Rafiullah vs State etc

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

MINGORA BENCH (DAR-UL-QAZA), SWAT

(Judicial Department)

Quashment Petition No. 11-M/2015

JUDGMENT

Date of hearing: 31.7.2015

Petitioner: (Rafiullah) by Mr. Akhtar Munir Khan, Advocate.

Respondents (State etc) by Mr. Fazal Malik, Advocate and Mr. Sabir Shah, learned A.A.G.

HAIDER ALI KHAN, J.- This quashment petition is directed against the judgment/order dated 05.3.2015 of the learned Sessions Judge/Zilla Qazi, Dir Lower at Timergara whereby criminal revision petition of the respondent No.2 against the order dated 23.1.2015 of the learned Judicial Magistrate Timergara was partially accepted and Motorcar Toyota Premio Model 2007 bearing Registration No.YF-543-Islamabad, Engine No.A014800, Chassis No.ZRT260-3001368 was given in custody of the local police.

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2.Precise and relevant facts of the case are that consequent upon an initial report of respondent No.2 in respect of the vehicle in question, the Political Agent Bajaur Agency referred the case to District Police Officer, Dir Lower vide letter bearing Endst: No. 7466 dated 20.12.2013 whereafter report was recorded vide Daily Diary No.31 dated 30.12.2014 in Police Station Timergara. Later on inquiry under section 156(3), Cr.P.C was initiated in compliance with the order dated 01.1.2015 of the learned Judicial Magistrate/Illaqa Qazi Timergara.

During the course of inquiry the vehicle in question was taken into possession by the local police, however, the petitioner as well as the respondent No.2 submitted separate applications for custody of the vehicle in question before the learned judicial Magistrate who accepted application of the petitioner and handed over custody of the vehicle to him vide order dated 23.1.2015. Being aggrieved, gt}tÅâÄrP.S*

the respondent No.2 filed a revision petition before the learned Sessions Judge, Dir Lower, against the order of the learned Judicial Magistrate which was partially accepted vide order/judgment dated 05.3.2015 and the vehicle was again given in possession of the local police. Hence, the quashment petition in hand.

3.Arguments heard and record perused.

4.It transpires from perusal of the record that inquiry under section 156 (3) in respect of the vehicle in question was conducted by the local police in compliance with the order dated 01.1.2015 of the learned Judicial Magistrate and inquiry report in this regard was submitted in Court by the SHO concerned on 14.1.2015. According to the inquiry report, the petitioner is the actual owner and last possessor of the vehicle in question. The relevant portion of the inquiry report is reproduced herein below for convenience sake.

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"پس من ايس ايچ اونے عدالت کی احکامات کی تعميل ب ضابطہ انکوائری کرتے ہوئے معاملہ کی نسبت حس ِ شروع کی۔ دوران انکوائری مسمی رفيع الله کو طلب کرکے اس سے موٹر کار کے متعلق اصل کاغذات پيش کر نے کا مطالبہ کيا گيا تھا۔ تو مذکوره نے موٹرکار کے متعلق رجسٹريشن کاپی اور اصل ٹرانسفر ليٹر پيش کرکے پيش کرده کاغذات بروئے فرد ٖقبضہ پوليس ہوئی۔ اسی طرح ڈاکٹر عنايت الرحمان نے ايک ٹرانسفر ليٹر جس پر صرف مسمی رحم سيد ولد سيد جمال ساکن کرنل شير کلے ضلع صوابی کا دستخط ثبت ہے جو کہ موٹر کار کا سابقہ مالک تھا اس کا شناختی کارڈ کا فوٹو سٹيٹ بھی لف ہے ،پيش کرکے بروئے قبضہ پوليس ہوئی۔ اِس طرح ڈاکٹر عنايت الرحمان دو عدد بيانات بھی بابت موٹر کار پيش کرکے قبضہ پوليس ہوئی ہے۔ مسمی رفيع الله نے بھی موٹر کار کی بابت بيع نامہ پيش کرکے قبضہ پوليس ہوئی۔ مورخہ 09.1.2015کو بذريعہ تحريری درخواست رجسٹريشن اتھارٹی اسالم آباد سے کاغذات بابت موٹر کار پيش کرده رفيع الله ،عنايت الرحمان تصديق کرنے کی استدعا کی گئی۔ رجسٹريشن اتھارٹی اسالم آباد نے رفيع الله کی پيش کرده کاغذات کی تصديق کرتے ہوئے واضح کيا کہ پيش کرده کاغذات دفتر ٰہذا سے جاری شده اور اصلی ہے اور موٹر کار کا اصل مالک بمطابق ريکارڈ مسمی رفيع الله ولد محمد قيوم ہے" The above extract from the inquiry

report clearly shows that the petitioner produced before the local police the original registration and transfer letter of the vehicle besides the same have duly been verified by the Motor-Vehicl Registration Authority, Excise & Taxation Department, Islamabad. The inquiry further reveals that the said Authority has denied the verification of transfer letter produced by the respondent No.2 by terming *gt}tÅâÄrP.S

the same as blank one. The inquiry report also reveals that the petitioner produced sale deed of the vehicle before the local police who recorded statement of Abdul Musta’an from whom the petitioner purchased the vehicle in question against sale consideration of Rs.25,00,000/-. Similarly, the local police also recorded statement of Akbar Khan son of Itbar Khan who purchased the same vehicle from one Noor Muhammad against sale

consideration of Rs.28,00,000/- and sold out the same to Abdul Musta’an. Hence, according to the inquiry report of the local police, the petitioner is last owner and possessor of the vehicle in question, being a bona fide purchaser thereof.

In this regard guidance can be sought from the judgment delivered in case of “Kadirminq Vs. The State and another (1998 SCMR 2542) wherein custody of vehicle was handed over to petitioner therein on the basis of facts identical with gt}tÅâÄrP.S*

those of the present case. The relevant portion of the judgment is reproduced as under:- “ We are of the view that no exception can be taken to the impugned order of the High Court, inasmuch as the recovery of the omni bus was made from the driver of Ghulam Hyder and besides, the name of Ghulam Hyder was also found mutated in the relevant Excise and Taxation record. As to whether such mutation had resulted upon fraud being practiced by illegally tilling up the blanks in the transfer papers etc. are questions which must await due determination at the level of the Civil Court.”

Yet in another case having identical facts reported as 1992 SCMR 1454 the august Supreme Court observed that:-

“It cannot be denied that the van was seized from the possession of the appellant. It is yet to be seen whether the documents produced by the appellant in the Civil Court are based on forgery or not and it is only the Civil Court which can determine the question of title. Prima facie appellant is entitled to the custody of van in dispute.”

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Record shows that the vehicle in

question was seized from the petitioner and his name is mutated in record of the Excise and Taxation Department. In that respect original registration book, transfer letter and sale/purchase deed from the last owner are part of the record. In addition to the above, statements of the witnesses also supports the petitioner’s version, hence, prima facie the petitioner is entitled to the custody of vehicle. So far as contention of the respondent No.2, is concerned, he has nothing in support of his ownership of the car except a blank transfer letter and a report to the Political Agent Bajaur Agency that the vehicle is stolen one. However, question of title of the vehicle in question is still disputed which cannot be determined by this Court while exercising its jurisdiction under section 561-A, Cr.P.C and the proper forum for this purpose is the Civil Court, therefore, both the parties should approach the said gt}tÅâÄrP.S*

forum for determination of question of title of the vehicle in question.

5.For what has been discussed above, this quashment petition bearing Q.P No.11-M/2015 is allowed, the impugned order of the learned Sessions Judge/Zilla Qazi, Dir Lower at Timergara dated 05.3.2015 is set aside/quashed. Consequently, custody/supardari of the vehicle in question is handed over to the petitioner subject to his furnishing surety bond in the sum of Rs.25,00,000/- (rupees twenty five lac) with two sureties each in the like amount to the satisfaction of Illaqa Judicial Magistrate/MOD who shall ensure that the sureties are local, reliable and men of means.

Above are the reasons of my short order of the even date.

Announced.

Dt: 31.7.2015. JUDGE

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