2026 M L D 461

 2026 M L D 461

[Peshawar (Mingora Bench)]

Before Dr. Khurshid Iqbal, J

MUHAMMAD ALI---Petitioner

Versus

The STATE and another---Respondents

Cr.M Q.P No. 48-M of 2020 with Cr.M. 50 of 2021 and Cr. M. 138 of 2021

and Cr.M Q.P No. 6-M of 2021, decided on 20th February, 2023.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A & 516-A---Custody of vehicle---Last possessor priciple---

Scope---Respondent No. 2 claiming to be the owner of the vehicle in

question, reported to the police that 19 months ago, he had given

the vehicle in question to MS for his temporary personal use, but

MS never returned it to him despite his efforts---After an inquiry a

criminal case at the strength of FIR against MS under S.406, P.P.C,

was registered---Vehicle in question was recovered from the

possession of the petitioner---Petitioner and the complainant both

agreed to park the vehicle in Police Station---Complainant, the

petitioner and one SJ , filed separate applications for the custody of

said vehicle before Judicial Magistrate, who had allowed the

application of the complainant---When arrested, MS admitted that

he had sold the vehicle in question and promised to make good a

sum of Rs. 6,30,000/- to the complainant, but he never honoured his

promise---Held: Complainant had a deed showing him as the

purchaser---Complainant had given the vehicle in question to MS

for his personal use and charged the said MS for committed

criminal breach of trust (under S.406, P.P.C)---Indeed, whatever

transaction MS had entered into with whomsoever at any particular

point of time, had no legal value for the simple reason that a

criminal case had been registered against MS for which he had to

face trial---While it was yet to be seen whether the charge against

MS would be proved or not, at the moment, a criminal charge

existed against him which prima facie disentitled anyone whose

claim, somehow or the other, was traceable to him---Record showed

that SJ had also filed a civil suit against the said MS and the

complainant---Copy of a sale deed dated 21/03/2018 was available

on the record which showed that the complainant had sold the

vehicle in question to MS ---However, there was no counterclaim of

MS against the complainant---Where more than one person laid

claim to the custody of property, the principle that the contender claiming to be last in possession would not apply, particularly when

there was a criminal charge, theft or criminal breach of trust

against one of them---In other words, it was to be seen whose claim

stood on a higher pedestal---No force was found in petitions, which

were dismissed, accordingly.

Qaiser Shafeeq Vohra v. The State and another 1991 MLD 2590;

Ghulam Shabbir Lashari v. The State 1991 PCr.LJ 287 and A.K.A.R.A.

Chettyar v. Ma Saw Hla AIR 1937 Rangoon 450 rel.

Yousaf Khan for Petitioner.

Saeed Ahmad, Asst: A.G for the State.

Ihsanullah for Respondent No. 2.

Date of hearing: 20th February, 2023.

JUDGMENT

DR. KHURSHID IQBAL, J.---By this single opinion, I propose to

dispose of the above captioned two Quashment Petitions (QPs). The

reason is that they pertain to the custody of one vehicle (a 1996 model

Toyota car, locally called "ghwagai"; hereafter "vehicle in question)

between the same parties and their respective applications, having

been decided by the same Court (the learned Judicial Magistrate)

though by different orders: one, passed on 23/10/2019, and the other,

on 27/11/2019, and Criminal Revisions Petitions (CRPs) decided by the

same Court (learned Additional Sessions Judge). The question for

determination is that whether the principle that the person last in

possession of a property is still applicable when more persons than

one (the last possessor, being the petitioner herein) have come to the

Court with competing claims.

2. The germane facts of the case are that Gulbaz (Respondent # 2),

claiming to be the owner of the vehicle in question, reported to the

police that 19 months ago, he had given the vehicle in question to

Malak Sahil alias Tawabuddin for his temporary personal use. But

Malak Sahil never returned it to him despite his efforts. His report was

recorded in the daily diary # 56, on 27/09/2019. An inquiry was

launched which culminated into a criminal case at the strength of FIR

# 301, on 11/10/2019, against Malak Sahil under section 406, P.P.C,

registered in Police Station (PS) Dir, District Dir Upper. The vehicle in

question was recovered from the possession of the petitioner in Swat.

The petitioner and the complainant both agreed to park the vehicle in

PS Charbagh in Swat. However, it was later shifted to Dir Upper where

the complainant, the petitioner and one Shah Jehan, filed separate

applications for the custody before Judicial Magistrate, who has

allowed the application of the complainant per his orders referred to above. When arrested, Malak Sahil admitted that he has sold the

vehicle in question and promised to make good a sum of Rs. 6,30,000/-

to the complainant, but he never honoured his promise.

3. I have heard arguments of learned counsel for the parties and the

learned Assistant Advocate General, for the State and perused the

record.

4. A preliminary objection was raised that one QP against the

judgment of the Revisional Court is not maintainable for the reason

that the petitioner didn't challenge the Judicial Magistrate's order

dated 23/10/2019 before the Revisional Court. However, he filed a CRP

against the Magistrate's order dated 27/11/2019 which the Revisional

Court decided by a consolidated Judgment dated 06/06/2020. The

record confirms this fact.

5. It is pertinent to mention that one Shah Jehan also came forward

and claimed custody, contending that he has purchased the vehicle

from Malak Sahil, he then sold it to Awal Khan. He further contends

that Awal Khan returned it to him owing to the dispute over it and

subsequently, he returned it to Malak Sahil.

6. Coming to petitioner's case, a bare perusal of his QPs would show

that he has set up no specific plea as from whom he has purchased or

otherwise got the vehicle in question when and where. His only plea is

that he is the last possessor. He claims it from the complainant only to

whom the custody has been given by the Judicial Magistrate, which

has been confirmed by the learned Revisional Court. The record

reflects that the entire story, till this stage, revolves around the

complainant and Malak Sahil: the former having registered the

criminal case against the latter on the charge of criminal breach of

trust.

7. During investigation of the case, the petitioner has recorded his

statement under section 161, Cr. P.C. in which he has stated that he

has purchased the vehicle in question from one Fazal Rahman son of

Bakht Zada, a resident of village Rorya Charbagh at the sale

consideration of Rs. 5,00,000/-, out of which he has paid Rs. 2,00,000/-,

and the remaining is still outstanding against him. He has shown no

sale deed in this respect. Malak Sahil has also recorded his statement

under section 161, Cr. P.C. in which he has admitted having obtained

the vehicle in question on the pretext of his personal need and sold it

to Shah Jehan. Shah Jehan has also recorded a similar statement in

which he has reiterated his contention noted in paragraph 5, above.

On the record, the sale deed in favour of the complainant is available

which shows that he had purchased it from one Bacha Rahman, a resident of Dir Upper. Moreover, the complainant is also in

possession of original documents of the vehicle in question.

8. The conclusion of the above discussion is that the complainant

has a deed showing him as a purchaser. He had given the vehicle in

question to Malak Sahil for his personal use and charged the aforesaid

Malak Sahil for committed criminal breach of trust (under section 406,

P.P.C). Indeed, whatever transaction Malak Sahil has entered into with

whomsoever at which particular point of time, has no legal value for

the simple reason that a criminal case has been registered against

Malak Sahil for which he has to face trial. While it is yet to be seen

whether the charge against Malak Sahil would be proved or not, at the

moment, a criminal charge exists against him which prima facie

disentitles anyone whose claim, somehow or the other, is traceable to

him. The record shows that Shah Jehan has also filed a civil suit

against the aforesaid Malak Sahil and the complainant. It is worth

mentioning that copy of a sale deed dated 21/03/2018 is available on

the record which shows that the complainant has sold the vehicle in

question to Malak Sahil (showing his name as Bakhtuddin). However,

there is no counterclaim of Malak Sahil against the complainant.

9. Finally, I shall come to law on the subject. In a 1991 Karachi case,

in which a criminal case under section 14 of the Offences Against

Property (Enforcement of Hudood) Ordinance, 1979, was registered,

the Court ruled that the custody of a stolen car cannot be granted to a

petitioner who claims its purchase from a thief in a criminal case

regarding it (Qaiser Shafeeq Vohra v. The State and another, 1991 MLD

2590 [Karachi]). The Court referred to the cases of Ghulam Shabbir

Lashari v. The State, 1991 PCr.LJ 287 and A.K.A.RA. Chettyar v. Ma Saw

Hla, AIR 1937 Rangoon 450, stating it as the "nearest parallel to the

present case" and quoted the following observation of the Court:

"Where the known facts plainly show that the property has been

stolen, it would be intolerable to allow the person in whose

possession the property is found to retain it as against the

rightful owner and force the latter to a civil suit for its recovery

if the accused absconds."

A further reading of Qaiser Shafeeq above would show that the

Court deviated from the established principle of grant of custody to the

last possessor, for the following reasons:

"I am conscious of the fact that a different view has been expressed

in number of cases including the one relied upon by learned

Sessions Judge to the effect that ordinarily the Court is required

to give temporary custody of the property to a person who was

last in possession unless otherwise there are special features which may warrant a different course. The present case is

certainly of an exceptional character where the concerned

police has avoided to prosecute the persons who could be

thieves or purchaser of the property from the thieves. A cruel

wrong was done to the applicant which was perpetuated by

different Courts at different stages. In this way a person who

himself was a victim and who had a preferential right was

denied the custody of his own car by a person who claimed to

have purchased it from thief."

10. Another relevant case is Abdul Rashid v. Allah Ditta and others

1985 MLD 1376 [Lahore]. The facts of this case reveal that while the

petitioner was held entitled to the custody of vehicle in question (a

tractor) as the person found last in possession, there was a criminal

case registered regarding it under sections 382/148/149, P.P.C, and

section 17 of the Offences Against Property (Enforcement of Hudood)

Ordinance, 1979, against the respondent. In short, there was allegation

of forcible removal of the vehicle in question from possession of the

first owner.

11. The answer to the question mentioned in paragraph-1, above, is

that where more than one person lay claim to the custody of property,

the principle that the contender claiming to be last in possession

would not apply, particularly when there is a criminal charge, say,

theft or criminal breach of trust against one of them. In other words, it

is to be seen whose claim stand on a higher pedestal.

12. In light of the above discussion, I find no force in both the QPs,

which are accordingly dismissed.

JK/146/P Petitions dismissed.