' Since both these Criminal Miscellaneous Applications filed under section 561-A, Cr.P.C. Are inter- connected, hence for the sake of convenience they are being disposed of by a consolidated;udgment.
2. Almost all the material facts in this case are either admitted or undisputed. However, for a proper appreciation of the points involved in these proceedings which are to be disposed of by this judgment it is necessary to refer to the relevant facts in some detail.
3. Applicant is the owner of a Honda Accord Car, Model 1988, Chassis No, C-203164 and Engine No,3002187, which was duly registered on 18-7-1988 at Karachi with Registration No,267-546. On 30- 5-1989 this car was snatched by show of force and the F.I.R. Being Crime No,339 of 1989 was registered at Ferozabad P.S. Subsequently the applicant notified 52 Registration Districts of Pakistan about this incident. He also placed an advertisement in the newspaper in relation to this car.
4. On 21-8-1990 Amanat Javaid Mirza, Inspector, C.I.A. Karachi recovered this car from the possession of respondent No,2. The investigation of the case revealed that the said car was re- registered under Registration No,286-995 and was purchased by respondent No,2 from International Motors, Gulberg Lahore for a consideration of Rs,7,42,000. The respondent No,2 applied for the custody of the car to A.C.M., C.IA., Karachi who called the report from the concerned police officer and without giving an opportunity of hearing to the real owner of the car, viz. The applicant, passed the following order on 8-9-1990: "The vehicle in question be returned to its owner after due verification on superdari with the direction to produce, if and when required."
5. The applicant came to know about the recovery of his car and he also submitted an application to A.C.M., C.IA., Karachi, who this time heard the parties and disposed of the application with the following order:-- "In view of the above facts the title of the vehicle has now been disputed and it would not be feasible to hand over temporary custody of the vehicle to any of the claimants till the title of the vehicle is decided by the competent Civil Court as there are certain points, which require adjudication and decision by the Civil Court. I hereby order that the car, which has got Registration Nos. (1) 267-546, (2) 286-995 and (3) F-5617, may remain in the custody of CIA. Till the parties prove their title over the vehicle."
6. This order, dated 1-11-1990 was challenged by the applicant before this Court in Criminal Revision No,91 of 1990 filed on 25-11-1990. This Court, however, directed the applicant to move the Court of Session in the first instance by filing a criminal revision under section 439-A, Cr.P.C. The applicant then filed Criminal Revision No,60 of 1990 before the Court of Session (East) Karachi, which was transferred to the Court of III-Additional Sessions Judge (East) Karachi. The learned Additional Sessions Judge decided this revision application on 4-3-1991 in the absence of respondent No,2, who was out of country add in my view was not properly served, with the following order:-- "The settled law is that the theft property should be handed over to its owner and in the circumstances of the case looking to the documents produced on record, I am of the view that the learned Magistrate has erred in holding that the title was disputed. The application is allowed. The custody of the car in question is allowed to be handed over to the applicant, subject to furnishing solvent surety in the sum of Rs,8,00,000 (Rs, eight lacs). The criminal revision application is allowed."
7. Being dissatisfied by the penultimate sentence of the above order relating to furnishing of surety, the applicant challenged it before this Court in Criminal Miscellaneous Application No,145 of 1991, which was admitted to regular hearing on 14-5-1991. During the pendency of this Criminal Miscellaneous Application the repsondent No,2 filed Criminal Revision Application No,12 of 1991 in the Court of Sessions Judge (East) Karachi making Kashif Shafeeq Vohra, brother of applicant who was first informant in Crime No,339 of 1989, Ferozabad P.S., under section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, registered in respect of the car in question, as a party. The learned Sessions Judge who heard this revision application committed the same mistake and without effecting proper service in the manner provided in section 70, Cr.P.C., held service upon the wife of Kashif Shafeeq Vohra as good and decided the revision application in favour of respondent No,2, vide order, dated 29-4-1991, with the following direction:-- "Respectfully following the law laid down in C.M. Safdar v. The State 1968 PCr.LJ 936, and Malik Atta Muhamamd v. The State and another 1970 PCr.LJ 875, this revision application is allowed and the impugned order, dated 1-11-1990 pased by the Illaqa Magistrate, C.I.A., (East), Karachi is set aside.
D.S.P., C.I.A. Ferozabad P.S., East Karachi is directed to return the car bearing No,267-546, Registration No,286-995, Honda Accord Model 1988 to the applicant on Superdiginama in the sum of Rs,7,50,000 (Rs, seven lacs fifty thousand only). However, the applicant is directed that he should not dispose of or sell the car in question and produce the same before the Court of law, as and when required till final disposal of the case."
8. The applicant moved an application under section 21 of the General Clauses Act, 1897 (section 20 of the W.P. General Clauses Act, 1956) before the Sessions Judge (East) Karachi, for recalling of the said order, but without success. He has, therefore, approached this Court again by filing Criminal Miscellaneous Application No,241 of 1991.
9. I have heard Mr. Kazi Faez Isa, learned counsel for applicant, Mr. Qamar Muhammad Khan, learned counsel for respondent No,2 and Mr. Aziz-urRehman Shaikh, learned counsel for the State.
Mr. Shaikh has not supported the order, dated 29-4-1991 passed by learned Sessions Judge (East)
Karachi.
10. Sections 516-A to 525, Cr.P.C. Deal with powers of the Court in the matter of disposal of property.
Since the decision of both these applications filed under section 561-A, Cr.P.C. Hinges on the interpretation of section 516-A, Cr.P.C. And section 523, Cr.P.C., it would be convenient to read the material provisions which are in the following terms:-- "516-A. When any property regarding which any offence appears to have been committed, or which appears to have been used for 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:-- ' Provided that, if the property consists of explosive substances, the Court shall not order it to be sold or handed over to any person other than a Government Department or office dealing with, or to an authorised dealer in such substances."
11. Section 523, Cr.P.C. Again provides as under:-- "(1) The seizure by any police officer of property taken under section 51, or alleged or suspected to have been stolen, or found under circumstances which create suspicion of the commission of any offence, shall be forthwith reported to a Magistrate, who shall make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or, if such person cannot be ascertained, respecting the custody and production of such property.
(2) If the person so entiteld is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit. If such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation."
12. It will, therefore, be seen that section 516-A, Cr.P.C. Enables a Magistrate to provide for interim custody of property pending the conclusion of the trial. Admittedly no charge-sheet has been submitted in this case on the F.I.R. Lodged by Kashif Shafeeq Vohra, brother of applicant being Crime No,339 of 1989, Ferozabad P.S., under section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, although the case property was recovered from the possession of respondent No,2, with same Chassis and Engine numbers. The learned A.C.M., had, therefore, passed the orders dated 8-9-1990 and 1-11-1990 under section 523, Cr.P.C. The first order was passed at the back of the application although the report submitted by Amanat Javaid Mirza, Inspector, C.I.A., Karachi, who is the Investigating Officer made a clear mention that this car is the stolen property of Crime No,339 of 1989, Ferozabad P.S. It was, however, an interim order and did not attain the finality as the applicant who is the owner of this car was condemned unheard.
13. Both the parties were dissatisfied with the order of learned A.C.M. Dated 1-11-1990. The applicant challenged it in Criminal Revision No, 60 of 1990 which was decided in his favour by learned III- Additional Sessions Judge (East) Karachi on 4-3-1991. The respondent No,2 challenged this order in Criminal Revision No,12 of 1991, which was decided in his favour by learned Sessions Judge (East)
Karachi on 29-4-1991. As observed above both these orders were passed at the back of respective contestants and are liable to be set aside on this score alone. The essential question to be decided now is whether in the circumstances of the present case it is a case for remand or the point in issue be decided by this Court once for all. The first course suggesting that I might send the case to the Court of Session for a proper finding after hearing the parties is likely to perpetuate a wrong already done to the applicant who is deprived of the custody of his own car for the last one year.
Delay in disposal of such 'cases is an ugly feature of our judicial system. Once a seasoned client remarked:-- "If there is ample money in your pocket and sufficient time at your disposal you can delay the disposal of the case till entirety."
' On being asked how it was possible the gentleman, divulged the secret:-- " always prefer an appeal against every order passed by a Court. If the order is not appealable, then go in for revision "
' (Refer Shamim, M. "Overhauling the judicial system". The Commercial Law Gazette, November, 10, 1979, reproduced in Crime and Criminal Justice System in India by Dr. Mir Mehrajuddin.)
' I, therefore, propose to decide both these applications on merits.
14. Section 523, Cr.P.C. Reproduced above provides the procedure by police upon seizure of property taken under section 51, Cr.P.C. Or stolen (seized under section 550, Cr.P.C.). On a plain reading of this section it is clear that proper procedure was not adopted by the police in this case as no intimation was sent by the police to the concerned Magistrate. Admittedly the recovery was made on 21-8-1990 and the report was submitted by the Investigating Officer on 8-91990 after it was called by the concerned Magistrate on the application of respondent No,2. The applicant who was the owner of this car was kept in dark although the seizure memo. Dated 21-8-1990 makes it clear that this car was seized in Crime No,339 of 1989, Ferozabad P.S. An attempt was, therefore, made from the very outset to oblige respondent No,2, who claimed to be a bona fide purcahser of this car, although in fact he was a purchaser from a thief and should have been prosecuted alongwith the persons from whom he claimed to have purchased this car.
15. Admittedly the car belonged to applicant. There is also no dispute that it was stolen on 30-5- 1989 and such F.I.R. Being Crime No,339 of 1989, was registered at Ferozabad P.S. The applicant took all possible precautions so that this car may not be re-registered, but all in vain. This car was re- registered and purchased by respondent No,2 from Lahore. On seizure the Chassis No, and Engine No, were found the same, but still the real owner was deprived of its custody as against the respondent No,2 who is a purchaser from a thief. It may be added that the registration certificate is not in the name of respondent No,2 who is retaining the car on the strength of open transfer letter, which in my view is not a valid document of title. I am supported in this behalf by the case of Ghulam Shabbir Lashari v. The State reported in 1991 PCr.LJ 287 wherein it was observed that T.O.
Form is not by itself a document of title.
16. The case of A.K.A.R A. Chettyar v. Ma Saw Hla, reported in AIR 1937 Rangoon 450, is the nearest parallel to the present case, wherein it was remarked:-- "Where the known facts plainly show that the property has been stolen, it would be intolerable to allow the person in whose possession the property is found to retain it as against the rightful owner and force the latter to a civil suit for its recovery if the accused absconds."
17. In the case of Inayatullah v. Muhammad Tufail and 2 others reported in PLD 1976 Lah. 641, it was held in clear terms that stolen property cannot be given on Superdari to a purchaser from thief pending decision of the case.
18. I am conscious of the fact that a different view has been expressed in number of cases including the one relied upon by learned Sessions Judge to the effect that ordinarily the Court is required to give temporary custody of the property to a person who was last in possession unless otherwise there are special features which may warrant a different course. The present case is certainly of an exceptional character where the concerned police has avoided to prosecute the persons who could be thieves or purchaser of the property from the thieves. A cruel wrong was done to the applicant which was perpetuated by different Courts at different stages. In this way a person who himself was a victim and who had a preferential right was denied the custody of his own car by a person who claimed to have purchased it from a thief.
19. From all the above cases to which I have referred, and many others, I am of the view that both the orders, dated 4-3-1991 and 29-4-1991 passed by III- Additional Sessions Judge (East) Karachi and Sessions Judge (East) Karachi, respectively, are liable to set aside and they are accordingly set aside. Both the applications filed under section 561-A, Cr.P.C., being Criminal Miscellaneous Application No,145 of 1991 and Criminal Miscellaneous Application No,241 of 1991, are allowed. The custody of the car in question shall be delivered to applicant on Superdari on furnishing a personal bond in the sum of Rs,8,00,000 (Rs, eight lacs) to the effect that he would not dispose of the said car till further orders passed by competent Court and would produce it before the competent Court, as and when required. The A.C.M., C.I.A., Karachi will take necessary steps for the compliance of the order of this Court without any further loss of time.