1. This is an application under sections 435, 439 and 561-A of t e Criminal Procedure Code, praying for setting aside the order passed by the Additional Sessions Judge, Karachi, confirming the order passed by the S. D. M. Mr. Merchant, handing over the possession of the truck which is the subject- matter of the crime, to the respondent Inayatullah, who had filed a report against one Lutufur Rehman for having committed an offence punishable under section 420, P. P. C. In respect of the said truck.
2. The facts leading to this revision application, briefly stated are these: - The respondent purchased the truck In question from Ali Automobiles on 18th January 1955, in the name of his son-in-law Abdul Majid. On 4th July 1958, the respondent entered into an agreement with Lutufur Rehman, the terms of the said agreement being that Lutufur Rehman would ply the truck on hire and in consideration for that, he would pay Rs. 40 per day to the respondent. It is the case of the applicant that Abdul Majid sold this truck to one Aziz Jawed on 13th October 1959. On the same day both Aziz Jawed and Abdul Majid wrote letters to the police, the former showing that he had purchased the truck from the latter and the latter showing that he had sold it to the former.
3. Subsequently on 16th October 1959. Aziz Jawed sold the truck to the applicant Zahoor-ud-Din. The registration certificate which was sent to the police for mutation of names was received back by the applicant on 12th March 1960. It contained the necessary entries. On 13th July 1960, the respondent lodged a report with the police. Complaining that Lutufur Rehman had committed an offence under section 420 in respect of the truck. During the course of the investigation, the Malice seized this truck from the possession of the applicant. On 19th July 1960, the respondent applied to the Court for the, possession of the truck. The applicant also moved the Court to diver the possession of the truck to him as it had been covered from him. The Court, passed orders on these applications on 1August 1960, delivering the- truck to the respondent.
4. Dissatisfied with this order, the applicant filed a revision application in the Sessions Court. This was heard by the Additional Sessions Judge, Mr. A. H. Kureishy, who rejected the same. It is against that order that the present application has been field.
5. I have heard the learned counsel on either side and A. A: G. For the State. The latter supports the petition.
6. The order passed by Mr. Merchant does not show under Section 516-A which is the first section in this chapter provides 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 fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy or natural decay may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of."
7. In this case there was no enquiry or trial pending in the Court of Mr. Merchant when the respondent made the application for the delivery of the truck. This section provides for the proper custody of the property regarding which any offence appears to have been committed, pending the conclusion of the inquiry or trial before a Court. This truck was produced before the Court by the police in pursuance of the orders passed by it on -the application filed by the respondent. At that time, the report of the respondent was still under investigation by the police: This section therefore will not apply to the facts of this case. Section 517, which follows the above section deals with those cases in which a criminal Court on the conclusion of the inquiry or trial before it has to pass an order for the disposal or delivery of the property the subject-matter of the crime, to any person claiming to be entitled to possession thereof. This section will also not apply as the order regarding the property was not passed on the conclusion of any inquiry or trial. The next section under this chapter is section 523. This section, in my opinion, will also not apply. It requires the police officer who seizes the property under section 51, Cr. P. C. Or when the property is alleged or suspected to be stolen or when the property is found under the circumstances which create suspicion of the commission of any offence, to forthwith report to a Magistrate who shall make such order as .He thinks fit respecting the disposal of such property or delivery of such property to the person entitled to the possession thereof. In this case there is no allegation that the truck was stolen property, nor was it suspected to have been stolen. Resides, there was no report before the learned Magistrate in respect of this truck on account of which he could be said to have been called upon under section 523, Cr. P. C- to make an order in respect of the disposal of the same. It was on the application of the respondent that the learned Magistrate ordered that the truck should be delivered to him. The Court acquires jurisdiction under section 523 only when the police makes a report to it. In this case there was no report by the police. Besides, it is not the case of the prosecution that the property was seized under section 51, Cr. P. C. It is therefore doubtful whether the provisions of section 523 will apply to the facts of this case. But even if the provisions of section 523 did apply, the order passed by Mr. Merchant cannot possibly be maintained. Under sec--tion 523(1) the Court has to deliver the property to the person; entitled to the possession thereof. The learned Magistrate has ignored the question of possession and has proceeded to pass to --order can the basis of ownership which question only the civil Courts arc empowered to go into. 'The operative part of his order is to this effect: --- "From preliminary inquiry I am satisfied that the truck No. KAP-4373 lying at, the Police Station belongs to Mr. Inayatullah Khan.
8. I therefore order its return to him immediately on `Superd-ginama'."st This order is based on the statement of the respondent and of his son-in-law Abdul Majid. Their evidence, it appears from the order, was given in respect of the ownership of the truck. Not a word ha~ been said in respect of the possession of the truck at the time it was seized. There was an application of the applicant before Mr. Merchant for the restoration of the truck in which he had based his case on the ground that he had purchased the same from Aziz Jawed who had purchased it from Abdul Majid in whose name it stood in the register and that it was recovered by the police when it was in his possession. The learned Magistrate without recording the statement of applicant or of any of his witnesses in support of the application, rejected it, merely stating in the order that he had already passed an order on the application of the respondent.
9. The admitted position is that this truck at the time of the seizure was in possession of the applicant, who has stated that he had purchased the truck from Aziz Jawed who had purchased the same from Abdul Majid. Both Abdul Majid and Aziz Jawed had sent letters to the police for making necessary entries in th6 registration certificate. Right from 13th October 1959 till the tine of rise seizure of the truck, it was in the possession of the applicant. Normally the property seized, has to be gives the person from whose possession it was taken, unless there are special reasons for doing otherwise. The order of Mr. Merchant does not mention those special reasons.
10. The Additional Sessions Judge has passed the order on the ground not mentioned by Mr..
11. Merchant; against whose order the revision application was filed, The Additional Sessions Judge, in examination of the registration certificate, has become of the view that the letter purporting to bear the signature of Aziz Jawed, which was sent to the police, is a forged document, For this conclusion, he had, in my opinion, no material. He has neither examined Aziz Jawed nor an expert, nor has he compared this signature with any admitted signature of Aziz Jawed. In fact this point was not at issue before him. The simple question that was before him was whether the order passed by Mr. Merchant on the basis of ownership was justified, I have already held that that order is not justified.
12. Upon this view of the matter, I hold that the applicant, from whose possession the truck was seized was the person entitled to the possession of the same. I therefore direct that the truck should be delivered to him pending the investigation in respect of the offence alleged to have been committed by Lutufur Rehman in connection with this truck. At the conclusion of inquiry or trial it will be open to the trial Court to pass any order regarding the disposal of the truck in question.