PLJ 2009 Lahore 321

Present: Syed Shabbar Raza Rizvi, J.

SARMAD IJAZ ANWARI--Petitioner

versus

STATE and another--Respondents

W.P. No. 2612 of 2008, decided on 15.9.2008.

Criminal Procedure Code, 1898 (V of 1898)—

----S. 516-A--Constitution of Pakistan, 1973, Art. 199--Recovery of car from the possession of the petitioner--Application for superdari--Rejection of--Revision against, dis-allowed--Constitutional petition--Car was sold to three persons including the present petitioner who is a bona fide purchaser, however the important point is whether the car was sold by the actual owner or by an accused of criminal mis-appropriation or a fraud--Offence is also covered by S. 410, PPC--Despite petitioner being, prima facie, bona fide, purchaser of the car, cannot be treated as a lawful owner--Petition dismissed. [P. 323] A

Mr. Muhammad Baleegh-uz-Zaman Chaudhry, Advocate for Petitioner.

Ch. Muhammad Mushtaq Saleem, Advocate for Respondent

No. 1.

Mr. Muhammad Nawaz Bajwa, AAG for State.

Date of hearing: 15.9.2008.

Order

An F.I.R No. 281/05 was registered at P.S. Shadman, Lahore on 16.8.2005, under Sections 406, 468, 471 and 420 PPC on the complaint of Dr. Qamar Ara, Respondent No. 2 herein. According to the learned counsel for the petitioner, the above F.I.R was registered in relation to fraudulent transaction, misappropriation, etc. of Car No. LRU/713. According to him, the petitioner bonafidely purchased the same from one Naveed Anjum, named accused in the above mentioned F.I.R. The registration of the car was transferred in favour of petitioner on 28.11.2005. The car was recovered from possession of the petitioner by police on 8.10.2007 on orders of the learned Judl. Magistrate, Model Town in pursuance of orders passed in Writ Petition No. 5152/06 dated 21.9.2007, by this Court.

2. In the above background, the petitioner applied for possession of the said car but his application was dismissed by the learned Judl. Magistrate on 8.10.2007. Against the said order, a revision was filed before the learned Addl. Sessions Judge which was also dismissed by the learned Addl. Sessions Judge on 17.3.2008, hence the present petition.

3. The learned counsel for the petitioner submits that the car was taken into custody by the police from the possession of the petitioner, therefore, custody/superdari should be given to him until the final decision of the criminal case arising from the said F.I.R.

4. On the other hand, the learned counsel for the complainant of the F.I.R. Respondent No. 2 submits that one Naveed Anjum, a former Sub-Inspector of police had become an adopted son of Dr. Qamar Ara, Respondent No. 2. According to him, he took advantage of her love, affection and confidence and started driving the car. One day, he concocted a false story and told Respondent No. 2 that car had been destroyed in an accident. Actually, Naveed Anjum had sold the car to one Mushtaq. However, said Mushtaq came to know fraudulent act of Naveed Anjum, thus, he returned the car to Naveed Anjum who later on through a show-room sold the same to the petitioner. According to him, despite registration of F.I.R above-mentioned against Naveed Anjum, the police were not recovering car from him being his colleagues. For the said reason, Writ Petition No. 5152/2006 had to be filed before this Court. Following the order of this Court dated 21.9.2007, the car was recovered. According to him, the learned Magistrate, pursuant to order of this Court directed police to recover the car which was recovered from the owner of show-room, Khawaja Khalid Hafeez and not from the petitioner.

5. According to the learned Assistant Advocate General, Punjab, as instructed, last possession was with the present petitioner and according to the official record, he is still owner of the car. Thus he supports version of the petitioner.

6. I have heard the above noted arguments of the learned counsel and considered the same with due attention.

7. The main grievance of the present Respondent No. 2, petitioner in Writ Petition No. 5152/06 was that despite submission of challan before the trial Court, the car was not recovered from Naveed Anjum, Respondent No. 7 in the above mentioned writ petition. In the above background, this Court directed DIG (Investigation) to recover the car or the concerned police officer would face the legal consequences. The relevant port of my order dated 12.9.2007 is reproduced for convenience:-

"I take a serious view of the above mentioned grave lapse on behalf of the Investigating Officers who have been involved in the investigation of this case. The DIG, Investigation, Lahore Mr. Tasaddaq Hussain is directed to appear before this Court to explain the conduct and failure on part of his subordinates, on 21.9.2007. It would be better if the car/case property is recovered immediately before the next date of hearing otherwise the concerned police officers would face legal consequences."

In the above background, the car was recovered but not from Naveed Anjum. For further details report submitted by the DIG would be relevant. According to which, recommendation of Standing Board, ASP/SPO Garden Town Circle, Lahore was entrusted with the investigation. According to the report, the preparation of forged and fake documents could not be proved, thus Sections 468 and 471 PPC were deleted and Section 420 PPC was added. The accused, Naveed Anjum, SI was found guilty of offences under Sections 420 and 406 PPC and the challan was accordingly submitted. The report includes that the said car was sold three times and all purchaser were bonafide purchaser and accused has to pay the price of the vehicle to the bonafide purchasers.

8. The above report identifies two relevant points. Firstly, Naveed Anjum, former SI police was enjoying immense confidence of the present Respondent No. 2 and taking advantage of the same Naveed Anjum caused losses to her in different ways including dishonest misappropriation or fraudulent possession of the car, the subject-matter of present writ petition. Thus natural conclusion is that if anyone has committed offence under Sections 406 and 420 PPC, it was only Naveed Anjum and nobody else. It is also established from the record that the car was sold to three persons including the present petitioner who is a bonafide purchaser as supported by the learned Assistant Advocate General, Punjab also. However, the important point is whether the car was sold by the actual owner or by an accused of criminal misappropriation or a fraud? Could Naveed Anjum sell this car in the above circumstances? The I.O. did not appreciate that his offence is also covered by Section 410 PPC. In the Sub-Continent of India/Pakistan, we are well conversant with the concept of " ". Therefore, despite petitioner being, prima facie, bonafide purchaser of the car, cannot be treated as a lawful owner. He certainly has a right to recover his loss from Naveed Anjum in accordance with law. For the same reason, the impugned orders cannot be interfered with, thus, this writ petition is dismissed with above observation.

(M.A.K.Z.) Petition dismissed.