' This order will dispose of three applications filed in this Court for grant of interim custody of tractor 480 - Fiat No, 6677 MNB, Model 1977, pending final decision of the relevant criminal case. The first application, Criminal Miscellaneous 74/84, is by Javed Arshad which was received by post on 24- 11-1984 and was later put in amended form as Criminal Miscellaneous 94/85, dated 19-1-1985 and therefore merged in the latter application. The second application, namely, Criminal Miscellaneous No, 53/85, dated 5-3-1985 is by U.B.L. Chauk Shah Abbas Branch, Multan. The third application Criminal Miscellaneous No, 73/85, dated 19-5-1985 is by Khadim Hussain.
2. The facts of the case are that F. I. R. No, 54/81 was lodged by Zahoor Din, A .V.P., U.B.L., Multan that accused Imtiaz Ahmad an officer of the bank got a loan for a sum of Rs, 67,000 sanctioned in favour of Aftab Ahmad, his real younger brother, by filing a loan application for purchase of tube- well, wheat thrasher, fertilizer and trolly which application purported to have been filed and signed by Aftab Ahmad but had not been filed and signed by the said person and had actually been filed by the said accused in the name of Aftab Ahmad by forging his signature on the said application.
The pay orders for the amount of Rs, 20,000, Rs, 44,000 and Rs, 2,000 issued respectively in favour of Ghazi Industries, Mian Traders and Asian Corporation had been got encashed from the counter on verification by said Imtiaz Ahmad accused of counterfeit signatures of payee forged by him and cash proceeds aggregating Rs, 67,000 had been deposited on the same day in Account No, 1492 opened by the accused in the said branch in the false name of Aftab Ahmad with an initial deposit of Rs,
2. Out of this sum, by means of four cheques, a total sum of Rs, 7,100 was withdrawn while on the basis of a cheque for Rs, 60,000 issued by said Imtiaz Ahmad in the false name of Aftab Ahmad, a demand Draft No, 480934/1 drawn on Drigh Colony Branch of UBL, Karachi in favour of Squardron Leader M. A. Mumtaz, the real brother of Imtiaz Ahmad, accused was obtained.
' Later when the borrower was asked to deposit the instalments due or over due, no response was received and on inquiry it was found that Pass Book No, 732530 prepared in connection with the said agricultural loan was fake and its contents were false and bogus. On further inquiry it was found that said accused Imtiaz Ahmad had in collusion with some other persons prepared/got prepared fake pass book and on the basis of this fake document cheated the bank and misappropriated the sum of Rs, 67,000.
4. In the investigation it was found that the said sum of Rs, 60,000 had been used for purchase of tractor and its accessories. Lt.-Col. Mumtaz Ahmad, real brother of accused, who was Garison Engineer in the Army at Karachi at that time made a statement that with the money received on the basis of said pay order, he had at the instance of Imtiaz Ahmad, purchased Tractor Fiat - 480 and its by in the name of Imtiaz Ahmad and sent the same by truck to the accused Imtiaz Ahmad at M ultan.
5. The said tractor was recovered by the police from Khadim Hussain on 15-2-1984, who made a statement before the police that he had purchased Tractor Fiat No, 6677 MNB from Javed Arshad for Rs, 80,000 some years ago and an agreement to that effect had also been executed by Javed Arshad in his favour on 17th May, 1980. The agreement by virtue of which said Khadim Hussain had purchased said tractor for the said sum was copied by the Investigating Officer in para. No, 6 of Zimni No, 104 of police file of this case.
6. Javed Arshad had earlier filed application, Criminal Miscellaneous 18/84, for grant of interim custody of the said tractor on Sapurdari but the same was dismissed as per my order dated 13-12- 1984 on the ground that the tractor had been recovered by the police from Khadim Hussain who had made statement before the police that he had purchased it from petitioner, Javed Arshad for a sum of Rs, 80,000 as per agreement dated 17-5-1980 and, therefore, tractor could not be given on Sapurdari to Javed Arshad.
7. The new application of Javed Arshad, Criminal Miscellaneous 94/84, for grant of interim custody of the said tractor is based on the fresh ground that on 15-12-1980, the point of time when the took the tractor into possession, Khadim Hussain had returned the tractor to him (Javed Arshad) and received back the sum of Rs, 40,000 the (present) price of the tractor from him (laved Arshad) and also executed agreement in his favour to the effect that he had received back the price of the tractor and had nothing to do with the said tractor now.
8. The application of U.B.L., Shah Abbas Branch is, however, based upon the circumstance that the said tractor had been purchased with the sum of money which had fraudulently been withdrawn by Imtiaz Ahmad from the said bank and had been misappropriated.
9. The plea of Khadim Hussain in his application, for grant of interim custody, of the said tractor is that he had purchased the said tractor for consideration from Javed Arshad who had got the same from Imtiaz Ahmad in exchange for his own tractor.
10. I have heard the arguments of Sb. Muhammad Islam counsel for Javed Arshad and Muhammad Sultan Alam counsel for the complainant (Shah Abbas Branch of U. B. L.) and of Khadim Hussain who addressed me in person.
11. The tractor in question was recovered by the police from the custody of Khadim Hussain. Khadirn Hussain has in his application, Criminal Miscellaneous No, 73/85, prayed for the interim custody of this tractor on the ground that it had been recovered from his possession. I have considered the plea raised by him. It is true that interim custody of the case property is normally given to the person from whom it has been seized by the police but this is not an inflexible rule and when factsA and circumstances of case warrant, the..Interim custody of the property can be given to another person too. For instance, as observed in case of U Ba Hlaing v. Bala Bux Sodani (1) if thief be caught with stolen property in his possession and the property is seized from him but thief himself succeeds in making good his escape, then an order under section 517-A, Cr. P. C. Cannot be passed directing the return of the property to the thief. Also when the person from whom property is seized admits or alleges that the property was left in his temporary custody by some other person, it cannot be returned to him and equally it cannot be returned if he admits that the property was found in bis premises but alleges that it was without his knowledge. Again in Ghulam Mani v. Muhammad Yousuf and another (2) wherein the High Court directed that vehicle (crime property) be kept in custody of the police till question of title is determined finally by a civil Court, it was held by their Lordships of the Supreme Court that the discretion had been properly exercised by the High Court. Thus their Lordships of the Supreme Court had upheld the order of the High Court refusing to give interim custody of the said case property to the person from whom it had been recovered. This Court is, therefore, not bound to give interim custody of this tractor to Khadim Hussain and shall have to look to the facts of the case to decide the matter.
12. However, the facts which should be taken into consideration at this stage for deciding these applications are such facts of the prosecution story as are supported by documents on record.
And in the process of determination of these applications, care and caution has to be observed that no definite finding is given regarding the culpability of the accused. According to the prosecution story as supported by documents on police record, it appears that the tractor in question had been purchased from the amount withdrawn from Shah Abbas Branch of the bank. It appears to me that in the present case, this is an indisputable fact; at least Khadim Hussain (and Javed Arshad) cannot dispute it. In actual fact also, they have not disputed it in their applications.
This is quite apart from the question of the guilt of the accused. In coming to the tentative finding at this stage, that the said tractor had been purchased with the money drawn from the bank, there is no inference of guilt against the accused
(I) AIR 1937 Rang. 42 (2)1972 SCMR 159 Imtiaz Ahmad at this stage at all. It may be that he was not the person who filed the loan application posing himself as Aftab Ahmad. It may be that he was not the person who withdrew the said money fraudulently and dishonestly as alleged. It, however, appears to me quite impossible for the applicants Khadim Hussain and Javed Arshad to deny with any show of reason that the tractor was not purchased with the money drawn from the bank. For the purposes of these applications, therefore, it appears to be tentatively proved that the tractor was purchased with the money drawn from the bank. In this state of 'affairs it would be unbearable to allow Khadim Hussain, from whose possession the said property had been recovered to retain it as against the bank with whose money it had been purchased. I have borrowed this reasoning from, and am fortified in this view of mine by the observation made in, A. K. R. A. Chettyar v. Ma Saw Ma (1) wherein it was held that when case property had been found to be stolen, it was intolerable to allow the person in whose possession said property is found, to retain it as against the real owner. I, therefore, reject the said application of Khadim Hussain for interim custody of the said tractor.
13. So far as Criminal Miscellaneous No, 94/85 flied by Javed Arshad is concerned, the previous application of Javed Arshad had been dismissed on 13.11-1984 on the ground that the tractor in question had been recovered from another person who claimed to have purchased it from him for a sum of Rs, 80,000 and had produced in that regard a deed dated 17-5-1980 and, therefore, the said tractor could not be given on Sapurdari to Javed Arshad who had sold it off and had no entitlement left to claim the same. No appeal or revision seems to have been filed against the said order. The said order, therefore, achieved finality. This Court has no power to review its order on same facts. The new plea raised in his fresh application, Criminal Miscellaneous No, 94/85, is also of no avail to the petitioner Javed Arshad. As Khadim Hussain has not in his own application for interim custody of the said tractor stated that he received a sum of Rs, 40,000 from Javed Arshad and 'returned the tractor to Javed Arshad. On the other hand he had tiled an application for interim custody of tractor on the basis of his having pUrchased it from Javed Arshad. He thus continues to claim title in this tractor, repudiating by implication, the alleged return by him of the said tractor, to Javed Arshad on receipt of its present price. Moreover, recovery of the said tractor had been made on 15-2-1980 and not on 15-12-1984 as alleged by Javed Arshad in his said application. The agreement whereby Khadim Hussain was allegedly paid Rs, 40,000 and whereby he surrendered interest in the said tractor appears to have been executed, later, on 13-6-1984. Any agreement entered between Khadim Hussain and Javed Arshad subsequent to the said recovery cannot be taken into consideration and does not affect the position of Javed Arshad for custody of the said movable property and for the purpose of the present application Javed Arshad continues to be transferee of the tractor from Imtiaz Ahmad and the dictum laid in A. K. R. A. Chettyar's case (supra) applies with full force to his case too. Judicial conscience has a revulsion against grant of interim custody of a tractor which has been purchased with money dishonestly and fraudulently drawn from a bank, to a transferee from original purchaser. Since the tractor appears to have been purchasedIc with the misappropriated sum fraudulently and dishonestly drawn from!
(I) AIR 1937 Rang. 450 the bank, its interim custody cannot be given to such a purchaser as against the bank with whose money the said tractor had been purchased.' In this connection I have to refer to Inayat Ullah v.
Muhammad Tufail and 2 others (1) wherein it was held that stolen property cannot be given on Sapurdari ,o a purchaser from thief pending the decision of the case. This dictum is applicable equally well to transferee by way of exchange of the property from a person who had originally purchased the tractor with the sum taken from the bank. Javed Arshad, therefore, cannot be given the said tractor in Sapurdari for that reason too. His application Criminal Miscellaneous 94/85 for interim custody of the tractor is, therefore, dismissed.
14. Now I take up the application of U.B.L., Shah Abbas Branch for interim custody of the said tractor.
From the facts on record it appears that out of the sum Rs, 67,000 drawn from the bank by way of agricultural loan sanctioned in favour of Aftab Ahmad, a sum of Rs, 60,000 in the shape of a demand draft had been sent to Mumtaz Ahmad, brother of the accused lmtiaz Ahmad who had purchased the said tractor and other accessories with the said sum. At least the facts found by investigating agency and documents now relied upon by the prosecution support the claim of the bank that it is the real owner of the tractor. In my opinion, therefore, the Manager of the Shah Abbas Branch UBL is entitled to interim custody of the tractor as it is the money of the bank with which it has been purchased. Since the bank has to recover money from Imtiaz Ahmad, the authorities of the bank would observe greater case to keep the tractor in good shape so that they can, by making sale of it, under the order of the Court get the best sale price, from which, they may make good the loss of the bank. Furthermore, if the said tractor is given either to Khadim Hussain or Javed Arshad, either of them shall strive to get the maximum work out of the tractor to make up the sum of money of his which is on stake and shall put the tractor to excessive use which would depreciate the value of the said tractor to an enormous extent while the bank if given the interim custody would keep the tractor unused in a godown in order to safeguard its own interest. I, therefore, accept the application of Shah Abbas Branch of the U.B.L. For the interim custody of the said tractor. The Manager of the said branch of the bank may get the tractor from the police subject to his furnishing security in the sum of Rs, 80,000 with one surety in the like amount to the satisfaction of S. H. 0 of concerned police station.