This is a revision petition against the order of Malik Jahangir Khan, Cantonment Magistrate, Lahore, dated 14th of June 1969, refusing the delivery of Car No. KAB-4539 to the petitioner on Superdari.
2. Two persons, namely, Nazar Masih and Maqsud Alain were accused of offences under sections 406 and 420 of the Pakistan Penal Code vide F. I. R. No, 34 registered on 28th of March 1968, in Police Station North Cantt. It is alleged that they had deprived the complainant Muhammad Daud and his brother of a sum of Rs. 14,000 by mis-representing to them that they will supply them iron bars for that amount. We find in the F. I. R. That Rs. 500 were paid in advance and Rs. 1,350 were paid by Muhammad Usman the brother of the complainant when Maqsud Alam produced before him a duplicate receipt executed by the complainant. It appears that at some stage the police added section 392, P. P. C. Also to the charge against the accused. We find in the report submitted by the police under section 173, Cr. P. C. To the Court that Maqsud Alam had deprived Muhammad Usman of this money by force although there is no mention of this in the F. I. R.
3. It appears from a memo on the record that the car in dispute which was fitted with a radio was taken hold of by the police from a road-side on 31st of March 1968, as an unclaimed property and as a piece of evidence in this case.
4. Miss Zarina Khan, the petitioner, who is stated to be the sister of Maqsud Alam accused claims to be the owner of the car. She applied to the learned Magistrate on 10th of April 1968, for the restoration of the car to her. The learned Magistrate passed an order on 11th of April 1968, to the effect that the matter will be considered after the challan had been put in. The matter was adjourned and was ultimately disposed of on 6-5-68 it was submitted to the learned Magis--trate that the challan was being submitted to Court on that day and necessary orders be passed with regard to the custody of the car. The learned Magistrate observed that the property being a car was not subject to decay and the question of its disposal would be decided after material witnesses have been examined. The learned Magistrate was again moved for res--toration of the car. He passed another order on 12th of August, 1968, refusing the restoration of the car to the petitioner---on the ground that there had been no change in the circumstances.
5. It appears that no evidence was recorded for quite a long time and the learned Magistrate was again approached in June, 1969, for the restoration of the car. He passed the impugned order on 14th of June, 1969, observing that no change in the circumstances had taken place. It was further observed that a move for the transfer of the case had been made by Nazar Masih, which matter had not been decided by the High Court and a query in that behalf had been made from the High Court.
6. It is submitted by Ch. Barkat Ali Saleemi, the learned counsel for the petitioner, that the orders of the learned Magistrate refusing to restore the custody of the car to its owner are entirely illegal and unwarranted. He asserts that it is factually incorrect that this car was used in the commission of the offence. The offence, according to the learned counsel was complete as soon as the money was handed over by Usman to Maqsud Alam accused after seeing the duplicate of the receipt executed in his presence by the complainant.
7. There is no mention of any use of force in the F. I, R. Nor is there any mention of the fact that the accused went away in a car after receiving the-money. In the challan, however, it has been alleged that Maqsud Alam forcibly depriv--ed Muhammad Usman of the money and left in the car in question. This latter version according to the learned counsel is an improvement on the original story and was intended to magnify the case against the accused and justify the retention of the car in the police custody.
8. The learned counsel has placed on record a certificate of the Registration Authority, Lahore, dated 14th of October, 1969, which shows that this car was registered in the name of Miss Zarina Khan, the present petitioner on 15th of June 1967. He has also shown me a receipt executed by one Riaz Ahmad, 3-Hall Road, Lahore, the previous owner of the car by which he sold the car to the petitioner. He has also shown me the receipt regarding purchase of the radio fitted in the car. It is submitted that the petitioner is the sister of Maqsud Alam and if, at all, Maqsud Alam went in this car after receiving the money from Muhammad Usman, it cannot be said that this car was used in the commission of the offence. He also takes exception to the observation of the learned Magistrate that the car was not subject to decay and submits that in fact the car has decayed to a consider--able extent because of the fact that it was not used for a long time.
9. In my view, the order of the learned Magistrate with--holding the car from its true owner was entirely unjustified. Under section 516-A of the Criminal Procedure Code the Court has to pass order for "proper custody" of the property regarding which an offence has been committed or which appears to have been used for commission of any offence. The car, in this case, was owned and claimed by the petitioner who was not alleged to have done anything to advance the commission of the offence. The car may or may not have been subject to decay but the learned Magistrate entirely lost sight of the fact that by his unjustified refusal to hand over the car to the real owner, he was depriving her of her legal right to use her own property.
10. I also find that the assumption of fact contained in the impugned order dated 14th of June 1969, that Nazar Masih had moved the High Court for transfer is not correct. Nazar Masih had made a statement before the Court on 9th of June 1969, in which he admitted that he had not moved the High Court at all for transfer of the case. In spite of this categorical statement the learned Magistrate was at pains to send a query,, to the High Court on 9-6-69 with regard to this application which according to the accused himself was not in existence. The order of the learned Magistrate is also vitiated because of this mis-statement of fact.
11. Syed Ali Raza, the learned counsel for the State, has candidly conceded that he is not in a position to defend the impugned order.
12. In view of the above circumstances, I set aside the order of the learned Magistrate dated 14th of June 1969, and direct that the car in question be handed over to the petitioner Miss Zarina Khan on superdari along with the documents per--taining to the car.
13. A copy of this order shall be sent to the learned Magis--trate and another shall be placed on his record in the High Court.