A preliminary objection has, been taken on behalf of respondent No. 2 as to the competence of this petition under section 561, Cr. P. C. On the ground that the impugned order passed by the learned Magistrate regarding the interim custody of the car in question in revisable under section 439, Cr. P.
C. And as such there would be no occasion for invok--ing section 561-A, Cr. P. C. There is obviously force in this contention. But it has been prayed on behalf of the petitioner that the petition may be heated as one under section 439, A Cr. P. C. I see no objection to the grant of this prayer and accordingly proceed to treat this petition under section 439, Cr. P. C. Notwithstanding the fact that the petitioner has come directly to the High Court instead of moving the learned Sessions Judge in the first instance.
2. The short background of the case is that Toyata Car Model 1969, bearing No. RIB-5856 was purchased by Muhammad Farooq (petitioner) from one Mukhtar Ahmad on the 16th of June 1969.
To be more precise the car had been pledged by Mukhtar Ahmad aforesaid with the petitioner for a sum of Rs. 23,000.00. The transaction seems to have been resorted to with a view to overcome the legal restriction on the sale of the car for a period of two years and the pledge was to be treated as sale in case the amount was not repaid on the relevant date. It appears that Mukhtar Ahmad had similarly obtained the vehicle in question on pledge from Gul Hameed (respondent No. 2) for a sum of Rs. 26,250.00 of which Rs. 10,000.00 were paid in cash and the balance of Rs.
16,250.00 was paid through a cheque to be encashed on the 28th of August 1969.
3. It was at the instance of respondent No. 2 that a case under section 406/420, P. P. C. Was registered at Cantonment Police Station, Rawalpindi on the 6th of July 1969 against Mukhtar Ahmad. The case is still pending investigation. The car was, however, recovered from the possession of the peti--tioner, the last vendee in the series, and was handed over by the lrarncd Magistrate on superdari to respondent No. 2 vide the impugned order dated the 16th of July 1969.
4. Having heard the learned counsel for the parties as also having perused the impugned order, . I am clearly of the view that the order cannot be sustained. The impugned order purports to have been passed by him under section 516-A, Cr. P. C. Which obviously is not the relevant provision inasmuch as it could only be invoked when any property of this kind is produced before the criminal Court during enquiry or trial. Since admittedly the case is pending investigation, section 516-A, Cr. P. C. Cannot be pressed into service. Likewise section 517 would be out of question inasmuch as that can be invoked after the conclusion of an enquiry or the trial as the case may be.
The only relevant section, therefore, to be invoked is section 523, Cr. P. C. The car was siezed by the Investigating Officer in the course of the investigation as a piece of property which creates suspicion of the commission of an offence. There would yet be another provision. The Magis--trate was called upon to make an order for the interim custody of the property and not for its final disposal.
5. It has been contended on behalf of the respondent No. 2 that besides having initiated criminal proceedings, the latter has also filed a civil suit claiming ownership of the vehicle in question. It is further submitted that the civil Court has also granted an ad interim injunction.
6. Two considerations have weighed with me in allowing the present petition. Firstly, it is well settled that normally, in cases of this nature the interim custody of the property soy seized should be handed over to the person from whom it is recovered unless there are strong reasons to the contrary. I have not been able to come across any permissive, much less compelling reasons to that effect. Secondly, prima facie, it is clear that the petitioner has been relieved of a sum of Rs.
23,000.00 whereas respondent No. 2 appears to have pocketed at least a sum of Rs. 10,000.00 in this regard. From that point of view as well the petitioner is a worse sufferer and as such is entitled to the interim custody of vehicle in question which admittedly was recovered from his possession I accordingly set aside the impugned order. However, in view of the fact that civil Court has already passed an ad interim injunction in favour of respondent No. 2, I would not make any further direction. This order shall, however, be without prejudice to any order passed by the civil Court. The position as it finally emerges, therefore, is that the criminal Court's order alone has been set aside and in order to get the custody of the vehicle in question, the petitioner has to overcome the hurdle with which he is confronted in the form of an ad interim injunction passed by the civil Court.