This is a revision petition by Mahmood Alam Khan, against the order of Mr. Sher Muhammad Maikan, Magistrate, Ist Class, Lahore, dated 13th July 1972 by which the application of the petitioner for superdari of the disputed car was dismissed and the earlier order dated Ist July, 1972, was maintained, by which the car was made over to Sakhawat Ali respondent No. 1 as superdari.
2. The facts giving rise to the petition are that a case with regard to the theft of Car No. LRA 4830, Toyota Corona, was registered under section 379 of the Pakistan Penal Code, at Police Station Lohari Gate, Lahore, on 4th June 1972, at the instance of one Mehraj Din. It was alleged by the complainant in the first information report that at the time of the occurrence, an attache-case containing jewellery and clothes, a licensed revolver and driving licence were in the car. The peti-- tioner was apprehended on 27th June, 1972, by Qila Gujar Singh Police and car No. KAN 1296 Toyota Corona, was taken into possession from him along with its registration book. Jewellery and the licensed revolver referred to above.
3. While the petitioner was in custody, Sakhawat Ali respondent No. 1 applied to the Illaqa Magistrate for superdari of the car in question claiming himself to be its owner. The learned Magistrate, without affording opportunity to the peti--tioner, handed over the car to him vide his order dated Ist July 1972. His order is to the following effect:-- "The police with record present. Papers perused. 'The receipt of the car is in the name of Sakhawat Ali, the insurance is also in. His name. The car is given on superdari to him to the satisfaction of the Investigating Officer. The pistol and the gold kara etc. To be given on superdari to the owner.
4. Mahmood Alam Khan petitioner was released on bail. He applied to the Ilaqa Magistrate (Mr. Sher Muhammad Maikan, Magistrate Ist Class, Lahore) for the cancellation of the order of superdari. Notice was issued to Sakhawat Ali respondent No.1. The parties were heard. The learned Magistrate found no reason to interfere with his previous order and hence dismissed the application.
5. It is against the last mentioned order of the learned Magistrate that the petitioner has come up in revision requesting that the superdari of respondent No. 1 be cancelled and the car in question be given to him till the disposal of the case.
6. The order of the Magistrate has been challenged on the grounds inter alia that the original order having been passed at the back of the petitioner without hearing him, is a nullity in law. In any case, it was Mehraj Din, who lodged the report with regard to the theft of car No. LRA 4830, Toyota Corona. Sakhawat Ali respondent No. 1, therefore, had no concern with it. He could not have claimed ownership of the car nor could he get it on superdari. Moreover, the car, which was taken into possession from the petitioner bore No. KAN 1296 and was pur--chased by him from Akbar Autos, Karachi, on 4th October, 1971, for an amount of Rs. 22,000. Transfer letter, receipt and delivery letter were in possession of the petitioner. It was further submitted that the Model of the disputed car, which is 1971, is different from the car recovered from the petitioner, which is 1970 Model. The petitioner being a bona fide purchaser of the car, which was recovered from him, the Magistrate has no alternative, but to give the same to him on superdari. He further alleged that the case against him was started with ulterior motive, inasmuch as, he had filed a private complaint against Chaudhry Zahoor-ud-Din, Station House Officer, Lohari Gate, Lahore, Head Constable Ghazanfar and a foot-constable. These persons had been summoned by the Assistant Commissioner, Lahore.
He further maintained that Head Constable Ghazanfar was posted at Police Station Qila Gujar Singh. The accused were insisting on him to withdraw his case and threatened him with dire consequences, if he did not do so. It was also pointed out by the petitioner that this very car was taken from him under the influence of Chaudhry Zahoor-ud-Din, by C. I. A. Staff, Lahore, on 15th October, 1971. The car remained with the police till 23rd October 1971, when after thorough investigation, it was returned to him under the orders of Mr. Rashid Ahmad, Magistrate Ist Class, Lahore.
7. The revision petition came up before my learned brothel Muhammad Afzal Cheema, J. On 18th July 1972. It was admitted. Notice was issued to the respondents. On a subsequent hearing, his Lordship summoned the relevant record from different agencies including C. I. A. Staff and Qila Gujar Single Police Thereafter, the petition cam up before me.
8. 1 heard the parties at length and for a number of days and dismissed the petition on 11th December 1972, for the reasons to be recorded later. I now proceed to record the reasons.
9. Many documents have been placed on record by both the parties in support of their cases.
However before dealing with the other contentions raised by the petitioner, I Would like to dispose of his first contention, which is to the effect that the initial order of superdari in favour of respondent No. 1, was passed behind his back and without hearing him and, therefore, it was a nullity in the eye of law and liable to be set aside on that ground alone.
10. Although section 523 of the Code of Criminal Procedure does not envisage giving of notice to an accused person still I am of the opinion that on general principles, an order of handing over property recovered from an accused to another person should not ordinarily be made without giving opportunity to the accused to place his case before the Court. The order passed behind the back of the petitioner may not amount to illegality in the sense that section 523 of the Code of Criminal Procedure, does not envisage giving of notice to him, yet it would certainly amount to' impropriety. However, this contention loses its force, when the petitioner applied to the Court to cancel its previous order and that application was dismissed after hearing both the parties. It is clear, therefore, that the petitioner was given an opportunity and was heard before his coming to this Court.
10-A. The petitioner's case is that the charge of theft of the car against him is false. He has enmity with the police on account of which, he has been unnecessarily dragged in as a thief. It is contended that a case of cheating with regard to a car was registered against the petitioner at Lohari Gate Police Station on 15th March 1971, under sections 406, 420, 342, 365 and 368 of the Pakistan Penal Code. The matter was compromised between the complainant and the petitioner.
This contention has been repelled vehemently. The position of the State is that the petitioner has been challaned in the aforesaid case. A chitin support of the aforesaid contention has been placed on record, which shows that the challan was submitted to Court on 14th April 1971.
11. However, it is common ground that the registration of the aforesaid case against the petitioner, led to his filing a complaint under sections 506, 500, 352 and 342 of the Pakistan Penal Code against Sub-Inspector Chaudhary Zahoor-ud-Din, Station House Officer, Lohari Gate, Lahore, and Head Constable Ghazanfar Ali etc. These persona have been summoned by the Assistant Commissioner, Lahore, and the case is pending against them.
12. It was next alleged by the petitioner that in view of aforesaid enmity, C.I.A. Staff, Lahore recovered cat No. KAN 1296, Toyota Corona, from him a the instance of Chaudhry Zahoor-ud-Din, in connection with First Information Report No. 316 registered at Gowalmandi To1ice Station on 29 August 1971. He applied to the Court and the car was returned to him on 23rd October 1971, by the order of Shaikh Rashid Ahmad, Magistrate, Ist Class, Lahore. With regard to this assertion, the State's position is that the car was taken into possession as suspected stolen property under section 550 of the Code of Criminal Procedure, and was subsequently returned to the petitioner under the orders of the Magistrate, when he produc--ed its registration book and receipt by means of which, he had purchased it. It is, however, added that the case has not been registered against the petitioner, at the instance of Chaudhary Zahoor-ud-Din.
13. The petitioner further alleged that aforesaid Sub---Inspector Chaudhary Zahoor-ud-Din sent Munir Ahmad Butt and Muhammad Siddique to his house asking him to withdraw the complaint against him. This led to an altercation and a real brother of the petitioner was injured by gun fire and as a result, First Information Report No. 83, under section 307 of the Pakistan Penal Code was registered at North Cantt Police Station, on 31st May 1972. The local police was so much interested in Chaudhary Zahoor-ud-Din that it did not apprehend the culprits. Thereafter, the petitioner had to move Senior Police Officers and the Deputy Inspector-General of Police directed the Deputy Superintendent of Police, North Cantt to appear before him on 29th June 1972, along with the relevant record of the case. However, two days earlier to it, on the night between 26th and 27th June 1972, Chaudhary Zahoor-ud-Din visited his house at 2-30 a.m. And apprehended him. It was on 29th June 1972, that he was put under arrest in the present case. The car was taken into possession from his garage and the case was got registered against him at Lohari Gate Police Station.
14. The version of the respondent, however, is that the disputed car was got registered at Lyallpur by the petitioner under the assumed name of M. Iqbal Ashraf Khan on 29th November 1971, and was given number LRA-4830. The chassis No. Viz. RT-80-023779 and Engine No. 2R-1399147 is exactly the chassis and engine numbers of the car bearing No. KAN 1296, which was decidedly the property of the petitioner. The only difference being that according to the petitioner, his car is 1970 Model, whereas, the Model of the car sold by M. Iqbal Ashraf Khan is 1971. The registration book of the latter car was shown to me. There seems to be an interpolation in the Model of the car. In any case, it will be for the trial Court to determine, as to how, a car bearing chassis and engine number of the car of the petitioner was sold by one M. Iqbal Ashraf Khan, and whether, that person is at all it existence.
With respect to this aspect of the case, I might also deal with another assertion of the petitioner. He claimed to be dealer in cars with his office situated at 13-A, Shah Alam Market Lahore, under the, name and style of M. Alam & Company He has a telephone at his office bearing No. 53815. In orderth to verify this aspect of his assertion, a ring was given at the aforesaid number and in response to it, one Shaikh Muhammad Amin spoke from Assafar Trading Corporation, situated at 3-A, Shah Alarm Market, Lahore. He, however, stated that the owner of the Company was the petitioner.
15. Learned counsel for the petitioner, asserted at this stage that the petitioner had never lived in house No. 331-D/S, in Peoples Colony, Lyallpur, and in fact, that was the office of the C.
1. A. Staff, Lyallpur, since the year 1970. Superintendent of Police, Lyallpur was contacted by Chaudhary Muhammad Sadiq, D. S. P., who was assisting the State counsel, with a view to verify this fact and the reply, which has been placed on record, is to the effect that:--- "It is certified that building No. 331-D/S owned by one Qamar Umar son of Muhammad Umar, Kothi No. 10-A, Peoples Colony, is occupied by C. I. A. Staff, Lyallpur, since 19th January 1972."
It shows, therefore, that at the time of the registration of car No. LRA-4830, in the name of M. Iqbal Ashraf Khan, the latter was living in house No. 331-D/S, Peoples Colony, Lyallpur, and it was not occupied by the C. I. A. Staff. It will not be out of place to mention here that this very car was got registered at Sheikhupura, on 4th November 1971, and was given No. SA-2960 at the instance of M.
Iqbal Ashraf Khan, who gave his address as "Care of Kohi-Noor Mills Ltd., G. T. Road, Muridke, District Sheikhupura." A photostat copy of the application for registration is on record.
16. A car bearing the same engine and chassis number was sold, according to the respondent, by the petitioner under the assumed name of M. Iqbal Ashraf Khan at Lyallpur, for an amount of Rs.
22,000 to respondent No. 1 on 3rd December 1971, and was duly registered in Sakhawat Ali's name. A photostat copy of the sale receipt is do record. It was, however, stolen from the possession of one Mehraj Din of Lyallpur, on 4th June 1972, when it was parked by him near the Chowk of Rang Mahal, at Lahore, the latter himself having gone to Azam Cloth Market. He promptly lodged report of the theft at Lohari Gate Police Station on the same day. It was, as has been indicated above, subsequently recovered from the possession of the petitioner on 29th June 1972.
17. Undoubtedly, Car No. KAN 1296 was the property of the petitioner having been purchased by him from one Abdur Rehman of Karachi through Akbar Autos. The question would be whether he sold it to Mehraj Din or Sakhawat Ali under the assumed name of M. Iqbal Ashraf Khan, as is the prosecution case. This would again raise two questions, as to what connec--tion has Mehraj Din with Sakhawat Ali, as the case about the theft of tile car was registered at the instance of Mehraj Din and he claimed to be its owner. It was pointed out to me during the course of arguments, that Salthawat Ali And Mehraj Din sire partners in business, in the sense that the latter's wife is a shareholder with Sakhawat Ali in a concern known as "Aziz Calico Works, Lyallpur". In actual practice, Mehraj Din carries on business on behalf of his wife and is thus a partner with Sakhawat Ali respondent No. 1. It is also asserted that car is the property, though registered in the name of Sakhawat Ali, of the aforesaid concern "Aziz Calico Work, Lyallpur." Anyhow, this is one of the questions, which would be gone into by the trial Court, to determine, whether this assertion is correct. Turn--ing to the second question, whether M. Iqbal Ashraf Khan is the same person as the petitioner, I would like to refrain from giving a clear finding, but would certainly, point out that there seems to be some force in the prosecution version, unless rebutted by the petitioner, that in fact, there is no person by the name of M. Iqbal Ashraf Khan and this is the assumed name of the petitioner, under which, he had hired a house in Lyallpur. It is needless to repeat, that a car definitely owned by the petitioner, having been bought by him in Karachi, was got registered by M.
Iqbal Ashraf Khan, both in Lyallpur and in Sheikhupura. The prosecution has collected evidence to the effect, from the Registration Offices that M. Iqbal Ashraf Khan is no other person than the petitioner. This by itself may not be sufficient to establish the identity of the person, who sold the car to Sakhawat Ali respondent No. 1. However, it cannot be denied that it was the car of the petitioner, which was registered at two other places, viz. Lyallpur and Sheikhupura. This is not all. At the instance of M. Iqbal Ashraf Khan, a Vespa Scooter of 1972 Model was registered with the Registration Authority at Sheikhupura, in the month of June 1972, he having bought it from Cosmos Traders, Lahore, on 12th May 1972. This very Scooter, as would be evident from photostat copies of the documents placed on record, was sold by M. Iqbal Ashraf Khan shortly after its registration to M.
A. Khan son of Mahboob A. Khan, on 27th June 1972. The prosecution case is that M. A. Khan is no other than the petitioner. This fact also has to be established by the prosecution. However, it does give an indication that the petitioner knows, who M. Iqbal Ashraf Khan is, if he is in existence at all.
The recovery of the car from the petitioner, though under a different registration number, is not denied. Thus, the main question to be determined for the purpose of this revision petition would-be, as to who is best entitled to be given the superdari of the car and whether the order of the Magistrate in this respect, is open to objection.
18. Ordinarily, the property must be returned by the Court to a person from whose custody it has been taken, unless there are indications to the contrary, that it did not belong t him. From a resume of the facts stated above, it is prima facie clear that the very car, which was recovered from the petitioner, had been sold to respondent No. 1, for a consideration under the assumed name of M.
Iqbal Ashraf Khan. Therefore I am of the opinion that there are strong indications which go to show that the disputed car did not belong to the petitions on the day it was recovered from him.
19. Reverting to the identity of M. Iqbal Ashraf Khan, I would refer to the evidence collected by the prosecution, which goes to show that it was actually the petitioner, who had assumed this name, The prosecution has examined the witnesses in whose presence the car was sold by the petitioner, to respondent No. 1. They have deposed before the police during the investigation, that it was the petitioner, who under the assumed name of M. Iqbal Ashraf Khan sold the canto the said respondent. There is also evidence from the Registration Offices of Lyallpur and Sheikhupura, that it was the petitioner, who under the assumed name of M. Iqbal Ashraf Khan got the car registered at respective Registration Offices. Last but not the least is the fact that Vespa Scooter registered in the name of M. Iqbal Ashraf Khan was transferred a few days thereafter in the name of the petitioner. I must, however, add, that I am by no means giving a final verdict with regard to the case pending against the petitioner. It will be for the trial Court to determine on the evidence led before it. For the time being, and during the pendency of the trial, I am of the opinion that Sakhawat Ali respondent No. I is the most suitable person to whom the car should have been given on superdari as has been done by the Magistrate. I find no force in the revision petition and the same is hereby dismissed.