Javaid Akbar son of Muhammad Akbar, resident of 125-B, Model Town, Lahore, has challenged the order dated the 24th of October 1972, of the learned Magistrate First Class, Hafizabad, whereby he was denied the sapurdari of Mercedes Benz Car No. LEG 1615, Model 1966. The grievance of the petitioner is that he was the person in law who was entitled to the sapurdari of the above- mentioned vehicle in preference to respondent R.I Muhammad Shafi.
2. The facts pertaining to this petition according to the petitioner, are that Mercedes Benz Car No. LEG 1615, 1966 Model was purchased by him for a sum of Rs. 20,700 from one Muhammad Javed, Proprietor National Motors; Gulberg, Lahore. The petitioner stated that after having made payment of the aforesaid amount to Muhammad Javaid, a receipt was duly executed. On the 19th of October 1972, the said car was taken into custody by an A. S. I. Of Police Station Hafizabad in connection with a case registered at Hafizabad Police Station under sections 406 and 420, P. P. C.
Sit the instance of respondent against Muhammad Javaid, National Motors, Gulberg, Lahore. After the car used been taken into custody by the A. S. I. The petitioner approached the Magistrate concerned and requested for sapurdari which was refused to him.
3. The main grounds on which the petitioner claims sapurdari of, the car are: firstly, that he was a bona fide purchaser for value from a person duly authorised by the respondent, secondly, that as the car was recovered frond his custody, he was the proper person in law who was entitled to its restoration on sapurdari pending the decision of the case, thirdly, that the car was not a case property at all as it did not relate to an offence committed against or in relation to the car was with regard to the sale --proceeds of Rs. 20,700, which amount was alleged to have been misappro-- priated by Muhammad Javaid of National Motors, and finally, the petitioner stated that he should not be made to suffer on account of fault of a third person and the car be given to him on sapurdari and it would be between the respondent and Muhammad Javaid of National Motors to decide the matter between themselves before a proper forum. The petitioner also submitted that the car was duly registered in his name.
4. The respondent contested this petition and submitted that the order passed by the learned Magistrate did not call for any interference because he had exercised his judicial discretion in accordance with law.
5. Learned counsel appearing for the petitioner in the first instance contended that the very registration of the case at Hafizabad was illegal and the learned Magistrate, as such, was not competent in law to pass the impugned order. He relied on subsection (9) of section 2 of the Sale of Goods Act as well as section 27 and also cited Haji Muhammad Jamal Khan v. The State and another (1972 P Cr. L J 363) and the Lahore Race Club v. The State and another (P L 13 1968 Lah. 10.).
He also drew my attention to sections 181 and 523 of the Code of Criminal Procedure.
6. On behalf of the respondent a preliminary abjection was taken with regard to the very maintainability of the petition under section 439 of the Code of Criminal Procedure. Another fact which was brought to my notice by the learned counsel for the respondent was that the petitioner in the instant case has gone to the Court of Sessions Judge, Gujranwala, under section 435 of the Code of Criminal Procedure, but his petition was dismissed in default on the 2nd of January 1973.
Learned counsel submitted that this fact having not been disclosed either in the petition by the petitioner or verbally submitted at the Bar, the present petition as such, be dismissed on this score alone. It is correct that the petitioner neither stated in his petition that he had approached the Sessions Judge and that his case before him was dismissed in default nor his counsel while arguing before this Court mentioned about the order of the learned Sessions Judge. Undoubtedly, it was most improper on the part of the petitioner not to disclose that he has already invoked the revisional jurisdiction of the Sessions Judge coupled with the fact that the learned counsel for the petitioner bas not given any convincing reason as to why he failed to mention this fact in his petition, such a behaviour decidedly reflects on the conduct of the party and his bona fide becomes doubtful.
7. However, in order to determine whether the learned Magistrate exercised his judicial discretion in accordance with law I have decided to consider this petition on its merits.
8. Dealing with the first objection that the very registration of the case Hafizabad was illegal, I am of the view that there is trot much force in it for the simple reason that the petitioner himself submitted to the jurisdiction of the learned Magistrate when he gave an application for sapurdari before him. Even in this petition no exception vas taken to the jurisdiction, of the learned Magistrate and he could not now be permitted to take advantage of the technical objection. So far as subsection (9) of section 2 and section 27 of the Sale of Goods Act are concerned, in my view they are not relevant for the adjudication of this petition, because subsection (9) of section 2 defines what is meant by a mercantile agent. A mercantile agent as defined in the Sale of Goods Act means "a mercantile agent having in the customary course of business as such agent authority either to sell goods, or to consign goods for the purpose of sale, or to, buy goods, or to raise money on the security of goods." Similarly, section 27 of the said Act deals with the sale by person who is not the owner. These are the question which would be gone into at the proper time by the proper authorities. In Central Co-operative Bank Ltd. v. Ahmad Bakhsh (PLD 1970 SC 343) it was observed that "it was hardly desirable to decide the question of title to the property concerned, nor the criminal Court competent to decide either. The question of or was title, if any, should be left to be decided by the ordinary civil Court o competent jurisdiction".
9. I have considered the two authorities cited by the learned counsel for the petitioner, namely, The Lahore Race Club v. The State and another and Ha/i Muhammad Jamal Khan v. The State and another. Keeping in view the factual as well as the legal position of this case. In my view they are not helpful to the petitioner. The investigating officer present in Court has placed before me a copy of the first information report which was lodged on the 13th of October 1972, and submitted that the accused in this C case, namely, Muhammad Javaid, had not so far been arrested. He also submitted that the investigation has been held up for the moment on account of the abscondence of the accused Muhammad Javaid and the possibility of the petitioner being an accomplice of the main accused, cannot be safely excluded. I do not wish to give any finding on this aspect. It would be for the investigating agency and the Court who would take cognizance of the matter to deal with it.
10. Learned counsel for the petitioner for the first time placed before this Court a photostat copy of a receipt in the sum of Rs. 20,700 which shows that the said amount was received from the petitioner on the 26th of June 1972, by Muhammad Javaid of National Motors. Learned counsel for the respondent drew my attention to the words "being the full and final payment of my car."
Contention of the learned counsel was that the words "my car" clearly indicate that Muhammad Javaid of National Motors was not acting as a mercantile agent but sold this property as a full- fledged owner. The genuineness and the validity of this receipt will be for the learned Magistrate to decide at the proper time.
11. A perusal of the order of the learned Magistrate, shows that he exercised the judicial discretion in a proper and legal manner and his order, calls for no interference. This petition is accordingly dismissed.