' The applicant was arrested on 21-11-71 for an offence under section 379, P. P. C. On the allegation that he alongwith others had lifted one oil tanker, No, KAX 8996, while it was parked in Khokhrapar and was in the custody of the driver Muhammad Siddique on behalf of its owner Abdul Razzaq, respondent No,
1. On 21st November 1973, however, the S. D. M., Civil Lines discharged the applicant under section 253(2), Cr. P. C. In the circumstances which he described as under :- "From a perusal of the records the following points emerge :
(1) The F. I. R. No, 524/74 was lodged on 20-11-1971.
(2) The accused was arrested on 21-11-1971.
(3) The truck No, KAX 8996 was given to the complainant on Supurdginama on 24-11-1971 but it was never produced before the Court.
(4) The charge-sheet No, 54/72 was-
(i) prepared on 25-2-1972,
(ii) approved by D. S. P. East on 1-3-1972 for submission to the Court,
(iii) moved before the Court on 1-9-72.
(5) Since the institution of this case before the Court on 1-91972 no proceedings took place for want of case property and non-production of prosecution witnesses.
(6) The complainant and the accused are in civil litigations for the title of the case property truck No, KAX 8996. The above discussion shows that (i) the challan was submitted before the Court after ten months of lodging the F. I. R. And six months after it was approved by the D. S. P. East.
(2) No proceedings took place for more than a year, after the case was instituted before the Court, due to lack of evidence ; thus the prosecution have utterly failed to prove their case, (3) a civil suit about the ownership of the truck, the case property, is going on between the complainant and the accused."
2. While considering the question of disposal of the case property, the Magistrate has said :-- "No orders are passed for the disposal of the case property namely the Oil ranker (truck No, KAX- 8996) as the competent civil Court is seized of the question of its ownership."
' However, in the last para. Of his order, the Magistrate has expressed in very strong terms, his disapproval of the conduct of the investigating officer, in disregarding the orders of the Court and failing to produce the case property.
3. This application has been filed against the second part of the order which deals with the disposal of the Tanker, the subject-matter of the case.
4. The truck was given to the complainent on Supurdginamc on 24-11-1971, and it seems to be the case of the prosecution, that it was so given in consequence of some orders passed by some A. C.
M. It is also clear that from the date of challan till the date of this discharge order neither the truck nor the Supurdginarna, nor even the alleged order of the A. C. M. Were produced before the trying Magistrate. For that matter, the circumstances related by the Magistrate leading to the discharge of the applicant clearly show that the prosecution was not serious to conduct the case against him and had therefore not produced any evidence against him and it was in a state of complete dissatisfaction of the protection, that the Magistrate passed the order under section 253(2), Cr. P.
Code.
5. However, subsequent to the commencement of the case against the applicant, a suit for declaration and injunction had been filed by respondent No, 1 against the applicant and one Nawab Khan, praying :- "For a declaration that he is entitled to possession and use of the truck in question, on the basis of an agreement, dated 20.5-71, and further that the applicant be prevented from taking possession of the truck in question from plaintiff so long as the plaintiff performed his part under that agreement."
' By this agreement the applicant is alleged to have sold the truck to respondent No, 1 on hire purchase basis. On 13-7-73 the Civil. Judge passed this order : "Heard the counsel for the plaintiff and perused the affidavit filed by the plaintiff, and T also perused the certificate which shows that the truck was handed over to the plaintiff and is in possession of the plaintiff. I, therefore, order that status quo be maintained with notice to the other side."
' It is after the discharge of applicant under section 253, Cr. P. Code that the civil Court confirmed the above status quo by order dated 17-3-1974 saying :- "The learned A. C. M. Has discharged the accused and regarding the case property he has held that the parties should .Get the title decided from the Civil Court."
6. The S. D. M. Has referred to these matters in his order under section 253(2), Cr. P. C., and in that context Mr. Zahoorul Haq, the learned counsel for the applicant argued that the Magistrate has in fact declined to pass any order under section 517(1), Cr. P. Code about the disposal of the truck and he has committed an error in law. According to him even if the Magistrate was not able to get the truck produced before him he should have taken necessary steps to do so and should have taken against those who are responsible for disobedience of the orders of the Court. In any case the reason given by the Magistrate for not passing an order 1. e, the pendency of the Civil Suit in the civil Court relating to the truck was not a sufficient ground from abstaining from passing an order.
According to him, the documents produced before the Magistrate with regard to the civil litigation were not sufficient and that it was incumbent for the Magistrate to have considered the applicant's claim to the entitlement of the possession of the truck and decided that question. He submitted that the respondent had in fix adopted a device of obtaining the possession of the truck by a method which amounted to an abuse of the process of the Court. The Supurdginama and the order of the Magistrate on which it was alleged to be based were never produced before the Court and in absence of these documents it can never be assured that the possession of the truck had been legally given to the respondent No, 1 or his driver. In fact the delay of the investigating agency in producing the challan before the Court normally indicated that the proceedings are mala fide and were intended to misuse the powers that were given to the police.
' The learned counsel referred to the case of Central Co-operative Bank Ltd. v. Ahmad Bakhsh (1) wherein it is said that "a proceeding under section 517(1), Cr. P. C. Is obviously different from inquiry or trial under the Code and is a collateral proceeding for the purpose of disposal of the property or document concerned. In fact, a proceeding under section 517(1) of the Code of Criminal Procedure commences only after the connected inquiry or trial has been concluded," and contended that declining to pass an order about the disposal of the property on the basis of the reasons assigned, was to avoid the collateral proceeding.
' The learned counsel for respondent No, I however, referred to the documents the photostat copies of which have been placed on record in this matter and showed that the applicant had in fact no claim over the truck at the time when the offence of theft is alleged to have been committed by him. The respondent No, 1 had made full payment for the truck to the owner, in compliance with the terms of the hire-purchase agreement executed by the applicant himself. On the other hand, it was not correct to say that the Magistrate had passed no order under section 517(1), Cr. P. C. In fact the order was there, which though may not be very expressive, but by reference to pending civil litigation it could be understood to mean that the Magistrate abstained from entering into the question of title and desired to leave it for the civil Court to decide. According to him, the order was a {{FOT NOTE}}
(1) PLD 1970 S; C 343 {{FOT NOTE}} ' legal and proper order and, did not merit interference. As the truck was already handed over on a supurdginarna to the respondent No, 1 by a Magisterial order, his possession over the same was legal and the Magistrate quite properly thought it unnecessary to interfere with the same.
Possession of the respondent No, I was thus continued. He relied on several authorities in support of his argument to the effect that in the first place it was not compulsory for the Court to return the property to the person from whom it was secured and that it was in fact desirable that the question of title to the property should always be left for the civil Court to decide. In his submission, therefore, the Magistrate had rightly passed the orders which could be construed as a positive order, in view of the rending civil suit.
' Mr. Jalaluddin Baloch, appearing for the State, supported the contention that order under section 253, Cr. P. Code, alongwith the material on record clearly indicates that the whole proceedings amounted to a misuse of the process of the Court. The obvious purpose was only to get the possession of truck from the applicant and thereafter to drag him in litigation. Whatever be the relations of the parties among themselves, the manner in which the proceedings were conducted and the orders of the Court flouted is something which cannot be commended and the Magistrate was duty bound to go into the merits of the case himself regarding the disposal of the property.
According to him, the language of section 517, Cr. P. C. Did not at all require the Magistrate to go into the question of title. The question before the civil Court was also not that of ownership, as the Magistrate has thought. In these circumstances, he submitted that the order be set aside as improper, and the trial Court be directed to hold a proper inquiry.
7. Now, section 517(1) of the Cr. P. C. Reads as under :- '`517(1). When an inquiry or a trial in any criminal Court is concluded, the Court may make such order as it thinks fit for the disposal by destruction, confiscation, or delivery to any person claiming to be entitled to possession thereof or otherwise of any property or document produced before it or in its custody, or regarding which any offence appears to have been committed, or which has been used for the commission of any offence."
A plain reading of the section itself shows that the time for passing the order commences only when an enquiry or trial is concluded. A proceeding under section 517(1) has been interpreted to be a collateral proceeding, and has thus nothing to do with the enquiry or trial. A claim to possession of such property could be made even by an independent application for which no period of limitation is prescribed except that it must be made within a reasonable time. It is also not necessary that the order for disposal of property must be passed simultaneously with the judgment in the main case, and it would not be illegal to pass such an order subsequently.
However, a duty is cast on the Court to make some order for the disposal of the property, described in the section, and this duty continues till the property is disposed of in any manner specified in the section and in accordance with the nature of the property concerned. The disposal is thus to be made either by destruction or confiscation or delivery to any person claiming to be entitled to the possession thereof. Obviously, the scope of the enquiry under section 517(1), Cr. P. C. Is limited to the question of a claim to possession, and not the title or ownership of the property. It is possible to think of a situation where the Court is unable to decide a claim to possession on the basis of evidence before it or due to any rivalry of claims and in that case it may hold back and not pass any order till the claim is got decided through a proper civil Court; but it is very much doubtful if a mere pendency. Of a civil suit, without anything more, could stop the Court from passing the required order which by its very nature concludes only an immediate right to possession.
' The copy of the plaint produced in this case shows that even before the civil Court the declaration sought was not with regard to the ownership but was about the claim to possession. If there had been an adjudication, the criminal Court was however bound to take that into account before passing an order under section 517, Cr. P. C. But was not bound to wait for such an adjudication. No final order is produced in this case to show that the civil Court decided the question before it. The status quo order was confirmed after the discharge order was passed by the criminal Court. In fact the order of the criminal Court was made the basis. In these circumstances the S. D. M. Has most certainly failed to perform his duty under section 5 17(1), Cr. P. C. It is true that the truck was never produced before him in spite of efforts, but that need not have prevented the passing of the order.
It was admittedly given on Supurdginama to the complainant who was before the Magistrate, and was repeatedly making applications for grant of time to produce the truck, which was entrusted to him. Even the status' quo order from the civil Court was obtained on the basis of this entrustment for which a certificate was produced. The Magistrate had not thus lost control over the property so as to be disabled from passing any order under section 517, Cr. P. C.
' In my view the language used by the Magistrate in his order under section 253(2), Cr. P. C. Does not conclude the matter with regard to the disposal of the case property. Obviously, the prosecution has not been cooperative, and have misconducted the whole case, but expressing disapproval of the same, however, strongly, would not relieve the Court of its duty to pass a proper order under section 517(2), Cr. P. C. My attention has been drawn to an application dated 20-11-73 made by respondent Abdul Razaq as Supurdgidar of the truck, praying for exemption from producing the truck in Court on the ground that it could not be produced as it required some spare parts which were not available. The Magistrate rejected this application by his order dated 21-11-73, but strangely enough on that very date another application was moved by the counsel of the respondent Abdul Razaq, which is in the following terms : - "4. That finally on the last date of hearing this Hon'able Court was pleased to direct the applicant to produce the oil tanker on 20th November 1973.
5. That the applicant have obtained certain spare parts of the tanker from black market and has been able to get the tanker repaired partially.
6. That it will take about another fifteen days for the oil tanker to be road worthy. It is therefore, prayed that in view of the abovementioned facts, a grace period of 20 days may kindly be granted to the applicant surety to produce the oil tanker."
' On this application the order of the Magistrate appeared as under :-- "I do not accept this. This case has been hanging on for the past over two years, without any evidence, The case has already been discharged under section 253(2), Cr. P. C."
' The respondent Abdul Razaq had thus undertaken to produce the truck within 20 days and the Magistrate could have passed proper orders about its disposal as it was under the control of the Court. I think the Magistrate completely failed to appreciate the true import of section 517(1), Cr. P.
C. And passed an order which was misconceived.
8. This application is, therefore, allowed with the direction that the District Magistrate, Karachi, may hold a proper enquiry into the question of disposal of the case property of this case, which shall be produced before him by the Spurdgidar i. e. Respondent No,
1. The District Magistrate shall hear the parties and receive all evidence after giving them proper notice.