether the property in dispute should be restored to any of the parties is a discretionary matter. After going through the impugned order, I am satisfied that the High Court has exercised the discretion properly. There is disputed question of fact and law involved in this matter and the best course in the present case is that the parties should approach the civil Court for the determination of their title in respect of the vehicle in dispute.
No case has been made out to interfere in this matter." The vehicles is question are not the case properties because the case property in accordance with the provision of section 516-A Cr.P.C is the property regarding which an offence has been committed or which appears to have been used for commission of an offence whereas in the matter in hand all the petitioners claim that they are the rightful owner on the basis of their purchase through bargain receipts the evidentiary value of which could only be adjudged by the civil Court because at this juncture no findings can be given, thus, I do not deem it necessary to discuss those documents. No doubt that petitioner is the last possessor and from whose possession the vehicle Axio car was taken into custody in connection with the criminal case but keeping in view the document relied upon by him wherein even the chassis numbers of the car are not the same in the entire documents along with the chain through which he claims to be the bona fide purchaser of it. It would be appropriate for the parties to approach to the civil Court for determination of their rights pertaining to the vehicle in question.
09. Therefore, for what has been discussed above, these petitions are dismissed.