' The facts leading to this order, as appear from the record, are that the Mini Bus Registration No.JE- 2510 Engine No.3472 Chassis No.200457 was purchased by Kamran Wasim son of Naseem Irfan in 1980 and the same was registered in his name. Thereafter the vehicle went on changing the hands on the basis of transfer letter under the practice among the transporters about the sale of the vehicles on instalment basis.
2. Lastly the dispute about the possessory rights over the vehicle started between Bibi Khatoon and Gul Akbar. The former pleads that she had purchased the Mini Bus from one Ashraf on open letter and paid full price of Rs.3,00,000 to him. Thereafter, the vehicle needed repair and she obtained loan of Rs.2,00,000 from money lender Guldad and Gul Akber depositing original documents of the vehicle with them as security. That due to dispute over the repayment of the amount specially the interests applicants Gul Akber, and Guldad snatched the vehicle from her and she started complaining to police authorities.
3. It will be relevant to mention here that Chaki Wara Police initiated proceedings under section 145, Cr.P.C. In respect of the Mini Bus. By order dated 10-1-2002 Mst. Naseem Akbar, the 9th Judicial Magistrate, Karachi (South) handed over the custody of vehicle to Gul Akber in a result of compromise between the parties.
4. In January, 2003 Gul Akber, the applicant, filed a civil suit being Suit No.157 of 2003 against respondent Khatoon Bibi and S.H.O. Chakiwara Police Station for injunction restraining them from harassing him and snatching or seizing the vehicle without any legal orders.
5. After that Bibi Khatoon filed a direct complaint against Gul Akber for the offences of snatching the vehicle from her and issuing threats of death in which the order of the seizure of the vehicle as case property was passed. When the Mini Bus was seized and produced before the Court applicant Gul Akber filed an application for handing over the same to him. That application was disposed of by order dated 4-7-2003 whereby the Mini Bus was kept in custodia legis and the proceedings in the complaint postponed sine die till decision in the civil suit. That order has been assailed through present revision application.
6. The learned Advocate for the applicant contends that the vehicle has already been transferred in the name of Gul Akbar and the same was recovered from his possession, therefore, the learned Ilnd Additional Sessions Judge, Karachi (South) should have delivered the same to him. According to the learned Advocate the orders of keeping the vehicle in Court custody is not legal.
7. Mr. Umer Farooq the learned Advocate for Bibi Khatoon has supported the impugned order except the post oponement of the case till decision of the civil suit. He contends that the petitioner who is the money lender carrying on illegal business had snatched the vehicle from Bibi Khatoon illegally in order to compel her to pay him Rs.5,27,000 in place of Rs.2,00,000 which she received from him as loan for repair of the vehicle. Thereafter he managed the transfer of the vehicle in his name fraudulently on the basis of documents kept with him as security of loan. He further contended that the poor lady was under tremendous pressure, therefore, she gave in writing before the Magistrate in the proceedings under section 145, Cr.P.C. That she will get back the Mini Bus from Gul Akber after making full payment to the extent of Rs.5,27,000 which proceedings were corum non judice and the compromise was also void. According to the learned 'Advocate the compromise and the order in consequence thereof were void for an other reason also as Gul Akber could not enforce the illegal and void contract of money lending through the Court.
8. Mr. Umer Farooq further contended that in the case for snatching of the vehicle, the Court was fully justified in recovering the vehicle robbed from the lady and keeping in custody of Court in order to safeguard the interests of both of the parties.
9. The learned Advocate, however, did not support the last part of the order whereby the proceedings in the complaint were adjourned sine die. He argued that the civil suit filed by the applicant had become infrucutous after the seizure of the vehicles under judicial order. Elaborating, the contention the learned Advocate contended that the prayer in the suit was that the vehicle should not be seized without legal order and Gul Akber, the plaintiff should not be pressurized without due process of law. In fact both the prayers were interconnected and the plaintiff wanted that neither he should be harassed nor the vehicle should be seized without any legal orders which prayer became infructuous after the seizure of the vehicle under the order of the Court, therefore, the adjournment of the complaint sine die till decision of the suit was neither proper nor justified.
10. As regards the proceedings under section 145, Cr.P.C. The learned Additional Sessions Judge, Karachi (South) has rightly ignored those proceedings and order therein for thg simple reason that proceedings under section 145, Cr.P.C. Can only be initiated in respect of immovable property and the Mini Bus is a movable property. The proceedings before the Magistrate were, therefore, corum non judice and the order was void.
11. While arguing this revision application the learned Advocate representing the applicant remained very guarded in respect of the transaction of the loan and the question of its repayment together with huge interest alleged by Bibi Khatoon in her complaint as the cause and the motive behind the alleged offence of snatching of the vehicle. He simply kept silence in that respect and did not answer the contention of lady's learned Advocate in negative or affirmative.
13. In presence of the allegation against the applicant that he forcibly snatched the vehicle from the possession of lady respondent due to non-payment of the part of the loan amount and huge interest and that he managed its transfer in his name fraudulently and illegally taking undue advantage of the presence of the documents kept with him as security of loan. The learned 'Ind Additional Sessions Judge, Karachi (South) kept the vehicle in Courts custody safeguarding the interest of both of the parties.
14. No doubt, section 516-A, Cr.P.C. Empowers the Court to deliver on superdari, during pendency of trial, any property regarding which any offence appears to have been committed but it does not require the Court to do so essentially and in each case. The power is discretionary and is to be used judicially taking care of the rights and interest of the claimants. Also the property is not necessarily to be given on superdari to a person from whose possession it is recovered. The law favours rather requires the delivery of property to the person entitled to its possession. If the learned trial Court considered it proper not to hand over the Mini Bus to any of the parties on superdari and keep it in Court's custody till the conclusion of trial expressing clearly that the conduct of the applicant was not satisfactory and the delivery of vehicle to him on superdari will create complications, it cannot be said to have acted without jurisdiction or illegally.
15. Obviously, the order in respect of the custody of the vehicle shall be passed by the Court under section 517, Cr.P.C. In favour of a person/party found entitled to its possession.
16. As regards the second part of the order whereby the proceedings in the complaint have been adjourned sine die the arguments of Mr. Umer Farooq have much substance in them. Suit filed by Gul Akber was for limited purpose to prevent the recovery of vehicle from him without any legal order. It is for the learned Civil Court to take its own independent decision in accordance with law as to whether the cause of action in the civil suit is existing or has ceased to exist.
17. However, the civil and the criminal proceedings are to be decided on their individual merits in the light of evidence produced by the parties. The evidence recorded in one case cannot be used in the other nor the judgment in one case will have binding force upon the other. As held by the Hon'ble Supreme Court in Muhammad Akbar v. The State (PLD 1968 SC 281) and in Manik Jee v.
Fakhur Iqbal and B another (1968 SCM R 198) normally the criminal proceedings should not be postponed pending the disposal of civil litigation connected with the subject-matter except in the case where it is clear that the criminal liability is dependent upon the result of the civil litigation or it is so closely connected with it that there is danger of grave injustice being done in the case of conflicting decision between the civil Court and the Criminal Court. In the present case the criminal case relates to the snatching of the vehicle and issuing threats of death to Bibi Khatoon and the civil suit is simply for preventing the seizure of the vehicle without any order of the Court. Therefore, the criminal liability of Gul Akber in the complaint filed by Bibi Khatoon is not dependent upon the result of civil suit.Filed by the former. Aslo, in view of the nature of the criminal case and the civil suit there is no possibility of conflicting decisions.
18. Thus the adjournment of the private complaint sine die was neither proper nor justified. On the contrary, the circumstances desire the quick progress in the trial and early decision of the case.
19. In the result of above discussion, the impugned order is maintained except the adjournment of private complaint till decision of the civil suit filed by Gul Akber which part of the order is set aside.
The learned 'Ind Additional Sessions Judge, Karachi (South) is directed to expedite the trial proceedings in the case and decide it within two months under intimation to this Court through M.I.T. With this order, the revision applications stands disposed of.