' The facts relevant to this order are that respondent No.3-Muhammad 'ghat Rench purchased Toyota Corolla, Chassis. No.9035052, Engine No.3017444, GL Model 1997, from Citibank, Karachi, on 10-6-2002 and started paying price through instalments. Thereafter, he (respondent No.3) entered into an Agreement for the sale of the said car with defendant No.2Safdar Hussain. After full payment by the purchaser the bank issued NOC in favour of seller, who in turn signed letter of transfer in favour of respondent No.2. The latter then demanded the delivery of the car but respondent No.3 did not deliver the same to him as, according to him, Muhammad Qasim and his sons had allegedly kept the car in their possession. Respondent No.2Safdar Hussain complained to S.S.P., ACLC, Karachi, alleging therein that the vehicle was in illegal possession and use of Messrs.
Muhammad Qasim son of Haji Muhammad Memon and his sons.
2. The complaint was incorporated in 154, Cr.P.C. Book and the investigation followed. When the investigation was going on Iqbal son of Muhammad Qasim filed a civil suit before 1st Sr. Civil Mudge, Karachi (South) for declaration and injunction claiming the said car to have been purchased by him from respondent No.3-Muhammad Iqbal Rench under Agreement of Sale. The Court directed the maintenance of status quo on 28-5-2003. However, ultimately the plaint of the suit was rejected under Order VII, rule 11, C.P.C. The appeal against that order was also dismissed for non-prosecution on 22-11-2003. Applicant's learned Advocate states that an application for restoration of the said appeal is pending.
3. As the status-quo order was operating the investigating agency did not recover. The car in respect whereof the offence was alleged to have been committed. They, however, sent Haji Muhammad Qasim for trial keeping his son Iqbal in column No.II.
4. Safdar Hussain-respondent No.2, the complainant filed an application under section 516-A, Cr.P.C. Before the learned trial Court i.e. Vllth Mudicial Magistrate, Karachi (South) for recovery of the car and delivery thereof to him on Superdari. As first arrangement the learned Magistrate passed interim order dated 12-3-2004 directing the Investigating Officer to recover the car and produce it before the Court. It was expressly mentioned in that order that the status quo granted by Civil Court was no more operational.
5. Iqbal son of Muhammad Qasim assailed that interim order through Revision Application No.15 of 2004, which was dismissed by the learned VIIth Additional Sessions Mudge, Karachi (South) on 25- 3-2004. Both of the orders have been assailed through present miscellaneous application under section 561-A, Cr.P.C.
6. After notice to the respondents, arguments have been heard for deciding the application at Katcha Peshi stage.
7. Being conscious of the position that order passed in revision has been assailed, Syed Nasir Hussain Mafferi contended that an application under section 561-A, Cr.P.C. Does lie against illegal orders and the order, without jurisdiction. In support of his contention, he has referred to the case of Muhammad Shafique v. Abdul Hayee 1987 SCM R 1371 and the case of Mst. Khalida Rehman v.
Muhammad Aqil PLD 1988 Karachi 85.
8. Syed Nasir Hussain Mafferi, contended next that the Mudicial Magistrate seized of the case was competent to pass order relating to the custody of property already seized but he was not competent to first get the property seized from a person other than accused and then pass orders about its custody on Superdari. He referred to the provisions of section 516-A, Cr.P.C. And contended that those clearly speak of the property which has been used for commission of any offence and is produced before the Court during inquiry or trial but in this case the car in question is not alleged to have been used in the commission of any crime nor the same had been produced before the Court, therefore, it had no authority to pass the impugned order.
9. Sheikh Mawaid Mir, learned Advocate appearing for respondent No.2 defended the impugned order by stating that the trial Court has authority to pass any order relating to the custody of the property with regard which an offence has been committed and present is the case where the offence is expressly alleged to have been committed in respect of the car in question. According to him the recovery of the property during investigation is not the condition precedent for passing any order under section 516-A, Cr.P.C.
10. Sheikh Mir Muhammad, learned Advocate representing respondent No-.3 (the original owner of the car) stated that the contentions of respondent No.2 were all correct.- He stated that although respondent No.2 had purchased the car and made full payment and was entitled to get it but the illegal acts of Qasim and his sons Iqbal and Mamal stood in the way as they first took out the car in their custody illegally and then were using it without any legal right.
11. Miss Akhtar Rehana, learned counsel for the State supports the arguments of applicant's learned Advocate.
12. Undisputedly the car was originally owned by respondent No.3. He admits to have sold it to respondent No.2. Also he admits that he was ready to deliver the vehicle to purchase Safdar Hussain-respondent No.2 but was prevented from doing so due to illegal occupation -of.
Muhammad Qasim and his sons Iqbal and Mamal. The allegations in the F.I.R. Were also of unauthorized occupation over the car and illegal use thereof. The vehicle is central issue in the matter.. Entire case moves around it. Allegations are that the offence has been committed with regard to that property. Therefore, the competency of the trial Court to pass any order relating to its custody under section 516-A, Cr.P.C. Cannot be questioned. It is surely competent to pass an order about the custody of a property in respect whereof an offence is alleged to have been committed.
13. After the above conclusion it is to be seen as to whether the trial Court could pass an order issuing direction for seizure of the car. Obviously, when the Court passes an order about the custody of a proper first of all its possession is to be recovered. Without recovering the possession of a property there can be no order about custody thereof. The order about temporary custody of the car without its recovery would lead to some other illegal activities as the people would be left at their choice for implementing the order. In present case the accusation was against Haji Muhammad Qasim and his two sons and in the result of investigation he has been sent for trial.
14. In view of this the interim order passed by the trial Court for having the car first in custodia legis does not suffer from any illegality. Obviously the further orders relating to its custody are yet to be passed in accordance with law. For the present the criminal miscellaneous application is meritless and is dismissed.