1. The facts of this case as appears from the record and according to the learned counsel for the parties, briefly stated, are that at 0-30 hours on 23-9-1971, Ali Mukhtar Naqvl, the respondent No. 2 lodged F. I. R. with Nazimabad Police Station, Karachi stating that one Falak Sher, who was known to him purchased a Datsun-taxi, number unknown, on instalments, from a party and paid total sum of Rs. 12,000, but in spite of demands he was not given receipts, and he apprehended that the person, from whom he had purchased the taxi, would forcibly take it away, and therefore, he parked the taxi in front of complainant's house and gave the complainant the key of the taxi.
2. At 5 p.m. that day four persons came to his house in his absence and took away the taxi, and he came to know of this from his children at 11-43 p.m. and, therefore, came to report the crime.
3. The next step that appears from the record in connection with the case, is that the S. H. O., Nazimabad Police Station, recorded a note in the diary to the effect that the taxi had beer produced by the petitioner Syed Hisamuddin, and according tc him Falak Sher had taken taxi on instalments basis of Rs. 1,000.01 per month, but had failed to pay the instalments, and the owner therefore, took possession of his property. In this report it i stated that one Muhammad Ali was the owner of the taxi Recording to the Registration papers, and Nizamuddin petitione was, therefore, not entitled to the possession of the taxi. Subsequently, on the application of Ali Mukhtar Naqvi, the Additional City Magistrate Court No. XXXL Karachi, handed over the taxi to him by the order dated 29-9-1971, which reads :-- "Heard P. S. I and the Advocate for the complainant. The car was stolen from the possession of the complainant. The car was recovered from a Petrol Pump. The car may be damaged due to non- use. This is without prejudice to the merits of the case without determining the title of the taxi in supardginama, I am satisfied that it will be in the interest of justice if the car/ Taxi No. KAX-4279 is handed over to the complainant, Mr. A. M. Naqvi, on his executing a bond in the sum of Rs. 25,103.00 that he will produce the same on which date of hearing in Court or as and when required by the Court. This order is passed under section 516-A, Cr. P. C. till the disposal of the case."
4. It is against this order that the petitioner has filed this Revision Application under section 439 read with section 561-A, Cr. P. C.
5. It is asserted by the petitioner that he purchased the taxi in question being No. KAX-4279 for Rs.
6. 22,000.00 under sale agreement dated 19-8-1971, photostat copy whereof is Annexure "A".
7. Subsequently, the taxi was registered in his name on 4th October 1971, and the permit was also issued in his favour by the Regional Transport Authority. These assertions are supported by the photostat copies of the relevant documents produced as Annexures B and C, which have not been challenged. The petitioner has also produced the report of the S. H. O. Nazimabad Police Station, Karachi, dated 10-11-1971, to the Court of Additional City Magistrate No. III, that the case filed by the respondent No. 2 will be reported under section 168, Cr. P. C. as during the course of investigation it has been established that Hisamuddin son of Syed Muhammad Sharif is the lawful owner of the Taxi No. KAX-4278.
8. It was on the basis of these facts that the learned counsel for the petitioner vehemently urged that the petitioner being the lawful owner of the taxi, is entitled to possession thereof in preference to the respondent No. 2, Ali Mukhtar Naqvi, who has no ostensible claim on it.
9. After the learned counsel for the respondent No. 2 addressed > arguments the respondent No. 2 prayed for hearing in person. , ' He vehemently contended that Falak Sher was known to him 7/ personally for long time, and it was also within his personal knowledge that Falak Sher had purchased the taxi on instalment j basis and paid Rs. 12,000 and, in the circumstances, he urged that Falak Sher should not be wrongfully deprived of the taxi. He further contended that even the owner can be held responsible for theft of his own property, and in the circumstances that the owner of the taxi is facing a charge of theft, the vehicle should not have been handed over to him.
10. It is the admitted position of the parties that the terms and|s conditions on which Falak Sher purchased the taxi from thej petitioner Hisamuddin were not recorded in writing. It cannot, therefore, be said at this stage of the case that on 23rd September 1971, when the report was lodged with the police, Falak Sher had become owner of the taxi. In any case, so far Falak Sher is concerned he has not even applied for the possession of the taxi. It is further clear that the respondent No. 2, Ali Mukhtar Naqvi, has not even ostensible claim to the possession of the taxi in question.
11. On the facts disclosed, therefore, the petitioner appears to be the owner of the taxi, and 1 do not see any valid justification for withholding the possession of the property from him. It further appears that full payment of the taxi was not paid by Falak Sher, and whether on the facts of the case the petitioner was entitled to take possession of the taxi, is a matter which is yet to be examined and determined by a Court of law, if and when the case is challaned.
12. While, granting petitioner's request for possession of the taxi, I would at the same time like to safeguard the interest of the other claimants. I therefore direct that on petitioner furnishing a bank guarantee in the sum of Rs. 15,000 to the satisfaction of the Nazir of the Court, the possession of the taxi shall be handed over to him. The amount of the bank guarantee shall be payable in terms of the decision of the Magistrate before whom criminal proceedings will come up for disposal according to law.
13. The result is that this revision application succeeds, and the impugned order of the learned Additional City Magistrate, Karachi, dated 29th September 1971, is set aside. .