' This is a suit for declaration and recovery of five motor vehicles secured by the defendant No,1 (hereinafter referred to as the F.I.A.) wherein the plaintiff has filed this application under sections 94 and 151 read with Order XXXIX, Rules 1 and 2, C.P.C. (C.M.A.7469 of 1996) seeking direction that the said vehicles may be delivered to the plaintiff. Following are the details of the five motor vehicles as disclosed in para. 2 of the plaint:-- S. No. MAKE REG.NO MODEL
1. Mercedes BenzW-4291 1990
2. Sportage BC-3637 1994
3. Suzuki MargallaU-8609 1993
4. Honda CivicAB-1461 1995
5. Toyota CorollaZ-1461 1994"
2. I have heard Mr. Mansoorul Arfin, Advocate for plaintiff and Mr. Chowdhry Muhammad Iqbal, standing counsel for the defendants. On the previous dates of hearing, I had also heard Mr. Syed Tariq Ali, standing counsel who at that time was representing F.I.R. At the very outset, Mr. Syed Tariq Ali had raised objection to the maintainability of the suit as well as the instant application.
According to the then standing counsel, the remedy, if any, available to the plaintiff is under section 516-A, Cr.P.C. By moving the trial Court. It was further contended that since the matter is sub-judice before the Special Court (Offences in Banks) Sindh, at Karachi, the present application, which seeks a relief in the nature of a mandatory injunction, could not be maintained. In reply to this objection, Mr. Arfin has argued that there is no specific bar in the entire scheme of Criminal Procedure Code prohibiting a suit of like nature. It was further contended that the plaintiffs are the lawful owners of these vehicles and could file a separate suit for declaration and possession of such vehicles which were illegally and unauthorisedly seized by the F.I.A. He has placed reliance on the following cases:- -
(i) The Lahore Race Club v. The State and another PLD 1968 Lah. 185;
(ii) Muhammad Yousaf v. Muhammad Iqbal and 3 others PLD 1979 Kar. 430;
(iii) Naya Daur Motors (Pvt.) v. Pakistan Banking Council and 7 others PLD 1997 Kar. 208;
(iv) Central Cooperative Bank Ltd., Sargodha v. Ahmad Bakhsh PLD 1970 SC 343;
(v) M. Salim Khan v. The State and 3 others 1990 PCr.LJ 285;
(vi) Arbab Khan v. The State 1990 PCr.LJ 649;
(vii) Rana Muhammad Salim v. The State 1992 P.Cr.LJ 750;
3. Brief facts of the case are that on 27-8-1996, at about 1245 hours, an F.I.R. Bearing No,15 of 1996 was lodged with the F.I.A, wherein it was alleged that some seven companies had obtained loan from National Development Finance Corporation (NDFC) in violation of the rules and procedures, by fraud and with connivance of the N.D.F.C. Officers. During the investigation, a raid was conducted on the residences/offices of the accused persons and several vehicles ,and other properties were seized including the abovementioned five vehicles, On this basis, it is claimed by the F.I.A. That these five vehicles, being the case property could not be delivered to the plaintiff through civil proceedings. On the point of maintainability of this suit, Mr. Arfin has placed reliance on the case Naya Daur Motor (PLD 197 Karachi 208) which arises out of the same F.I.R. As of the instant case. In that case, the present plaintiff has filed a suit for declaration and recovery of certain shares which were allegedly recovered by the F.I.A. A plea was raised on the part of defendant that suit of such nature is barred by the provisions of Offences in Banks (Special Courts)
Ordinance, 1984 (hereinafter referred to as the Ordinance, 1984). An application was also filed under Order VII, Rule 11, C.P.C. For rejection of plaint in that suit which was dismissed by a learned single Judge of this Court, Rana Bhagwan Das, J. With the following observations:-- "12. There is no gainsaying that the civil Court is a Court of general jurisdiction which is invested with unlimited jurisdiction to decide all disputes of civil nature unless the jurisdiction is barred expressly or by intendment. Strictly speaking a civil Court shall not lean in favour of ouster of jurisdiction unless the same is taken away by express and unequivocal legislation. In my view bar of jurisdiction by implication of law should also be strong and not admitting of another view. In the present case plaintiffs are claiming their right, ownership and title to the shares pledged with them by defendants Nos.5, 6 and 7 which is a dispute of civil nature. Notwithstanding the claim by defendant No,1 to these shares, the question of ownership and title, to my mind can only be decided by a Court of pleanary jurisdiction and not by a Court of criminal jurisdiction enquiring into offences relating to affairs of a Bank. It is true that Special Court has passed an interim order directing handing over of the shares of Tawakkal Limited in favour of defendant No,1 subject to furnishing of an indemnity bond, the order by itself being interim in nature does not divest this Court of its jurisdiction to entertain the plaintiff's claim by any stretch of reasoning. It is to be determined at the trial whether these shares form the subject-matter of the trial against the accused persons before the Special Court. Whether these shares were agreed to be handed over to defendant No,1 as guarantee for repayment of loan by defendant No,8 would also arise for decision at the trial which cannot be summarily disposed of at this preliminary stage of the suit.
Needless to reiterate Special Court may not be in a position to lawfully determine the question of ownership and title to these shares in the exercise of its limited criminal jurisdiction to decide whether the accused persons committed criminal breach trust."
4. In the instant case also, the plaintiff is claiming ownership of these five vehicles as mentioned above which could only be decided in a civil proceedings as a criminal Court is not competent to decide question of title. Therefore, to the said extent, this suit is maintainable. In this connection, reference could be made to the case of Central Cooperative Bank Ltd. Sargodha (PLD 1970 SC 343).
The scope of section 516-A, Cr.P.C. Was also considered in detail by a learned division Bench of this Court comprising Fakhruddin G. Ibrahim and Ajmal Mian, JJ. (as their lordships then were) in the case of Muhammad Yousuf (supra) where reference was made to several case law and as a result following principles were deduced:-- "6. On the basis of the above rulings the following principles can be deduced:
(i) that if an article is recovered from a person against whom there is no allegation of any crime, the custody of the same to be entrusted to such person on Superdari, and P.R. Bond.
(ii) that if an article is recovered from a person and if it is clear that the article was stolen, the same may be handed over to the owner against Superdari, and P.R. Bond.
(iii) that an order under section 516-A, Cr.P.C. Is an interlocutory order which can be varied by the trial Court even before the disposal of the case, if circumstances so warrant.
(iv) that the criminal Courts are not competent to investigate into the question of title as their jurisdiction is confined under section 516-A, Cr.P.C. Or for that matter under section 517, Cr.P.C. To the determination of the entitlement to possession and not title to the property.
(v) that the question of ownership is to be determined by a competent civil Court.
(vi) that an erroneous view taken by a trial Court or by a revisional Court while deciding an application under section 516-A, Cr.P.C. Cannot attract the Constitutional jurisdiction of a High Court."
5. In view, of the above principle of law, it was contended by Mr. Arfin that since the said vehicles were not recovered from the present plaintiffs and since the plaintiffs are seeking recovery of these vehicles on the basis of ownership these aspects are not covered by the provisions of section 516- A, Cr.P.C. It is to be seen that trial Court before whom Crime No,151 of 1996 is being tried is not an ordinary criminal Court as defined by the Code of Criminal Procedure. It is a Special Court established and constituted under the Ordinance, 1984. Section 12 of the Ordinance, 1984 provides that the provisions of the said Ordinance shall have effect notwithstanding anything contained in the Criminal Procedure Code or any other law for the time being in force. Thus, while invoking section 516-A, Cr.P.C. Before the Special Court constituted under the Ordinance IX of 1984 the provisions of section 7 thereof not be ignored. In support of this view, I would like to refer to a decision of a Full Bench of Hon'ble Supreme Court in the case of Allied Bank of Pakistan Ltd. v. Khalid Farooq (1991 SCMR 599 at 620) where it was observed, inter alia, that section 12 of the Ordinance, 1984 protects the provisions of the same to the extent that they clash or come in conflict with the provisions of the Cr.P.C. Or any other law. And where they do not clash or come in conflict, the provisions of Cr.P.C. In an appropriate case prevail. The case of Allied Bank (ibid) was reconsidered in respect of section 497/498, Cr.P.C. And the rule was modified to that extent in the case of Syed Qaim Ali Shah (1997 SCMR 2192) without modifying the interpretation of section 12 of the Ordinance, 1984. For the sake of advantage, section 7 of the Ordinance IX of 1984 is reproduced as follows:-- "7. Transafer of property void.---(1) After a Special Court has taken cognizance of a scheduled offence alleged to have been committed by an accused person, such person or any relative of such person or other person on his behalf shall not, without the previous permission in writing of the Special Court, transfer, or create a charge on, on any movable or immovable property owned by him or in his possession; while proceedings are pending before the Special Court; and any transfer of, or creation of a charge on such property without such permission shall be void.
(2) Any person who transfers, or creates a charge on, any property in contravention of subsection
(1) shall be punishable with rigorous imprisonment for a term which may extend to three years and shall also be liable to fine."
6. Section 7 of the Ordinance 1984 prohibits transfer or creation of a charge on any movable or immovable property owned by an accused or his relative without prior approval of the Special Court once the Court has taken cognizance of a scheduled offence and any such transaction without prior permission of the Special Court shall be treated to be void. Section 7 (2) has made such transaction of transfer of creation of charge punishable with rigorous imprisonment for a term which may extend to three years and fine. There is another provision in this Ordinance namely section 9 which shifts the burden upon the accused to account for anything in his possession or any of his relatives or any other person on his behalf, to satisfy about its pecuniary sources and if such property is proved to be disproportionate to his known sources of income, it will be presumed that such accused is guilty of a scheduled offence and his conviction shall not be invalid by reason that it was based solely on such terms. If provisions of sections 7 and 8 of the Ordinance, 1984 are read in conjunction, they give an effect that recovery of any movable or immovable property, either from the possession of accused or any of his relatives, is an element of proof against the accused who is facing trial before the Special Court. Both the provisions show that even if any property stands in the name of a relative of such accused for which he does not satisfactorily account for, a presumption is to be, drawn that the accused is guilty of the alleged offence. These provisions of law distinguish the Special Court constituted under the Ordinance, 1984 from an ordinary criminal Court established under the Code of Criminal Procedure.
7. Generally, mandatory injunctions are granted under the provisions of section 55 of the Specific.
Relief Act, 1877 read with sections 94 and 151, C.P.C. Such discretion is to be exercised rarely and in exceptional cases. If any reference is needed, please see Khan Muhammad Niazi v. Habib Bank Ltd.
And 3 others (1997 MLD 1304). It is granted to prevent breach of an obligation if the Court feels it necessary to compel the performance of certain acts and which the Court is capable of enforcing the same. No plausible reason has been shown for not approaching the Special Court and for invoking provisions for grant of mandatory injunction. In the instant case, the F.I.A. On the direction of this Court has filed copies of the registration documents of these vehicles. Some four vehicles are in the name of plaintiffs company which is a private limited company having two directors who both are real sons of accused Abdul Qadir Tawakkal and brothers of other accused Rafiq Tawakkal of Crime No,15 of 1996, F.I.A. (C.B.C.), Karachi. It is an admitted position that Fareed Tawakkal and Noor Tawakkal are the only two directors of plaintiff's company and both are real sons of accused Abdul Qadir Tawakkal. Therefore, they are covered by the term "relatives" used in section 7 and 9 of the Ordinance, 1984. It is not disputed that all these vehicles were seized from the residence of accused Abdul Qadri Tawakkal and his other son who is also co-accused. There may arise a question for the determination of the Special Court that if these motor vehicles really belong to the plaintiff company then why they were stationed at the place owned by the accused of Crime No,15 of 1996. This being the situation, such question may require consideration at a later stage before the Special Court in order to prove or disprove guilt of accused of Crime No,15 of 1996. Thus, it will be a question at trial before the Special Court (Offences of Banks), Sindh, whether these vehicles were purchased from the amounts obtained fraudulently and through misrepresentation from N.D.F.C.
As alleged in the F.I.R. ? In my tentative view, there appears no bar to consider section 516-A, Cr.P.C.
Alongwith sections 7 and 9 of the Ordinance, 1984 by the Special Court constituted under the Ordinance, 1984 while deciding an application seeking return of. a movable property by an accused or his relative without touching the question of title. But where the prosecution alleges that any such property belongs to the accused and that his son is only benami owner, such will be a question at trial. There appears no bar insofar the Special Court is concerned to look into question of ownership where prosecution alleges an accused to be owner of any property seized by them.
8. As a result of above discussion, I am of the considered view that the criteria of deciding an application under section 516-A, Cr.P.C. By an ordinary criminal Court will not apply before the Special Court which, while deciding an application under section 516-A, Cr.P.C. Would be competent to look into the provisions of sections 7 and 9 of the Ordinance, 1984 and thereafter to pass an appropriate order. This aspect of the present case distinguishes it from the facts of the reported judgments as cited by Mr. Arfin. It is correct that a criminal Court is not permitted to decide the question of title which rule is not fully applicable to the Special Courts constituted under the Ordinance, 1984 which is competent to invoke the provisions of sections 7 and 9 in order to deal with the properties, movable or immovable, recovered or seizd from the accused or from any of his relatives. The facts of this case as noted above do not warrant grant of a mandatory injunction at this early stage. It would be open to the plaintiff, if so advised, to approach the Special Court to seek recovery of motor vehicles. This being the factual and legal position, I am not inclined to grant this application.
9. Upshot of the above discussion is that this application is dismissed. In case plaintiff approaches the Special Court under section 516-A, Cr.P.C., the learned Presiding Officer thereof will be free to decide the same without being influenced by any comments or observations made hereinabove.