' This Constitutional petition has been filed by Muhammad Akmal Shah to challenge the order, dated 12th of July, 2003 passed by a learned Additional Sessions Judge, Lahore, rejecting petitioner's revision petition whereby he had assailed the order, dated 10th of June, 2003 of a learned Judicial Magistrate, 1st Class, Model Town, Lahore, recalling an earlier order, dated 29th of July, 2002 of her predecessor-in-office whereby he had given to the petitioner on Superdari Suzuki Khyber green coloured Car bearing temporary Registration No,LOX-154, Chassis No,A-121048, Engine No,433437 and simultaneously directing initiation of proceedings under, section 406, P.P.C. For violation of the condition in the order of Superdari as well as of the terms of the surety bond executed pursuant thereto.
2. The case of the petitioner is that the car in dispute was purchased by one Sohail Ahmed who, later on, sold it to one Shahzad Ahmed son of Zahoor-ud-Din, resident of House No,249, G.T. Road, Baghbanpura, and Lahore. The car was stolen away in the afternoon of 8th of July, 1996, when he had parked the same outside the house of his friend, Nadeem Beg, located in Union Park, Lahore.
On information laid by Shahzad, a case under section 381-A, P.P.C. Was registered on the same night at Police Station Millat Park, Lahore vide F.I.R. No,103 of 1996. It is mentioned in the petition that subsequently, to be exact on 12th of July, 2001, the car was recovered from one Shakeel Ahmed and F.I.R. No,369 of 2001 was registered at Police Station Gulberg, Lahore, under sections 471/420/468, P.P.C. Shahzad Ahmed, from whose custody the car was stolen on 8th of July, 1996 is shown to have filed an application before the Illaqa Magistrate seeking Superdari of the car. It appears, the Magistrate called for a report from Anti-Car Lifting Staff which was submitted on 22-7-2002 whereafter the following order was passed on 29-7-2002 by the learned Magistrate:-- "Present: petitioner in person.
' The S.H.O. Millat Park has failed to produce the record. The petitioner moved an application for Superdari of vehicle temporary No,LOX-154, case property of case F.I.R. No,103 of 1996, offence under section 381-A, P.P.C. Police Station, Millat Park, Lahore. The F.I.R. Was lodged on the application of the petitioner. The petitioner also produced original sale certificate, original invoice and original temporary allotment of registration. The temporary allotment is in the name of Mr. Arshad Butt. The petitioner produced original file of the above mentioned vehicle. It appears that he purchased the aforesaid vehicle. The Superdari is given to the petitioner and at the same time he is directed to get its transfer in his name within one month by producing sufficient proof before the Motor Registration Authority, failing which the Superdari shall be automatically cancelled. The petitioner is directed to submit surety bond to the tune of Rs,2,00,000 in the Court so as to bound down him to produce the said vehicle as and when directed by the Court. The original file is returned to the petitioner."
' As a consequence of the afore-quoted order, formal Superdginama was finally delivered on 6-8- 2002, as is apparent from the note recorded on the reverse of the Superdginama. The case of the petitioner is that Shahzad Ahmed then handed over the car to him for which purpose a special power of attorney had been executed on 8-7-2002 in his favor by the said Shahzad Ahmed. It is also the case of the petitioner that the car was then got transferred in the name of above-named Sohail Ahmed on 29-8-2002, as per directions. Of the Court contained in the order reproduced above.
4. Respondent No,2 (Inspector, Anti-Car Lifting Staff, City Division, Lahore) through D.S.P., Anti-Car Lifting Staff filed on 24-3-2003, an application before the Magistrate for recall of the order, dated 29-7-2002 and consequently cancellation of Superdari of the vehicle from the name of Shahzad Ahmed. Notice of the application was given to the Superdar. After providing an opportunity of hearing to the Superdar to show cause why the earlier order, dated 29-7-2002 should not be recalled and action initiated against him under section 406, P.P.C., the impugned order, dated 10- 6-2003 was passed by the learned Magistrate. The Superdari of the car in dispute in favor of the petitioner was cancelled and proceedings against the Superdar under section 406, P.P.C., were ordered to be initiated. Muhammad Akmal shah, petitioner herein, then challenged the afore mentioned order by means of a revision petition which was dismissed by a learned Additional Sessions Judge, Lahore, vide the impugned order, dated 12-7-2003. Hence this Constitutional petition.
3. Before proceeding further with the matter, it needs to be clarified that though application for Superdari of the car was filed in the name of and ex facie under signatures of Shahzad Ahmed and in consequence of the order, dated 29-7-2002 Superdginama was also drawn up in the name of Shahzad Ahmed but, in fact, it was the petitioner who alone was behind the entire show, obviously on the basis of special power of attorney, a photostat copy of which has been annexed with the writ petition. The stamp paper on which the special power of attorney was drawn up was purchased on 8-7-2002, which was prior to the application for Superdari, its date being 20-7-2002.
In the special power of attorney, it was mentioned by Shahzad Ahmed that due to his personal preoccupations and indisposition he had appointed and constituted Syed Muhammad Akmal Shah as his Special Attorney with regard to the vehicle in question, authorizing him to search for the vehicle; to pursue the case; upon recovery of the vehicle, to dispose of the same or to keep it in his own use; to engage counsel and to pursue legal remedies before the police and in Courts. Inter alia, following averments in writ petition have further crystallized the position:-- "That no one has turned up as claimant of the said vehicle that was given on Superdari to the petitioner.
' That respondents 1 and 2 had no locus standi and thus no authority to move an application for the cancellation of Superdari of the petitioner in the instant case.
' That the petitioner being owner of the vehicle got the Superdari from the competent Court in previously registered above mentioned theft case.
' The circumstances favor the petitioner and require the continuation of Superdari of the said vehicle with him.
' That Superdari of the said vehicle was provided to the petitioner on the basis of a surety bond."
' There are similar other statements in the writ petition which need not be adverted to. It is thus established that Shahzad Ahmad had not approached the Court for taking the car on Superdari, but it was the petitioner who was, in fact, the applicant and that he had obtained the car on Superdari. In the application, it was stated by the applicant-Inspector that when he formally took the car into possession under section 550, Cr.P.C., on suspicion that its Chassis and Engine numbers were not original and that when he got the car bearing Registration No,AAL-476 (Karachi), which was taken into possession by him under section 550, Cr.P.C., examined from the Forensic Science Laboratory it was found that Chassis number plate had been cut and removed and was substituted by another iron sheet bearing No,SA310PK 440262 and had been welded abnormally.
The Engine number could not be deciphered due to deep fillings. He, therefore, registered a case at Police Station Gulberg, Lahore under sections 420/468/471, P.P.C. Vide F.I.R. No,369 of 2001, against Shakeel Ahmed son of Sakhi Muhammad, Caste Bhatti, resident of Joyanwala, District Sheikhupura, from whose possession the car was taken into custody. The case of the applicant, Inspector was that the car was parked in the Warehouse and, without his knowledge, Superdar, in connivance with Muhammad Arshad, Moharrir, Anti-Car Lifting Staff, obtained Superdari of the car by practising fraud on the Court inasmuch as the said vehicle was not the case property of F.I.R. No,103 of 1996 lodged by Shahzad Ahmed at Police Station, Millat Park, Lahore.
5. During hearing of the application, the learned Magistrate directed the Superdar to produce the car in dispute in Court on 7-6-2003. The car was, however, not produced, and the Superdar informed the learned Magistrate that he had sold away the same to one Dr. Muhammad Arif. But for the obligations which the petitioner had incurred in this episode, as well as the initiation of criminal proceedings under section 406, P.P.C. And the contemplated action for violation of the surety bond, he would not have perhaps, filed revision petition or this Constitutional petition. For the obvious consequences of his acts, he is now endeavouring; rather striving hard to save himself from punishment, otherwise having already sold the car to Dr. Muhammad Arif, as is mentioned in the impugned order of the learned Magistrate, he should have simply kept quiet.
6. Be that as it may, learned counsel for the petitioner has contended that:--
(i) The first order, dated 29-7-2002 whereby the car was given on Superdari to the petitioner was immune from challenge, at least, the same could not be reviewed, and, therefore, the subsequent order of the learned Magistrate, dated 10-6-2003 whereby Superdari has been cancelled from the name of the petitioner, is without jurisdiction and consequently liable to be declared as without lawful authority by this Court in its Constitutional jurisdiction.
(ii) Further sale/disposal of the car by the petitioner, who was its ostensible owner, did not attract the provisions of section 406, P.P.C. Inasmuch as the act of the petitioner did not constitute criminal breach of trust and, therefore, the initiation of proceedings under the said provision was patent illegality and thus liable to set at naught.
' On 12-7-2001, when respondent No,2 took into custody the car in question under section 550, Cr.P.C., Registration No,AAL-476 was being displayed on it by Shakeel Ahmed. On verification from the Excise and Taxation Department, Karachi, and upon receipt of report of Forensic Science Laboratory, Lahore, a case was registered against Shakeel Ahmed at Police Station Gulberg, Lahore, under sections 420/468/471, P.P.C. Vide F.I.R. No,369 of 2001. On 20-7-2002, the application was filed by the petitioner, claiming to be special attorney of Shahzad Ahmad, whose green coloured Suzuki Khyber Car 1995 Model, bearing temporary Registration No,LOX-154, ChassisNo,433437, Engine No,A-121048 had allegedly been stolen on 8-7-1996 and for the theft of which F.I.R. No,103 of 1996 under section 381-A, P.P.C. Had been lodged by him at Police Station Millat Park, Lahore, and thus seeking Superdari of the car in dispute which was with the Anti-Car Lifting Staff. The order, dated 29-7-2002 of the learned Magistrate shows that he proceeded to pass the order on the basis of report submitted on 22-7-2002 by Muhammad Irshad, Moharrir, Anti-Car Lifting Staff, Lahore, wherein he had simply stated that "Shahzad" had identified the car out of vehicles parked in the Warehouse, as belonging to him. Needless to mention that Shahzad was, in fact, no more in the picture, he having already appointed the petitioner as his Special Attorney and, as shown above from the contents of the writ petition itself, it was the petitioner who had applied for Superdari and not Shahzad Ahmed. Therefore, the report of Muhammad Arshad, Moharrir, Anti-Car Lifting Staff, Qilla Gujar Singh, Lahore that Shahzad Ahmed had identified the vehicle in question as the same car which was owned by him and which had been stolen on 8-7-1996, was prima facie incorrect.
When the order, dated 29-7-2002 was passed by the learned Magistrate, even record of case F.I.R.
No,103 of 1996 was not before him because it is mentioned in the opening part of the order that "the S.H.O., Millat Park has failed to produce the record". The learned Magistrate then gave Superdari of the car to the petitioner as afore-mentioned. Without going deep into the merits or demerits of the above order, and whether on the basis of the mere report of the Moharrir that the petitioner had identified the vehicle as belonging to him, though according to the petitioner himself he was not its owner and, perhaps, he might not have even seen the car earlier, the fact remains that Superdari of the car was given to the petitioner on conditions that he would execute a surety bond in the sum of Rs,2 lac and would produce the vehicle in Court as and when so directed. The learned Magistrate seized of the application of respondent. No,2 called upon the petitioner to produce the vehicle in Court but he expressed his inability to do so on the pretext of having already sold to one Dr. Muhammad Arif. The learned Magistrate had, in fact, not undertaken the exercise of reviewing the earlier order, dated 29-7-2002, but cancelled Superdari from the name of the petitioner on the ground that by selling away the vehicle, he had violated the condition on which he was given Superdari thereof. In the circumstances, the question arises whether the learned Magistrate was justified in law to cancel Superdari of the vehicle from the petitioner's name on this ground.
Reliance by. The learned counsel for the petitioner on Humayoun Azam v. Ch. Sadiq, Inspector/S.H.O. Police Station, Kunjah 1999 M LD 1636 is inapt. The facts of the precedent case are distinguishable. The petitioner in that case was running the business of renting out private cars to customers under guarantee. The car was rented out to one Javed who later on returned the same and the due rent was paid to the petitioner. After some time when the petitioner was travelling in the same car from Gujranwala to Lahore it was intercepted by the police and was taken into possession on suspicion that the same car had been used, while with Javed, by the accused who committed an offence under section 382, P.P.C. Having found, as a fact, that the vehicle in that case was used only for going to or fleeing from the place of occurrence by the accused of the criminal case, but the petitioner was not' one of the accused of that incident, Superdari of the vehicle was given to him, in particular when there was no other claimant for the same vehicle and the vehicle had been recovered from the petitioner of that case. Here, the facts are quite different. Superdari from B the name of the petitioner has been cancelled on the ground of breach of condition/undertaking on which the vehicle was given to him.##TE
7. It is not the case of the petitioner that when the vehicle in dispute was given on Superdari to him by order, dated 29-7-2002, the learned Magistrate passed the order in the exercise of his powers either under section 517, Cr.P.C. Or under section 523, Cr.P.C. Even otherwise since the wording of the order, dated 29-7-2002 admits of no doubt that it was hedged in by specific and definite conditions, breach whereof was complained to the learned Magistrate, hence, I am inclined to treat the said order as interlocutory in nature and amenable to be recalled upon C breach of the express conditions. Furthermore, I am of the considered view that the order, dated 29-7-2002 was passed by the learned Magistrate in the exercise of powers under section 516-A, Cr.P.C. It is trite law that an order under section 516-A, Cr.P.C. Is in the nature of interlocutory measure resorted to for the purposes of temporary arrangement so that the case property is saved from decay and is handed over to the person ex facie found entitled to its possession which inures till final order is made under section 517, Cr.P.C. Needless to add that criminal Courts are not competent to determine question of title or ownership, which matter falls within the exclusive domain of the Civil Court of plenary jurisdiction.
8. The vehicle in dispute was given on Superdari to the petitioner with an express and unequivocal mandate from the Court that he was obliged to produce the same as and when required to do so.
The vehicle was, in the circumstances, in trust with him, and subject to further orders by the Court. It is the petitioner's own case that he has already sold away the vehicle, obviously in breach of condition on which temporary delivery of the vehicle was given to him. It is no more within his power to produce the vehicle in Court. He has betrayed confidence of the Court. It is inter alia provided in section 405, P.P.C. That whosoever, being in any manner entrusted with property, dishonestly disposes of that property in violation of any direction of law of prescribing the mode in which such trust is to be discharged, of any legal contract, express or implied, which he has made tending the discharge of such trust, commits criminal breach of trust. The assumption that the petitioner was ostensible owner of the vehicle is bereft of any valid foundation. Even the question as to who was entitled to its ultimate possession was yet to be decided at the conclusion F of the criminal case whereas the determination of title/ownership, as observed above, is yet to be decided by the Civil Court of competent jurisdiction.##TE# In Babu Khan v. Crown 1970 SCM R 107, the appellant a railway employee, was entrusted with some stock of cinder mixed with small pieces of coal for sale to the railway servants at a low rate on their securing sanction from the proper railway authorities for purchase, but the appellant dishonestly disposed of some of those cinders in contravention of the directions of the railway by selling them at a higher rate to those who were not in the service of railway and, therefore, not entitled to purchase them. The appellant was convicted.
Their Lordships of the Supreme Court dismissed the appeal by holding that the offence of sale by the appellant of the cinders in violation of the directions given to him prescribing the mode in which the trust was to be discharged fell within the definition of criminal breach of trust as given in section 505, P.P.C. In this view of the matter, the second ground of attack that' the act of the petitioner did not attract the provisions of section 406, P.P.C. Is equally unsustainable.
9. Besides, the petitioner has invoked Constitutional jurisdiction, exercise of which is discretionary with the Court.. As shown above, the petitioner has approached this Court with unclean hands, H rather with a sinister background. He is, therefore, not entitled to the discretionary relief and the petition is liable to be dismissed on this ground as well.
10. Before parting with this case, I would like to add that the menace of car lifting has taken deep roots in the society. Innocent citizens are deprived of their valuable vehicles. Those who indulge in the offence of car lifting are either not apprehended at all, and, if misfortune falls on anyone, he would get himself bailed out without undergoing the rigorous of jail for a long time, and would feel encouraged to make easy money with impunity of not being awarded punishment for years together, because it is of common knowledge that cases of car-lifting hardly reach the Courts of law expeditiously. It is regrettable that in the instant case F.I.R. No,369 was registered in the year 2001 upon recovery of the vehicle from the person named in the F.I.R. Moreover, Superdari was cancelled in the presence of respondent No,2 on 10-6-2003 but the said respondent has taken no steps to retrieve the situation. It is of common knowledge that when an innocent citizen of the country is robbed of his valuable vehicle, of which theft takes place, he seldom gets its back and more often than not the vehicles of which chassis/engine numbers are mutilated, are misused till such time the same become merely scrap, and of no further utility. In the instant case, the vehicle was recovered from a definite person. Despite that, there has been no earnest desire on the part of respondent No,2 to catch the real thief as well as the keeper of the workshop where the chassis/engine numbers of the vehicle had been mutilated. If there has been no lack of interest on his part to perform his statutory functions to investigate the matter in its real direction, the chain of events would have certainly helped him to reach the real culprits. The difficulty to apprehend the original thief of the vehicle arises only in cases where the vehicle is found abandoned or unattended. But, such are rare instances where the criminals who snatch away a vehicle with the purpose of using the same for commission of an offence, use it for committing offence; flee away on the same and finding themselves safe, abandon the vehicle, without wasting time to get its chassis/engine numbers mutilated. Respondent No,2 gave a solemn undertaking in Court that he would now make real efforts, in right direction, to apprehend the real culprits and would make it a test case. Therefore, a copy of this order be sent to the Head of Anti-Car Lifting Staff, Qilla Gujjar Singh, Lahore, who shall supervise the investigation to be carried out by respondent No, 1.
11. Subject to the above observations, this petition is found to be devoid of any merit and is, therefore, dismissed in limine.