These are two connected criminal revisions, Criminal Revision No. 747 of 1971, filed by Haji Muhammad Jamal Khan son of Haji Kaloo Khan,resident of Jhock Bhodo, Tehsil Taunsa, District Dera Ghazi Khan, and Criminal Revision No. 770 of 1971, filed by Hamid Ullah Khan son of Abdullah Khan, resident of Kotla Geedar, Tehsil Lakki Marwat, District Bannu, for the quashment of the order of the Assistant Commissioner (M. I. C.), Kot Addu, District Muzaffargarh, dated the 12th of July 1971, passed under section 516-A, Cr. P. C. in respect of the dispute relating to the custody of a truck. Both the petitioners have impleaded each other also as respondents in their respective criminal revisions. As both the petitions are directed against the same order, they are being disposed of together.
2. The facts of the case as stated by Haji Muhammad Jamal Khan petitioner are that Truck No. BU- 1629, originally stands registered in the name of Hamidullah Khan petitioner. Hamidullah Khan petitioner sold this truck to one Baseerullah and Baseerullah sold it further to Rab Nawaz and Haji Muhammad Jamal Khan petitioner. In April 1971 the said Rab Nawaz surrendered his share and liability in Truck No. BU-1629, in favour of Haji Muhammad Jamal Khan petitioner. As a result Haji Muhammad Jamal Khan petitioner was operating the said truck through his driver Habibullah.
3. On the 19th of April 1971, the Police of Muzaffargarh District seized Truck No. BU-1629 in connection with a case under section 304-A, P. P. C. registered againstHabibullah driver. The truck was recovered from the possession of Habibullah driver who as per the police record before this Court, had admitted before the police that he was working as a driver of Haji Muhammad Jamal Khan petitioner.
4. On the end of April 1971, on an application filed by Haji Muhammad Jamal Khan petitioner, in the Court of the Assistant Commissioner, Kot Addu, District Muzaffargarh, the said truck was given under the superdari of Haji Muhammad Jamal Khan petitioner on the security bond of one Sadiq, a relative of Haji Muhammad Jamal Khan, petitioner.
5. While the said truck was being plied by Haji Muhammad Jamal Khan petitioner, it was stolen on the night between the 9th and 10th May 1971. An F. I. R. in respect of the theft of the said truck under section 379, P. P. C. was lodged at the instance of Haji Muhammad Jamal Khan petitioner at Police Station Sardar, D.G. Khan. In the said F. I. R. it was alleged that Truck No. BU-1629 was stolen from the custody of Haji Muhammad Jamal Khan petitioner by Baseerullah and others. On the 9th of June 1971, the said truck was recovered by the police from the possession of Baseerullah and Karim Khan.
6. Subsequently on the 14th of June 1971, the Magistrate 1st Class, D. G. Khan, gave the custody of the said truck on superdari , to Haji Muhammad Jamal Khan petitioner on the ground that he was the last person in possession of the said truck. It is stated by the learned counsel for Haji Muhammad Jamal Khan petitioner that uptil this stage Hamidullah Khan petitioner was neither in picture nor an aggrieved party.
7. The learned counsel for Haji Muhammad Jamal Khan petitioner contends that Hamidullah Khan petitioner for the first time moved an application for the grant of the custody of the said truck on superdari to him before the Assistant Commissioner, Kot Addu on the 23rd of June 1971. It is further contended that Hamidullah Khan petitioner did not move the Court of the Magistrate 1st Class, D. G.
Khan under whose previous order dated the 14th of June 1971, the truck was given under the superdari of Haji Muhammad Jamal Khan petitioner. The learned Assistant Commissioner, Kot Addu, on the 26th of June 1971, ordered that proceedings be initiated against Sadiq under section 409, P. P. C. as the said Sadiq had entered appearance without bringing Truck No. BY-1629 with him.
However Haji Muhammad Jamal Khan petitioner produced the said truck in the Court of the Assistant Commissioner, Kot Addu, on the 28th of June 1971, whereupon the Assistant Commissioner, Kot Addu, vide his order dated the 28th of June 1971, handed over the custody of the said truck of the police.
8. Subsequently Haji Muhammad Jamal petitioner moved an application in the Court of the Assistant Commissioner, Kot Addu, on the 30th of June 1971, for the restoration of the custody of the said truck to him on superdari as he was the last person in possession of the same. This application was dismissed vide order dated the 30th of June 1971, of the Assistant Commissioner, Kot Addu, on the ground that since the ownership and title of the truck in question was disputed it would not be advisable to release it on superdari. It was, therefore, ordered that the said truck should be kept at Police Station Dera Din Panah. It was further ordered that Haji Muhammad Jamal Khan petitioner could seal the steering of the said truckif he so desired.
9. Haji Muhammad Jamal Khan petitioner filed another application for the grant of superdari of the said truck in his favour on the 7th of July 1971, but vide order dated the 12th of July 1971, of the Assistant Commissioner, Kot Addu, it met the same fate. Haji Muhammad Jamal Khan petitioner lias chal lenged this order and prays for its quashment.
"10. Hamidullah Khan petitioner, on the other hand, claims the custody of the truck in dispute on different grounds. The learned counsel for Hamidullah Khan petitioner contends that the registration of the said truck stands in his name; that the route permit granted by the Transport Authority on which the said truck operated was also in his name; that the truck in question was misappropriated from Hamidullah Khan petitioner by Haji Muhammad Jamal Khan petitioner; that under section 410, P. P.
C. the possession of the said truck by Haji Muhammad Jamal Khan petitioner amounted to a criminal misappropriation as Hamidullah Khan petitioner was legally entitled to its possession; that Haji Muhammad Jamal Khan petitioner had no proof by which he could show his entitlement to the possession of the disputed truck in his own right and finally that Habib Ullah driver was employed by Hamidullah Khan petitioner for operating the said truck but since Habibullah driver was a relative of Haji Muhammad Jamal Khan petitioner, he stated to the police that he was operating the disputed truck as an employee and driver of Haji Muhammad Jamal Khan petitioner. On these grounds Hamidullah Khan petitioner claims that the custody of the truck in question on superdari should have been granted to him. It is urged that he filed an application on the 6th of July 1971, for the release of his truck on superdari to him but the learned Assistant Commissioner vide his order dated the 12th of July 1971, refused to deliver the said truck to Hamidullah Khan petitioner and ordered that it should remain in the custody of the police. He therefore, prays that the order of the Assistant Commissioner dated the 12th of July 1971, be quashed and the truck in question should be released on superdari in his favour.
11. The question which requires determination is what are the powers of the Assistant Commissioner (M. I. C.), Kot Addu, in respect of the disposal of the truck in dispute under section 516-A, Cr. P. C.
Section 516-A, Cr. P. C. reads as under:-- "When any property regarding which any offence appears to have been committed or which appears to have been used for the commission of any offence, is produced before any criminal Court during any inquiry or trial, the Court may make such order as it thinks lit for the proper custody of such property pending the conclusion of the inquiry or trial, etc."
12. In the present case the matter which is pending before the Assistant Commissioner is the case under section 304-A, P. P. C. against Habibullah driver. No offence appears to have been committed regarding the truck in question although it may be stated that the truck was being used when the offence alleged against Habib Ullah driver was committed by him. However, Haji Muhammad Jamal Khan petitioner who had the possession of the disputed truck had not done anything to advance the commission of the said offence. If the prosecution succeeds to establish a case against Habibullah driver under section 304-A, P. P. C., the law does not contemplate confiscation of Truck No. BU-1629 involved in the offence. It is a sound proposition of law that if no offence is proved in respect of seized property, it should be handed over to the person from whose possession it was seized. The truck in question was seized by the police during the investigation of an offence against Habibullah driver. At that time it was in physical possession of Habibullah driver, who was operating the same as an employee of Haji Muhammad Jamal Khan petitioner. In other words, his possession of the disputed truck was in his capacity as a servant of Haji Muhammad Jamal Khan petitioner. Hence for the purposes of section 516-A, Cr. P. C. the physical possession of the disputed truck was of Haji Muhammad Jamal Khan petitioner, notwithstanding any dispute between him and Hamidullah Khan petitioner regarding the title or ownership of the truck in dispute. It was for this reason that the said truck was released on superdari in favour of Haji Muhammad Jamal Khan petitioner by the Assistant Commissioner, Kot Addu, on the 22nd of April 1971. Subsequently when the said truck was stolen from the possession of Haji Muhammad Jamal Khan petitioner, it was he who had lodged the report with the police, and when the said truck was recovered by the police from the possession of Baseerullah and Karim Khan, its custody was again restored in favour of Haji Muhammad Jamal Khan petitioner by the Magistrate 1st Class, D. G. Khan, on the 14th of June 1971, on the ground that he was the person last in possession of the disputed truck.
13. Learned counsel for Haji Muhammad Jamal Khan petitioner urges that Haji Muhammad Jamal Khan petitioner alone was in physical possession of the truck in dispute and, herefore, under both sections 516-A and 523, Cr. P. C., he custody of the truck in question should have been riven to him.
He places reliance on Central Co-operative Bank imited, Sargodha v. Ahmacl Bakhsh (1), Miss Zarina Khan v. The tote (2) and Ch. Muhammad Farooq v. The State and another (3).
14. The learned counsel for Haji Muhammad Jamal Khan jetitioner also urges that the truck in dispute cannot be said to ave been used by Habibullah driver for the commission of an ffence under section 304-A, P. P. C. and therefore, cannot be etained under police custody, as ordered by the Assistant ommissioner, Kot Addu, pending the conclusion of the trial of abibullah driver, for this contention he places reliance on Phulu ingh v. Emperor (4).
15. Mr. M. A. Bajwa, Advocate, learned counsel for amidullah Khan petitioner, on the other hand, argues that the uck in dispute stands registered in the name of Hamidullah Khan litioncr in whose favour a route permit has also been issued by e Transport Authority for operating the same. He urges that wner" as defined under section 2(24) of the West Pakistan Motor hide Ordinance, 1965, means the person in whose name a vehicle registered. He further argues that Habibullah driver was tually the employee of Hamidullah Khan petitioner and crated the said truck in his capacity as the servant of midullah Khan petitioner. Habibullah driver told the lice that he was an employee of Haji Muhammad Jamal au petitioner only in order to favour Haji Muhammad tal Khan petitioner as he was his relative. According to him
(4) AIR 1931 Lah. 565 Haji Muhammad Jamal Khan petitioner had no proof by which he could show his entitlement to the possession of thetruck in dispute, and therefore, his claim in respect of the possession of the said truck is illegal as it amounts to a criminal misappropriation of the same. The learned counsel for Hamidullah Khan petitioner urges that since Hamidullah Khan petitioner was the only legal owner of the truck, the Assistant Commissioner, Kot Addu, should have released the truck on superdari to him. He placed reliance on Muhammad Asghar v. The State and another (1).
16. It is further contended by the learned counsel for Hamidullah Khan petitioner that the revision filed by Haji Muhammad Jamal Khan petitioner against the order dated the 12th of July 1971, of the Assistant Commissioner, Kot Addu, was not competent. He points that the release of the said truck on superdari to him was refused by the Assistant Commissioner, Kot Addu, vide his order dated the 20th of June 1971. But Haji Muhammad Jamal Khan petitioner liled another application on the 7th of July 1971, before the Assistant Commissioner, Kot Addu, for the release on superdari of the said truck which amounted to a review of the order passed by the same Assistant Commissioner on the 30th of June 1971, although no review was competent. The learned counsel argues that the orders passed by the Assistant Commissioner, Kot Addu, dated the 22nd of April 1971, and by the Magistrate 1st Class, D. G. Khan, dated the 14th of June 1971, releasing the truck in question on superdari to Haji Muhammad Jamal Khan petitioner were illegal because Hamidullah Khan petitioner had no knowledge or notice of the same and these were passed ex parte.
17. According to the police record which is before me, the truck in question was seized by the police from the posssssi on of Habibullah driver who had told the police that he was operating the said truck as a servant of Haji Muhammad Jamal Khan petitioner. The contention of Hamidullah Khan petitioner that Habibullah driver was his employee is not supported by any evidence on record.
Learned counsel appearing on behalf of Haji Muhammad Jatnal Khan petitioner has also placed a photostat copy of an agreement dated the 1st of April 1971, on the record to the effect that Haji Muhammad Jamal Khan petitioner had purchased the said truck from Rab Nawaz Khan and the payment of price was to be made on instalment basis. The registration of the said truck stands in the name of Hamidullah Khan petitioner. Under section 2(24) (c) of the West Pakistan Motor Vehicle Ordinance, 1965, "owner" means the person in whose name the vehicle is registered or the person in possession- of the vehicle under a higher purchases agreement. However, for the purpose of section 516-A and section 523, Cr. P. C. the (ruck in question is to be restored to the person from whom it was taken. In the present case, the said truck was recovered front the possession of Habibullah driver who was the employee of Haji Muhammad Jamal Khan petitioner, therefore, the possession at that time of the disputed truck was of Haji Muhammad Jamal Khan [3] petitioner. It was precisely for this reason that the said truck was released on superdari to Haji Muhammad Jamal Khan petitioner by the order dated the 22nd of April 1971, of the Assistant Commissioner, Kot Addu, and again by the order dated the 14th of June 1971, of the ' Magistrare 1st Class, D. G. Khan. In the circumstances, the Assistant Commissioner, Kot Addu, had no jurisdiction to nullify the earlierorders of the- Assistant ^Commis sioner, Kot Addu, as well as the Magistrate 1st Class, D. G. Khan, which had been passed in favour of Haji Muhammad Jamal Khan petitioner and also he had no jurisdiction to hand over the custody of the truck to the police. If there is any dispute in regard to the ownership or title of the truck in question between Haji Muhammad Jamal Khan petitioner and Hamidullah {Khan petitioner, the alfected party can get this question resolvedjjn the civil Court. But the dispute regarding the ownership or title of the truck in dispute is not a ground for not releasing the truck in question on superdari to the person who was last in possession of the same and handing over the custody of the said truck to the police for the reason that if conviction results under section 304 (A), P. P. C., the said truck may be confiscated by the State. Hence the impugned orders of the Assistant Commissioner, Kot Addu, withholding the custody of the disputed truck to Haji Muhammad Jamal Khan petitioner, the last person in possession of the same and handing it over to the police is entirely unjustified. I, therefore, set aside the order of the Assistant Commissioner, Kot Addu, dated the 12th of July 1971. This Court vide order dated the 26th of July 1971, has already granted interim custody of the disputed truck on superdari to Haji Muhammad Jamal Khan petitioner on the condition that he furnishes a security in the sum of Rs. 50,000.00 to the satisfaction of the Assistant Commissioner, Kot Addu. It was also ordered by this Court that before handing over the possession of the said truck to Haji Muhammad Jamal Khan petitioner, the police must prepare an inventory of the machinery and other accessories of Truck No. BU-1629. This order is confirmed.
1 8. The result is that the petition of Haji Muhammad Jamal Khan petitioner is accepted whereas the petition of Hamidullah Khan petitioner is rejected. .