Criminal Revisions 716 and 770 of 1969 are connected matters relating to the interim custody of Car No. KAG 8918 and are being disposed of by a single order.
1. Tile brief facts giving rise to these petitions are that on 16-10-68 a case relating to the theft of Car No. KAG 21x5 Toyota was registered at Police Station Ferozeabad, Karachi, under section 379, P. P. C.
At the instance of one Ghulam Mohammad. The case presumably remained untraced for a pretty long time but later on a clue was furnished regard--ing a gang of criminals whose modus operandi is to steal cars. The case is still pending investigation. It was on 4-4-69 that Car No. KAG 8918 was seized by the police from the possession of Malik Ata Mohammad petitioner in Criminal Revision No. 716/69 presumably under section 550 of the Cr. P. C. The case of the Police seems to be that it was the same Car No. KAG 2185 which originally belonged to Ghulam Mohammad and was stolen at Karachi in October 1968; that the number of the car as also that of the chassis had been changed.
2. It appears that in, the meantime Ghulam Mohammad, the original owner of the stolen car, laid a claim with M/s. Crescent Star Insurance Company with whom it was insured and the latter having accepted the claim and made full payment of the same to Ghulam Mohammad stepped into his shoes as owners of the stolen car.
3. It also appears from the relevant documents placed on the record that Malik Ata Mohammad petitioner in Cr. R. No. 716 of 1969 had purchased the car in question from one Mohammad Siddiq for a consideration of Rs. 15,400 on 10-3-69 and the aforesaid Mohammad Siddiq had in turn purchased the same from one Sultan Ahmad on 7-1-68. When the Sargodha Police seized the car in question from the possession of Malik Ata Mohammad, he applied to Khan Aman Ullah Khan, Magistrate 1st Class, Sargodha, seeking its interim custody and consequently vide his order dated 7-5-69 the learned Magistrate entrusted the car to the custody of Malik Ata Mohammad. Three weeks later, on 30-5-69, Syed iftikhar Hussain Kazmi, Branch Manager of Crescent Star Insurance Company, McLeod Road, Lahore, filed an application before the -learned Magistrate also laying claim to the custody of the car and the learned Magistrate reviewing his previous, order allowed this application and handed over the car to the custody of Iftikhar Hussain on Superdari. Feeling aggrieved Malik Ata Mohammad filed Ci'. R. No. 716/69 which was admitted to full hearing vide this Court's order dated 20-6-69 and the operation of the impugned order was also suspended. At this Syed Iftikhar Hussain resorted to two-fold remedy: firstly, Cr. M. 1 of 1969 was filed seeking vacation of the order passed by this Court in Cr. R. 716/69; and secondly, Cr. R. 770/69 was filed challenging the original order of the learned Magistrate dated 7-5-6y passed in favour of Malik Ata Mohammad whereby the vehicle in question was entrusted to his interim custody on Sunerdari.
4. The factual position as it finally emerges is that the Crescent Star Insurance Company represented by Syed Iftikhar Hussain Kazmi petitioner in Cr. R. No. 770/69 who is its Branch Manager stands prima facie subrogated in place of Ghulam Mohammad, the original owner of the stolen car, regarding which a case was registered at Police Station Ferozeabad. Karachi. It also appears prima facie that Malik Ata Mohammad was a bona fide purchaser for value of the car which was recovered by the police from his possession on 4-4-69. A pertinent question arising in the circumstances, which can alone be determined at the trial, however, is whether the car recovered from the custody of Malik Ata Mohammad is the same which was the subject-matter of Karachi theft case. Obviously, at this stage, it, is neither appropriate nor possible for this Court to give a conclusive finding on this relevant issue. The second question to be determined, however, is that assuming that the car recovered from the custody of Malik Ata Mohammad is the same which originally belonged to Ghulam Mohammad and was stolen at Karachi and that new numbers had been substituted whether Syed Iftikhar Hussain Kazmi representative of the Insurance Company which has been subrogated in place of Ghulam Mohammad, the original owner, has a claim preferential to that of Malik Ata Mohammad to the custody of the vehicle. Since, however, the first important point, namely, the establish--ment of the identity of the car recovered from the custody of Malik Ata Mohammad has yet to be established by a Court of competent jurisdiction, obviously, therefore, in the circumstances the Insurance Company cannot be deemed to have, a preferential claim to the custody at this stage. Even otherwise it cap be stated on the basis of a chain of authorities that normally the interim custody of property seized by the Police under section 550, Cr.
P. C. Alleged or suspected to have been stolen etc., when the case is still pending investigation, entrusted to the person from whom it is recovered, pending the final disposal of the case. Reliance may be placed in this regard on Lahore Race Club. State and another (1) and U-Ba Hlaing v.
Balabux Sadani (2).
5. It may be observed in this context that an order for the interim custody of property regarding which an offence might appear to have been committed could be made under section 516-A, Cr. P.
C. Only when it is produced before any criminal Court during an enquiry or trial and not during the pendency of the investigation. Thus section 523, Cr. P. C. Is the only relevant section under which an order for the interim custody of the property seized by the Police can be made during 'the pendency of the investigation. Once the position as to the relevant claims of different persons to such property has been finally determined on the conclusion 'of the enquiry or a trial by the Court concerned, it has been given vast powers under section 517, Cr. P. C. To make a final order in respect of its disposal so much so that even properties obtained in exchange for the property found to have been originally stolen can be made over by the Court to any person considered entitled to it. This is stated only to emphasize the position that an order passed at this stage is only interim in nature which does not purport to give any finding in regard to the title of the rival claimants to ownership of the vehicle.
6. It has been contended on behalf of Syed Iftikhar Hussain, petitioner in Cr. R. No. 770/69 that Malik Ata Mohammad is using the car in question as a taxi which is bound to result in its rapid
(1) PLD 1968 Lair.(2) AIR 1937 Rang. 42 depreciation and in the possible event of the final acceptance of hi claim he will bear irreparable loss on this account. The only pro--per guarantee against the deterioration in value of the car in question, in the circumstances, seems to be that Malik Ata Mohammad should furnish adequate security to make good the loss in the possible event of the defeat of his claim to the ownership of the vehicle in question, fie is accordingly directed to furnish security in the sum of Rs. 15,400 (the value at which the vehicle 'vas priced by him) to the satisfaction of the learned Magistrate: This should be done within one month from today failing which the present order shall be liable to be withdrawn.