Through this criminal revision under section 439, Cr.P.C. the impugned order dated 22-9-2001 passed by Senior Special Judge, Customs, Taxation and Smuggling, Lahore has been challenged. It is prayed that the order may be set aside and the application of petitioner for release of Car No, LXV Toyota Corolla Model 2000 may be accepted.
2. Brief facts of the case are that Muhammad Hanif is a proclaimed offender in case F.I.R. No,158 of 2000 registered on 12-12-2000 at Police Station Sarwar Road, Cantt. Lahore and the proceedings under sections 87 and 88 of Cr.P.C. were initiated against him. During the pendency of proceeding under section 88, Cr.P.C., an application was moved by Customs Department for taking into possession the abovesaid vehicle as the vehicle belonged to said P.O. Muhammad Hanif and it was also owned and possessed by him. The learned Special Judge Customs allowed the application.
Before accepting the applicantion Motor Registration Authority was moved to get information that whether the abovesaid car is owned by Muhammad Hanif, P.O. or not. A computer print was provided by the Authority on 7-8-2001, in which it was mentioned that the above said vehicle is owned by said Muhammad Hanif P.O. after taking into consideration all these facts the learned Special Judge allowed the application and the said vehicle was taken into possession on 7-8-2001.
3. The petitioner moved an application for release of car claiming that the car was owned by him and not by Muhammad Hanif P.O. as it stood transferred in his name before Motor Registering Authority on 13-1-2001. The learned Special Judge after hearing the arguments of both the parties came to the conclusion that the documents so far available on record prima facie, established transfer of ownership to the, applicant/petitioner, but the proclaimed offender Muhammad Hanif as playing hide and seek with the Court. It is also on record that he produced I.D. Cards used by him differently personal documents of the P.O. were recovered from the car, which indicates that the car was used by Muhammad Hanif and it was transferred to brother-in-law of Muhammad Hanif by simply depositing transfer fee. The learned Special Judge came to the conclusion that the detailed inquiry was required regarding ownership of car, however, in the meanwhile the car was directed 'to be handed over to the applicant/petitioner on Superdari subject to furnishing of surety bond in the sum of Rs 5,00,000 and the case was adjourned to i7-10-2001.
4. The learned counsel for petitioner contends that said Muhammad Hanif P.O. was declared P.O. in the beginning of August, 2001 while the car was transferred in the name of petitioner, in January, 2001. Hence the car could not be taken into possession as under section 88 of Cr.P.C. the Court issuing proclamation under section 87 may at any time order attachment of any property movable or immovable belonging to the proclaimedoffender. The learned counsel for petitioner further contends that the words 'belonging to the proclaimed person' mean that the properties owned and possessed:by the proclaimed offender when he is declared proclaimed offender can only be attached and the properties which are not owned and possessed by the proclaimed offender at the time of declaring him as P.O. cannot be taken into possession under the garb of section 88 of the Cr.'P.C. It is further contended that this order was accepted and. the surety bond was presented before the learned Customs Judge by the surety who had documentary evidence that he was man of means and could stand surety for the said amount, but his sale deed was not accepted straightaway in the pretext that the learned Judge would inquire into the affidavit of the sale deed and identity card of the surety before accepting the surety bond, on which Secretary, Lahore High Court Bar Association Rana Mashood, Advocate, who was present alongwith other counsel assured the Court that he was ready and wiling to verify the contents of the surety, but the Court did not accept the same, hence the petitioner has chosen to tile revision petition against the said order that the order, itself, was illegal and no inquiry can be conducted by the Court and the property which is not owned by the proclaimed offender can only be taken into consideration for the purpose of attachment alone. It is further contended that Motor Vehicles Ordinance, 1965 contains the definition of owner in 'section 2 that the person in whose name the recovered vehicle is - registered. Hence in spite of the fact that the petitioner is owner and in possession of the said car is being dragged in an inquiry proceeding which are being conducted through the impugned order, therefore, the order is itself illegal and unlawful.
5. On the , other hand, the learned counsel appearing on behalf of Customs Department has contended that the inquiry can be conducted due to' suspicious circumstances of this case. The petitioner is brother-in-law of Muhammad Hanif P.O., the case was registered on 12-12-2000 and at that time the vehicle was in the name of Muhammad Hanif, who became proclaimed offender and he through a benami transaction or depositing transfer fee had got transferred the said vehicle in the name of petitioner. It is further contended that the vehicle was taken into from the premises of factory of Muhammad Hanif, P.O. and some documents of the P.O. were recovered from the car, in such circumstances the inquiry was felt necessary to be conducted by the learned trial Court and the order is passed with lawful authority and the inquiry is being conducted to determine whether the transfer of vehicle in the name of petitioner is genuine or not or it belongs to Muhammad Hanif P.O. and there is no illegality in the order. It is further contended that computer print was issued by Motor Registering Authority on 7-8-2001 and the vehicle was taken into possession after obtaining permission of the learned Special Judge Customs. The computer print also shows that the petitioner was not owner of the said vehicle on 7-8-2001 and Muhammad Hanif was owner a the said vehicle and the alleged transfer letter has been subsequently introduced, which in the said circumstances is suspicious, hence he prays for dismissal of the criminal revision.
6. I have heard the arguments of the learned counsel for parties and perused the impugned order carefully. It is admitted fact that Muhammad Hanif was declared P.O. and on the application of Customs Department Car. No,LCV III Toyota Corolla Model 2000 was allowed to be taken into possession for the purpose of attachment of movable property as it belonged to the proclaimed offender. It was confirmed from the Motor Registering Authority before issuance of direction for attachment of said car and taking into possession by Customs Authorities that according to computer print taken on 7-8-2001 Muhammad Hanif, P.O. was owner of the said car. According to the Customs Authorities the car was taken into possession from the factory owned by Muhammad Hanif, P.O. and certain documents were also recovered trom the car which show that said Muhammad Hanif was using the said car, when the car was taken into possession and an application was moved by the petitioner claiming that he is in possession of the said car as owner and the car has been transferred in his name on 13-1-2001. On the other hand, the claim of the Customs Authorities is that it is benami transaction and actually the car belongs to Muhammad Hanif, P.O. hence the learned Judge on the basis of documents came to the conclusion that prima facie it is established that the ownership of the car, transfer of ownership to the petitioner was suspicious and the conduct of Muhammad Hanif, P.O., who had been playing hide and seek game with the Court and used frivolous Identity Cards and personal documents of the P.O. were recovered from the car the Court came to the conclusion that the possibility of benami transaction cannot be ruled out and the question whether the car actually belonged to the petitioner or not required a detailed inquiry. Therefore, the Court ordered for such inquiry and in the meanwhile the car was handed over to the petitioner on Superdari subject to furnishing of bond in the sum of Rs,5,00,000. This order was accepted by the petitioner and he produced, bond, according to the learned counsel for petitioner, but the bond was not accepted by the Court in an arbitrary manner, hence aggrieved by this the criminal revision has been filed. I do not find any illegality in the order of the learned Judge Customs as the genuineness or otherwise of the transfer in favour of the petitioner is to be determined and the learned Special Judge has rightly directed to hold an inquiry. ,Under subsections (6-A) and (6-C) of section 88 of Cr.P.C. the Court would entitle to hold an inquiry if an objection is raised to the attachment of any property attached under subsection (6-C) within six months from the date of such attachment. Subsections (6-A) and (6-C) are reproduced as under:-- "(6-A) If any claim is preferred to, or objection made to the attachment of, any property attached under this section within six months from the date of such attachment, by any person other than the proclaimed person, on the ground that the claimant or objector has an interest in such property, and that such interest is not liable to attachment under this section, the claim or objection shall be inquired into, and may be allowed or disallowed in whole or in part: Provided that any claim preferred or objection made within the period allowed by this subsection may, in the event of the death of the claimant or objection, be continued by his legal representative.
(6-C) Every such claim or objection shall be inquired into by the Court in which it is preferred or made: Provided that if it is preferred or. made in the Court of a District Magistrate such Magistrate may make it over for disposal to any Magistrate of the first or second class, subordinate to him."
7. From the bare perusal of said provisions it is obligatory duty of the Court to inquire into the matter if some property which is to be attached or is attached and the objection is preferred in terms of section 88. Such objection would essentially put to the judicial inquiry. For carrying out such inquiry and for the purpose of determination of such claim/objection the Trial Court was required to record evidence on such point by affording full opportunity of proof and rebuttal to both parties. In the case in hand, because the situation has arisen that mere arguments of the competitors are not sufficient for the purpose of formulating a sound opinion regarding claim/objection raised by the parties. As the claim of petitioner was based on transfer deed and the transfer of car in his name one ,month after registration of file 'case against the P.O. and the petitioner being brother-in-law of said P.O. are the facts which show that the petitioner has come to the Court with unclean hands. Possibility of false transfer on behalf of the P.O. to avoid attachment of the property in future cannot be ruled out. Hence in such circumstances, order passed by the learned Judge Customs is lawful exercise of jurisdiction to determine whether the transfer was genuine or was in order to deceive the Court. The learned counsel for petitioner himself has argued that this order was accepted by him and surety bond was produced. In such circumstances he cannot claim that the order is itself illegal. He felt grievance only when the surety bond was not accepted and filed this criminal revision. The petitioner can file fresh surrey toad before the Court and the Court will accept or reject the same after perusal of documents attached by the surety. The impugned order by which an inquiry has been ordered to be held is declared lawful order. This revision petition has no merit and is dismissed.