LAL WAZIR vs MUHAMMAD ZUBAIR and anothers

' IJAZ-UL-HASSAN KHAN, J.---Lal Wazir, petitioner, through instant petition, seeks quashment of order, dated 19-7-2006, passed by learned Additional Sessions Judge, Kohat, whereby revision petition filed by Muhammad Zubair, respondent, against the order, dated 12-5-2006, passed by learned Senior Civil Judge/Judicial Magistrate, Kohat, regarding `superdare of Motor Car No, N- 7718-Peshawar, in favor of the petitioner, was accepted and the `superdari' was recalled. The quashment petition has arisen in the following circumstances.

2. Complainant Muhammad Zubair on 20-4-2006, made report at Police Station, City Kohat to the effect that on the said day at about 12-00 noon, he (complainant) accompanied by his father Abdul Aziz (deceased) and cousin Abdul Latif was on the way back to the village, after attending a date in the District Courts and when they reached near 'jhandi Phatak' Shahpur Road, Kohat, accused Mohyuddin, Muhammad Salim, Muhammad Noor and Muhammad Ayub, duly armed with Klashnikoves alighted from a Motor Car (white in colour) and started firing at the complainant party, as a result of which Abdul Aziz was hit and died at the spot. After accomplishing the mission, accused persons made good their escape in the said car. Previous enmity between the parties was stated to be the motive for the incident. In pursuance thereof, a case under section 302/34, P.P.C.

Was registered, vide F.I.R. No,286, dated 20-4-2006.

3.. It appears from the record that during investigation of the case, a Motor Car bearing Registration No,N-7718-Peshawar, was recovered by the police, from a deserted place, parked on the road side.

4. Lal Wazir petitioner, claiming ownership of the aforesaid car, moved an application before Senior Civil Judge/Judicial Magistrate, Kohat for superdari' of the car. The application was accepted, vide order, dated 12-5-2006 and the car was given on `superdari' to the petitioner, subject to furnishing surety bonds in the sum of Rs,10,00,000 with two sureties in the like amount to the satisfaction of the Court. A revision petition was filed thereagainst by Muhammad Zubair, respondent, before learned Additional Sessions Judge, Kohat, which was accepted vide order, dated 19-7-2006. Order, dated 12-5-2006 was set aside and `superdari' order was recalled. Hence instant quashment petition.

5. Mr. Muhammad Amin Khattak Lachi, Advocate for the petitioner, contended that sufficient material was available on file to prove ownership of the petitioner in respect of the Motor Car in question, which has been ignored by the learned revisional Court; that there is no rival claimant either to the ownership or custody of the said vehicle and that petitioner being owner/purchaser and last possessee, was legally bound to the grant of custody under the law. To support the contentions, reliance was placed on Mehtar Yousaf v. The State and another (PLD 2004 Pesh. 91) and Jam Sher Muhammad v. Manzoor Ahmad and another (2006 PCr.LJ 311 Lahore).

6. Mr. Ihsanullah, Advocate, representing the State, assisted by Malik Hamid Khan, Advocate for Muhammad Zubair, respondent, refuted the arguments of learned counsel for the petitioner and contended that documents produced on the file by the petitioner in support of his claim were found forged and manipulated, which necessitated the registration of a case against the petitioner, for offences under sections 419/420/468/471/47/474, P.P.C., vide F.I.R. No, 427, dated 5-4- 2006 and the Motor Car in question having been used in the commission of offence, in case F.I.R.

No,286, dated 20-4-2006, `superdari' has been refused to the petitioner for valid reasons, which cannot be successfully challenged.

7. I have heard in detail, the arguments and submissions of learned counsel for the parties and examined the entire record in the light of sections 516-A, 517, 520 and 561-A, Cr.P.C. And also the cited judgments.

8. In the matter of `superdari', the law is quite settled and in case there are no rival claimants for `superdai' of a vehicle, then the vehicle should ordinarily be given on `superdari' to the person from whom it was taken possession of. The criminal Courts are not competent to investigate into the question of title as their jurisdiction is confined under section 516-A, Cr.P.C. Or for that matter under section 517, Cr.P.C. To the determination of the entitlement of possession and not title to the property; the question of ownership is to be determined by a competentCivil Court. Section 516-A, Cr.P.C. Dealing with the disposal of property provided as under:-- "516-A. Order for custody and disposal of property pending trial in certain cases. When any property regarding which any offence appears to have been committed or which appears to have been used for the commission of any offence, is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry of trial, and, A if the property is subject to speedy or natural decay, may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of:-- ' Provided further

9. This section speaks of two types of properties regarding which criminal Court has to pass an order i,e, the property regarding which any offence appears to have been committed and the property which appears to have been used for the commission of an offence.

10. In the instant case, as mentioned above, the Motor Car in question has been recovered by the police from an abandoned place far from the village `abade and not from the possession of the petitioner. The `Iqrar Nama', dated 5-4-2004, provided by the petitioner regarding purchase of the vehicle under reference from Noor Muhammad, is found bogus and procured. Petition Writer Abdullah totally denied having scribed the stamp paper regarding purchase of the vehicle. A case vide F.I.R. No,427, dated 5-4-2006, also stands registered against the petitioner. The mere fact that there is no rival claimant, registration number of the vehicle is not mentioned in the F.I.R. And name of the petitioner does not figure therein, by itself, cannot be considered a good ground to prove ownership of the petitioner. The case-law cited by learned counsel for the petitioner is distinguishable and proceeds on different facts. It is of no help to the petitioner. Having regard to facts and circumstances of the case, I find that the impugned order is in accordance with law and need not be interfered with. There is nothing in the impugned order as could give rise to the inference that it is suffering from any legal or jurisdictional error. The quashment petition is bereft of merit. The same is hereby 4ismissed. The order, dated 7-12-2006 of this Court, regarding suspension of the operation of the impugned order, is recalled.