' Through this Constitutional petition the petitioner seeks setting aside of the order dated 4-6-2002 passed by the learned Judicial Magistrate and the order dated 20-6-2002 passed by the learned Sessions Judge, Lahore by declaring the same as illegal and unlawful.
2. The brief facts of the case are that the petitioner claims that he purchased Toyota Corolla Ca.
Model 1987 bearing Registration No,B-1277, Sawabi (Old No,SBD-7 Swabi) from Respondent No,5, through respondent No,7, who running Show Room and respondent No,5, had parked the same there for its sale. The petitioner paid total amount of Rs,2,25,000 to respondent No,5 and he handed over the physical possession of the car along with registration book, transfer deed/transfer letter and sale receipt. All these documents were thumb marked by respondent No,6 as a witness.
3. The petitioner claims that the token tax for certain period had not been paid which was the obligation of respondent No,5, to be paid up-to-date. The petitioner handed over the original registration book to respondent No,5 for the clearance of the token tax and respondent No,5 undertook to make the payment within few days but did not return the original book to the petitioner and demanded an additional amount of Rs,50,000 for handing over the book to the petitioner which he did not accept. The petitioner was enjoying the possession of the car without their being any hindrance from any side. Respondent No,5 was in negotiation with the petitioner and punchayat was convened between the parties but suddenly on 19-1-2002 the car was taken into possession' by the staff of respondent No,4 near the Chowk of Lahore Hotel . Showing it as a suspected property and to examine the same from the Forensic Science Laboratory. The petitioner filed an application for the superdari of the car before the Special Magistrate, Model Town Courts, Lahore. With the similar prayer an application was also moved by respondent No,5. Both the applications were dismissed by the learned Judicial Magistrate vide order dated 13-4- 2002. Both the parties aggrieved by the said order filed revision petitions which were accepted by the learned Sessions Judge with the direction to the learned Judicial Magistrate to decide both the applications of petitioner and respondent No,5 on merits afresh and these applications shall be deemed to be pending before him. The learned Judicial Magistrate in order to resolve the factual controversies called in the witness-box respondents Nos. 5 and 6 and passed the impugned order by which has handed over the Superdari of the car to respondent No,5 while the revision petition filed by the petitioner has been dismissed by the learned Sessions Judge vide order dated 20-6- 2002.
4. Learned counsel for the petitioner contends that both the orders passed by the learned Judicial Magistrate and the learned Sessions Judge are illegal and unlawful being based on misconception of facts and law. It is further contended that the petitioner was in possession of the car and had a better claim over the disputed car and the consistent view of the Courts is to hand over the possession of the car to the person who lastly possessed the same,. He relies on judgments reported as "2001 PCr.LJ 428", "1994 PCr.LJ 2148" and "1986 SCMR Page 1539". It is further contended that the procedure adopted by the learned Judicial Magistrate of recording the statement of respondent No,6 is illegal and unlawful. The petitioner was not afforded an opportunity of cross- examination on respondent No,6 who has admitted his signatures and thumb impression as a witness on the said agreement but has denied the contents hence the inference has to be drawn that these documents have been executed and signed and the onus was on respondents Nos.5 and 6 to prove that the documents were not genuine, thus prima facie the petitioner has succeeded in making out the case for the entitlement of the car but the learned Courts below have acted illegally by not accepting the application of the Superdari of the petitioner. It is further contended that the petitioner was proceeded under Efficiency and Discipline Rules and has been exonerated. The case has been registered by the Anti-Corruption Department and it cannot be made basis for not granting the superdari to the petitioner. It is further contended that the action of the police was illegal hence the car may be taken from the custody of respondent No,5 and may be handed over to the petitioner on Superdari by accepting this petition.
5. I have heard the arguments of the, learned counsel for the petitioner at length and also perused the impugned orders including the documents attached with this petition. The learned Judicial Magistrate has adopted the procedure in order to unearth the truth and has come to a prima facie view that respondent No,5 has better case for the grant of superdari of the vehicle to him as his name still exists, according to the registration book, as owner and he was also in possession of the said book admittedly since 'its allege respondent No,6 who was the witness to the deal has denied the contents of the documents which are in possession of the petitioner. The learned Judicial Magistrate has satisfied himself and has come to a conclusion prima facie fmding the better claim of respondent No,5 over the disputed car. Similarly grounds which weighed before the learned Sessions Judge for the disposal of the revision petition of the petitioner by dismissing the same also are cogent and when the car is still in the name of .The respondent No,5 which has never been transferred to the petitioner it cannot be handed over to him on the basis of the documents which he claims to be genuine but the other party denies the genuineness of these documents. Mere possession of the said documents does not entitle him for the grant of superdari specially was there is no case pending against the said property in any Court of law. I do not find any reason for disagreeing with the view taken by the Courts below on the time of disposal of the car on superdari to respondent No,5. Prima facie case has been found and superdari has been given to respondent No,5. The petitioner can avail the remedy by filing a civil suit before the learned Civil Judge and interim relief he claims to be entitled, as the final verdict on the documents which are being relied upon by the petitioner can only be given by the civil Court which is also competent to pass the appropriate orders for the interim relief as well after hearing both the parties while considering the material and grounds. The impugned order regarding superdari of the car is not a final order but is an interim arrangement and the civil Court still can beside the issue in a judicious manner by affording equal opportunities to both the parties regarding claim over the ownership of the car.
6. For the foregoing reasons, this petition has no merit and is dismissed in liming as, respondent No,5 has a better claim over the petitioner.