The parties to this petition are litigating about the custody of a car No. KAE-7045. Respondent No. 2 lodged an F.
1. R. With Police Station New Anarkali, Lahore, against the present petitioner and Begum Nasim Lal Shah Bokhari (mother-in-late- of the complainant) alleging that the petitioner had got transferred fraudulently the above mentioned car in his name with the connivance of Begum Nasim Lal Shah Bokhari. The police registered a case under sections 4201406/468 and 471: P. P. C.
The police also took into custody the car.
2. The parties separately applied for its custody on Supardari under section 516/523, Cr. P. C. The matter was considered by Mr. Sarfraz Khan, Magistrate, Lahore, who vide his order dated the 18th August 1975 declined to allow the Sapurdari of the car to any of the parties, for the reason that it may be recklessly used and depreciated in value. He further observed that the parties may renew their applications on fresh grounds for grant of Sapurdari after the challan is submitted. Mr. Farooq Jamil has now come up to this Court praying that the impugned order which, according to him, is in violation of the provisions of section 523, Cr. P. C., may be set aside and the car be ordered to be delivered to him on Sapurdari.
3. It is contended by the learned counsel for the petitioner that Mr. Ilyas Bokhari, the deceased husband of respondent No. 2 and brother of the wife of the present petitioner bad sold the car in question to him for a sum of Rs. 8,500 vide receipt (original produced and returned to the petitioner) and had also issued an authority letter directing the Motor Registering Authority to transfer the car in his name. The authority letter, a copy of which has been placed on record by the respondent as Annex. R/5, is dated 11th November 1973. It appears that this authority letter was not used within the prescribed 30 days as laid down by section 32 of the Motor Vehicles Act. The car was, however, transferred in the name of the petitioner on 6th June 1974. A photo copy of the registration book has been placed as Annex. `E' on record. The learned counsel for the petitioner also relied on the following documents to show that the car, even prior to its sale had been in his possession:-
(1) Service bill dated 5th January 1972.
(2) Repair Bill dated 8th May 1972.
(3) Repair Bill dated 2nd February 1973.
(4) Repair Bill dated 4th April 1974.
(5) Letter dated 28th May 1974 requesting the American Express to substitute the car in question for another car which has been pledged with them against a loan.
Some of the documents produced by the respondent also lend support to the case of the petitioner. Annex. R/2 is a certificate furnished by the petitioner to the Motor Registering Authority that the car in question had been sold to him by his brother-in-law. R/3 is a letter by the petitioner to the Motor Registering Authority to register the car in his name. R/4 is a letter by American Express to the Motor Registering Authority to make an endorsement in the registration book that the car is pledged with them. R/5 is the letter of authority by the deceased to the Motor Registering Authority for the transfer of the car as already referred to above. The respondent No. 2 also admitted in the plaint of the suit filed by her for the administration of the estate of her deceased husband also showed that the car was in possession of the petitioner.
4. Pima facie all these documents and the admission of the respondent No. 2 in her plaint go to show that the car in question was in possession of the petitioner since before the death of Mr. Ilyas Bokbari. They also show that the car had been sold by Mr. Bokhari to the petitioner and it wad registered in the name of the petitioner after the death of Mr. Ilyas Bokhari in pursuance to an authority letter written by him. It may be added here that Mr. Ilyas Bukhari died on 11th April 1974, while respondent No. 2 filed the suit on 2nd December '1974. The F. I. R. Was lodged about 7 months after the filing of the civil suit. Respondent No. 2 kept quiet all the time and neither demanded the car since after the death of her husband nor did she take up any steps in the suit itself for its custody etc. The F. I. R. And the application under section 523, Cr. P. C. Was therefore, filed about 15 months after the death of her husband.
5. The learned counsel also relied on a number of judgments of this Court as well as the Supreme Court to say that the learned Magistrate acted unlawfully to deny Sapurdari of a car to the petitioner, who was entitled to it. He further assailed the impugned order on the ground that the learned Magistrate, in any case, should have taken steps to locate the persons entitled to Sapurdari, even if be had to resort to a proclamation, but could in no case leave the car in the care of the police. The section 523, Cr. P. C. May be reproduced below:- "523. (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 entitled 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."
According to this portion the Magistrate is required to 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. The interpretation that this section has received in our Courts leaves no manner of doubt that if there is a person entitled to possession of such a property, the custody must be given to him. Reference may be made to 1970 P Cr. L J 447. In other cases the Superdari should be with the person from whom the property was recovered unless there are strong reasons to the contrary. In 1970 P Cr. L J 1253 where a car was pledged by A to B on cash payment of Rs.
10,000 and a cheque for Rs. 16,250 and B pledged it to C for Rs. 23,000 it was held that the custody of the property so seized should be handed over to the person from whom it is recovered unless there are strong reasons to the contrary. Similarly, in 1970 P Cr. L J 875 when a stolen car was recovered from a bona fide purchaser, the custody was given back to him pending the identity of the car as a stolen property being established. To same effect is the decision reported as 1972 P Cr.
L J 363; also the Supreme Court in 1871 P Cr. L J 352 observed as follows: "It is in evidence that the transaction between the parties about the truck in dispute was on the basis of a written agreement dated 13th September 1966. Respondent No. 2 under this agreement has parted with the truck and has also paid the original owners, namely, Khalil-ur--Rehman and Ishaq and has relied on an agreement dated the 12th August 1968, between him and them. The dispute in the present case is about the balance of Rs. 10,000. Till such time as the trial Court comes to the conclusion that respondent No. 2 has fraudulently and dishonestly obtained possession of the disputed truck it is not possible to say that the order passed by the learned single Judge of the High Court is not just and proper. It will be noticed that respondent No. 2 has been directed to furnish security in the sum of Rs. 30,000 though only a sum of Rs. 1000 remains payable. 'The truck was in posses--sion of respondent No. 2 and unless a strong case of cheating is made out against him, it should not have been recovered from his possession."
6. The learned counsel for the respondent firstly raised a preliminary objection saying that as the learned Sessions Judge was vested with a concur--rent jurisdiction with this Court, the petitioner should have moved that Court first. He referred to his own application which is pending there. In the written reply submitted by him, he however, made a specific prayer that in case the petition filed by the petitioner is not rejected on that preliminary objection the question of Superdari to him may also he considered. I do not think I should entertain this objection at this stage, for so much time of this Court has already been taken and I would not like to send the parties back to the learned Sessions Judge to remit the case back to this Court with his report. Even the record does not suggest that this procedure will facilitate the disposal of this case in any way if it is sent back. The objection of the learned counsel is not sustained.
7. The learned counsel for the respondent No. 2 then referred to the documents Annexs. R/2 to R/5 to say that the petitioner had unlawfully and fraudulently got the car transferred in his name after the death of Ilyas Bokhari. He also challenged the effectiveness of the authority of Ilyas Bokhari Annex. R/5 after his death. He further submitted that in any case the constructive custody of the car is either with American Express with whom it is pledged or with a cousin of the petitioner from whom it was taken by the police. The learned counsel also referred to section 187 of the Contract Act to say that even if there was an implied authority in the alleged receipt of price of the car or the transfer letter that stood terminated on the death of the principal under section 201 of the Contract Act. This plea was raised to support his argument that the authority letter given by Mr. Ilyas Bokhari lapsed on his death and thus the transfer was unlawful. He also referred to section 32 of the Motor Vehicles Act to say that as the authority in question had not been produced within 30 days it became ineffective.
8. The points discussed above and the law applicable leads me to irresistible conclusion that the order of the learned Magistrate denying Supardari of the car in question to the petitioner was unlawful. The docu--ments as referred to in para. 3 above prima facie support the contention of the petitioner that the car in question was in his possession prior to and after the death of Ilyas Bokhari. The question whether the car had been transferred illegally or fraudulently can only be decided by the civil Court and not in these criminal proceedings. The case of the petitioner is however, strengthened by the admission of the petitioner that the signatures on the receipt of the sale price as well as the authority letter issued to the Motor Registering Authority are genuine.
Prima facie, therefore, it is established that not only the car was in possession of the petitioner but he was apparently the owner in view of the receipt and the transfer letter directing the transfer of the car in the name of the petitioner. Further, the delay on the part of a person in presenting the letter of transfer within 30 days as provided in section 32 of the Motor Vehicles Act, only makes the person concerned, liable to pay penalty, but it does not affect the effectiveness of the transfer letter. The authority letter was in fact honoured by the Motor Registering Authority and transfer effected in petitioner's name. According to section 22(4) of the Motor Vehicles Ordinance, the person in whose name the car is registered is the owner. The question of termination of the authority is also not of much importance as if the same was for consideration, it cannot stand terminated on death, in view of illustration 1 to section 202 of the Contract Act.
9. The judgments cited above go to show that the Superdari should have been allowed to the person who was entitled to possession of the car or from whom it was recovered. In the present case all the documents on record do go to show that the petitioner was apparently the owner and was in possession of the car since 1972. He had acquired an interest in it in 1973. He was, therefore, entitled to its Superdari.
10. The learned counsel for the respondent then stated that if the car in question is banded over to the petitioner, it is likely to depreciate in value by wear and tear, thus causing loss to the estate of the deceased person. The learned counsel for the petitioner conceded the objection and submitted that his client is prepared to furnish a security equal to the price of the car, as it was on the death of Ilyas Bokhari, with a stipulation that if the suit of the res--respondent No. 2 is decreed to the effect that the car was owned by Mr. Ilyas Bokhari and was not sold to the petitioner, the respondent No. 2 would be entitled to either opt to get the security cashed or get back the car. This is a very reasonable offer. The question as to what is the price of the car was left to be determined by learned counsel for respondent No. 2 by inquiring from a few dealers in the city. The petitioner agreed that he will accept his statement on the matter. The learned counsel made inquiries and told me that a sum of Rs. 15,000 would be reasonable amount.
11. For the reasons given above, I accept this revision petition, set aside the order of the learned Magistrate and direct that the custody of the car shall be given to the petitioner on Superdari on his furnishing a bond in the sum of Rs. 15,000 with 2 sureties in the like amount to the satisfaction of the Illaqa Magistrate.
12. Before parting with this case, I must make it clear that the con--clusions arrived at and observations made above with regard to the right, title or interest of the petitioner in the car in question, shall in no way be con--sidered as conclusive or final and neither the learned Magistrate, who might be entrusted with the challan of this case, nor the learned Civil Judge, who is seized of the suit shall, in any way be influenced by the same.