MUHAMMAD BOOTA vs THE STATE and anothers
This matter involves a dispute over the 'Superdari' (custody) of a tractor, which is the subject of a pending criminal case involving allegations of forgery and fraud under sections 420, 468, 471, and 406 of the Pakistan Penal Code. The petitioner, claiming ownership, challenged the orders of the Magistrate and the Revisional Court, which had granted custody of the tractor to the respondent, Muhammad Younas, based on the fact that the vehicle was registered in his name and recovered from his possession. The core legal question was whether the High Court should interfere with the transitory orders of custody when a genuine dispute regarding ownership is simultaneously pending before both civil and criminal courts. The Court held that it would not interfere in the exercise of its constitutional jurisdiction, as the custody orders were transitory and the underlying ownership dispute was already sub judice. The key principle laid down is that where a genuine, contested dispute regarding title exists and is pending before competent civil and criminal forums, the High Court will generally decline to interfere with interim custody (Superdari) orders in its constitutional jurisdiction.
- Should the High Court interfere with interim custody (Superdari) orders in its constitutional jurisdiction when the underlying ownership dispute is pending before a civil court?
- Does the registration of a vehicle in a person's name provide a sufficient basis for a Magistrate to grant interim custody (Superdari) during a pending criminal investigation?
- Section 406, Pakistan Penal Code 1860
- Section 420, Pakistan Penal Code 1860
- Section 468, Pakistan Penal Code 1860
- Section 471, Pakistan Penal Code 1860
ORDER
A case under section 420/468/471/406, P.P.C. Was registered at the report of Muhammad Boota petitioner in respect of transfer of the disputed tractor ultimately in the name of Muhammad Younas allegedly on the basis of forged documents prepared by one Umar Hayat. The petitioner applied for Superdari of the tractor which was given to him vide order, dated 10-3-1998 passed by the learned Ilaqa Magistrate. The other party filed a revision petition which was accepted and the matter was remanded for decision afresh after hearing the parties. Thereafter, another Magistrate vide order, dated 17-5-1999 directed that the tractor be given on Superdari to Muhammad Younas i.e. Respondent No,2 on the ground that it was registered in his name. The petitioner filed a revision petition to impugn the aforesaid order of the Magistrate but his revision petition was dismissed on 16-6-1999 by the 'learned Additional Sessions Judge, Ferozewala on the ground that since the recovery of the tractor was effected from. Muhammad Younas i.e. Respondent No,2 and the same stood registered in his name, therefore, the Superdari was rightly given by the Magistrate vide his order, dated 17-5-1999.
2. It is clear that the main case is yet pending and the parties have also gone in civil litigation in respect of ownership of the tractor in dispute. Learned counsel for the petitioner has submitted that the order initially passed by the Ilaqa Magistrate on 10-3-1998 was correct in the eyes of law as the same was passed in view of the investigation conducted by the police. However, that order was upset in the revision petition by holding that the matter be re-determined after hearing both the parties and after hearing both the parties, the impugned order, dated 17-5-1999 was passed by the Magistrate which was confirmed in the revision as pointed out above.
3.It is contended that the orders passed by both the Courts below suffer from patent illegality as Muhammad Boota i.e. Complainant/petitioner was the actual owner of the tractor in question but was deprived of the same by preparing the forged documents by one Umar Hayat to whom the same was given for plying it after the petitioner was injured in an accident. The aforesaid Umar Hayat had agreed to pay profit to the petitioner out of the earning of the tractor but later on did not abide by the commitment although he was asked to render the account in October, 1997. The aforesaid Umar Hayat neither gave the profit out of earning nor did he return the tractor and went away after making a false promise that he would return the tractor after few days but did not do so till now. In the meanwhile, the complainant/ petitioner came to know that Umar Hayat aforesaid after hatching conspiracy with Liaquat Ali and Amanat Ali i.e. The named accused in the F.I.R.
Committed forgery and got the papers prepared in their name and as such, committed fraud and misappropriation. Hence, the aforesaid case was registered in which the order of Superdari aforeme Toned was passed. Learned counsel for the petitioner has further contend that none of the Courts below had taken into consideration that the own of the tractor was Din Muhammad who had obtained the same on credit from the bank and had sold the same to the complainant/petitioner, Muhamma Boota for which a sale receipt was executed on 13-12-1995.
Howeve , the tractor was admittedly not transferred to the name of the complainant after its sale by Din Muhammad would not deprive the complainant/petioner. Although the registration book was allegedly given to him, the photo copy of which is placed on record. The original was also shown during the argument's. It was, therefore, contended that the mere fact that the registrati n of the. Tractor was not in the name of the complainant/petitioner of his ri tful ownership qua the tractor in question and as such, the impugned rder, whereby, the Superdari was given to Muhammad Younas claiming to e the owner of the tractor was wrongfully passed.
4. I have heard the learned counsel for the petition r at length and have also gone through the record very carefully. The original registration book of the tractor in the name of Din Muhammad shows that the tractor was nontransferable. As such, the question would arise whether a lawful, transfer of the tractor could be made to the petitioner/complainant by its original owner. On the other hand, Muhammad Younas i.e. Respondent No,2 claims to be the owner and the tractor stands registered in his name aft r he had allegedly purchased it from Liaquat Ali aforesaid. In such a s tuation, there is a genuine dispute regarding the ownership of the tractor is question which is pending adjudication in the Court of the civil jurisdiction n. Any observation on that point at this stage should be avoided lest it may prejudice the trial in the Court aforesaid. Even the criminal case is also pending in which final order is to be made whether or not the transfer of the tractor was made on forged documents or it was a genuine transaction. In such a situation and since the matter is pending before the competent Court of jurisdiction on the criminal as well as civil side, therefore, the impugned orders passed by the Illaqa Magistrate and confirmed by the revisional Court which are of transitory nature would not call for interference in the Constitutional jurisdiction of this Court particularly when it has been o served in the order passed by the learned revisional Court that the tractor stands registered in the name of Muhammad Younas respondent No,2 and the same was recovered by the police from his possession.
5. In view of the above discussion, there is no good ground so as to interfere with the impugned orders passed by the learned Illaqa Magistrate, dated 17-5-1999 and the learned revisional Court, dated 16-6-1999 respectively. The writ petition is accordingly dismissed in limine.
C.M. Nos.1 and 2 of 1999
6. Disposed of with the disposal of the main petition.