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Civil Petition for Special Leave to Appeal No. 4‑P of 1975, decided on 4th February 1975.

(On appeal from the judgment and order of the Peshawar High Court, dated 20‑12‑1974 in Criminal Revision No. 112 of 1974).

‑‑ Art. 185(3)‑Dispute regarding custody of car---Civil suit already filed with regard to ownership‑Order made by any criminal Court or by Supreme Court in proceedings out of such dispute in Criminal Court‑Subject to order of Civil Court‑Held, wholly futile to decide merits of conflicting claims in leave to appeal in circumstances‑Civil Procedure Code (V of 1908), S. 9 and Criminal Procedure Code (V of 1898), S. 517.

Amirzada Khan, Advocate‑on‑Record for Petitioner.

Khan Bahhdur Khan. Advocate Supreme Court instructed by Nur Ahmad Khan, Advocate‑on‑Record for Respondent No. 1.

Nemo for Respondent No. 2.

Date of hearing : 4th February 1975.

.‑The subject‑matter of this leave petition from the order of the Peshawar High Court dated 20‑2‑1974 made In Criminal Revision No. 112 of 1914, is the custody of Toyota car differently described by the petitioner and. the first respondent, who are the two rival claimants for its custody.

It appears that the C. I. A., Nowahera took the car in custody from respondent No. 1, a resident of Batkhela, during the investigation ad a case registered as per F. I R. No. 423 by the Noweshera Cantt. Police under sections 302 and 404, P. P. C. at the instance of Munir Ahmad, the petitioner herein.

On an application made by the petitioner herein, a Magistrate 1st Class, Nowahera on 20.4‑1974 ordered the custody of the car to be giver to the petitioner. In support of his claim for the custody of the car the petitioner produced a receipt dated 4‑12‑1973 showing that he had purchased Toyota car 1969 Model. Registration No. RIB‑981 for Rs. 42,500. In the F. I. R. No. 423, tire petitioner gave tine circumstances leading to the loss of the car by him. According to his version, he had engaged one Ali Imam as a driver for this car. On the night between 25/26th December 1973, certain persons 'hired the car for a visit to the shrine of Kaka Sahib near Nowshera. Ali Imarn, drive' took the passengers in the car on their errand. On 26‑12.1173 the petitioner was informed about the murder of his driver. He proceeded immediately to Nowshera, where he lodged the report. During the investigation of the case, the car is dispute bearing Registration No.AJK-4174 was reserved from the respondent. The petitioner identified this car ac belonging to him despite the discrepancy in the registration number. His request was supported by the police and therefore, the car was delivered to him on certain conditions.

The respondent No. 1 on the other hand claimed the custody of the car as belonging to him, which was taken by the police from his possession and therefore, ho was entitled to its custody under section 523. Accordingly, he applied to the 1st Class Magistrate of Nowshera, for the entrustment of the custody of the car to him. His request however, was refused by the successor Magistrate, vide order dated 22‑7‑1974.

Against tine Magistrate's order refusing custody of the car to him, respondent No. 1 moved a revision in the High Court and a learned Judge by the impugned order reversed the orders of the two Magistrates dated 20‑4‑1974 and 22‑7‑1974 and directed the custody of the car to be given to respondent No. 1 on his furnishing security for Rs. 50,000 with two sureties. The learned Judge was mainly influenced by the fact that the Engine No. and Chasis No. of the car recovered by the police did not tally with the numbers entered in the receipt produced by the petitioner before the Magistrate In support of his title in the car. This was despite the fact that Here was the report of the forensic laboratory indicating that the Chas's No. and the Engine. No. of the car had been tampered with.

The petitioner seeks leave to appeal against the above order of the learned Single Judge. In the meantime, this Court by order dated 15‑1‑1975 has directed that the car be put in the garrage of Modem Motors Ltd. Peshawar Road, Rawapindi, during the pendency of this leave petition. Accordingly, the car has been delivered to the above concern for interim custody.

In the course of arguments of Mr. Amirzada Khan, learned Advocate. Record in support of the leave petition, it transpired that tote petitioner in the meantime, has filed a civil suit for a declaration of his ownership of the car impleading respondent No. 1 as defendant to the suit. Along with his plaint, he has also moved an application for the interim custody of the car, though no order has so far been made on the application. It was agree) however, both by the petitioner's counsel and the counsel for the cavcator that any order made by a criminal Court for the custody of the car of for that matter by this court n proceedings arming out of the entrustment of custody will be subject to the order of a civil Court, which indeed is a Court of plenary jurisdiction to decide with regard to the ownership of the: car in question which is a civil dispute entertainable only by a civil Court under section 9. C, p. C. Therefore, we consider it wholly futile to decide the merits of the conflicting claims in this petition, The dispute harm bee‑a taken to the civil Court, where the issue will be settled finally between tile parties.

In the above circumstances, era dismiss the petition. Modern Motors Ltd., Rawalpind shall however, retain the custody of the car subject to any order or direction by the Civil Court in the suit instituted by the petitioner herein.

Subject to the above direction, we dismiss this petition.

Petition dismissed.

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