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Criminal Revision Application No. 99 of 1978, decided on 24^th April, 1979.

--- S. 523-:-Custody of property-Case relating to theft of disputed taxi not sent up for trial by Police---Order for custody of such case property could only be passed under S. 523; Cr. P.-C. and could be delivered to person entitled to its possession-Documents in possession of applicant prima facie establishing her ownership, applicant alone. held, entitled to custody.,--[Custody of property].

----Ss. 516 A & 523-Custody of property-Mere possession of Registration Book and other documents of a vehicle by accused-Would not confer title or ownership of vehicle on them nor to .its custody. [Custody of property).

Qamar Mohammad Khan for Applicant.

Salimu Nasiruddin for A.G. for the State.

Syed Saeed Hassan for Respondent No. 3.

Date of hearing 26th February, 1979,

The applicant Mst. Gut Zarin is widow of late Nasim Hussain. This Revision application is directed against the order dated 28th July, 1978 of Magistrate, First Class, Gulberg and Nazimabad, Karachi, whereby the possession of the Taxi beating Registration No: KAZ 1485, - belonging to the applicant, was given to the respondents on Supardarinama, pending disposal of the case, with the condition that they shall not sale -the said Taxi, till further orders, and shall also produce the same whenever required.

2. The facts of the case, briefly, are that the applicant was married to Nasim Hussain in about 1974. In December, 1977 the applicant was travelling, with her husband, by car to. Hyderabad., They met with an accident on the Super High Way, in which her husband and two others were killed at the spot. She was seriously - injured and had gone unconscious. She was first. removed to the Civil Hospital Hyderabad, where she was admitted as an indoor patient After .recovery, she returned to Karachi, in the first week of January, 1978.

3. At the time, when the applicant had left for Hyderabad, with her husband, she had left the Taxi Car Datsun 120-Y Model 1975, bearing Registration NQ. KAZ 1485 (previous No. 7061) at her residence B-1/90, (flock 'D' North Nazimabad, Karachi. When she returned from Hyderabad, she did not find the Taxi in her house. On inquiry, from her driver, she was informed that the Taxi was taken away by the respondents to their residence in Gulshan-e-Iqbal area. She asked the respondents, for the return of the Taxi, who promised to do so nut did not return the Taxi. By this time, she again developed complications and her health deteriorated, due to the injuries sustained in the accident. She was again admitted in the Civil Hospital, Karachi, on or about 10th January, 1978 and was discharged on 26th January, 1978. When she came home, she Again contacted the respondents and requested them for the return of the taxi, but they refused.

4. The applicant had purchased .the. Taxi on 48th August, 1977 for Rs. 80,000 on hire-purchase basis, from Abdul Sadiq, on the initial payment of Rs. 15,000 and took possession of the taxi. Under an agreement, she continued paying the monthly instalments of Rs. 2,000 and the last instalment of Rs. 2,000 was paid on 26th December, 1977.

Since the respondents had refused to return the taxi, she sent a written report on 28th January, 1978 by Registered A/D, to the S. H. O., North Nazimabad Police Station, Karachi ; but no action seemed to have been taken. She again approached the police and lodged the report on 2tst March, 1978. Consequently a case under section 379/34, P. P. C. was registered and on the following day .(22nd March, 1978) the taxi/car was secured by the police, when it was produced by the respondents.

6. After registration of the case, the respondents were shown as accused persons. Therefore; on 26th March, 1978, the applicant filed an application under section 516-A, Cr. P. C: in the Court of the Magistrate, or return of the car. In the meantime the respondents also filed an application on 2nd April, 1978, under section 523, Cr. P. C. for custody of the Taxi. By the order dated 28th July 1978 the learned Magistrate ordered 'taxi to be given to the accused respondents on Supardarinama' by passing the impugned order on the following considerations :-

(a) That there was no explanation, given by the applicant for three months delay in lodging of the F. 1. R.

(b) That the relationship of husband and wife between the applicant and her husband Nasim Hussain was denied even by the deceased himself, in his written statement in Suit No. 800/77 for dissolution of marriage filed by his second wife Mst. Sofia Begum in the Court IIIrd, Family Judge, Karachi.

(c) That on 24th February, 1974 the deceased had made an oral gift of the Taxi in favour of his eldest son Nasim Hussain as per the docu ment of oral gift.

(d) That the original documents, vii :-

Registration Book, etc. pertaining to the taxi were in possession of the accused.

(e) That the taxi was seized from the possession of the accused, when it was surrendered by them.

7. I have heard the arguments of the learned counsel Mr. Qamar Mohammad Khan, on behalf of the applicant, Syed Saeed Hassan for the respondents and Mrs. Salima Nasiruddin for the State, who has supported the, application.

From the documents filed alongwith this application, I find that the applicant was admitted is the hospital with- serious injuries and was discharged from the Hospital at Hyderabad and was readmitted in the Civil Hospital Karachi. These documents appear to have been filed in the Magisterial Court, but were not referred to in the order. From the injuries sustained by the applicant in the accident in which three persons were killed at the spot, I find, it was by itself sufficient explanation why there was delay in lodging of the F. I. R.

8. For payment of the initial cash amount of Rs. 15,000 by the applicant, she is in possession of the stamped receipt dated 28th August, 1977, wherein, she is shown as the wife of Naseern Hussain. It is Annexture A. The receipt bears L. T. I. of Abdul Sadiq, owner of the taxi. The receipt of the amount is witnessed by two persons, who had affixed their signatures thereto. The other receipts, in respect of monthly instalments of Rs. 2,000 made by the applicant, to Abdul Sadiq, are also produced, showing that amount, for the purchase of the Taxi, was paid by the applicant, which prima facie, establishes her ownership.

9. In the affidavit, sworn by Abdul Sadiq (Annexure J) which was submitted in the court of the learned Magistrate, Abdul Sadiq had admitted the applicant to be the wife of. late Nasim Hussain and that he had sold her the taxi for Rs. 80,000 on instalment basis and had received the amounts from her as stated above. These were the most important and material documents, which the 'learned Magistrate had not 'cared to refer to. On the report lodged by the applicant, the police had taken up the investigation, in respect of the theft of the taxi, which was seized from the respondents. It appears that the case. was not sent up for trial by the police. In that event, the order for custody of the taxi could only be passed under S. 523; Cr. P. C. and the taxi could be delivered to the person entitled to the possession thereof. From the documents annexed hereto, it is evident that the applicant alone was entitled to the possession of the taxi. The respondents, from whom the taxi was seized, could get the possession only when the taxi was neither stolen, nor was found under circumstances, which created suspicion of the commission of any offence.

10. In an application under section 516-A or 523, Cr. P. C. the Magistrate was not required to determine the relationship of the applicant, being wife of late Nasim Hussain. The finding in respect of the marriage of the applicant with Nasim Hussain was beyond his jurisdiction and was irrelevant altogether. The case was registered with the police, on the report of the applicant in which the Respondents were shown as the accused. The Taxi was alleged to have been unlawfully removed: stolen from the bungalow of the applicant, the ownership whereof was supported by documentary evidence in favour of the applicant.

11. The oral gift stated to have b-.en made by late Nasim Hussain, in favour of his eldest son Asim Hussain appears to have been manipulated, at a later stage, in order to grab the taxi. The learned Magistrate had travelled beyond the scope. of section 523, Cr. P. C.

12. The Registration Books etc. being in possession of the respondents, would not confer title or ownership of the taxi on the B respondents.

13. The documents, viz. Registration Book of the Taxi are usually kept inside the car. When the taxi was stolen, the documents were taken out by the respondents and the mere possession of these documents would not entitle them to the custody of the car. From the F. I. R. and the documents referred to herein above, it is established that the respon dents, from whose possession the Taxi was seized, came by it dishonestly. It would be unjust to allow the respondents to retain the Taxi as against the rightful owner.

14. For the reasons discussed above, I find the order of the learned Magistrate dated 28th July, 1978, directing the possession of Taxi to be given to the respondents, to be illegal and set aside the same and direct that the possession of the Taxi bearing Registration No. KAZ 1485 (old No. KAQ. 7061) may be restored to the applicant, who is the rightful owner of the Taxi and is justifiably entitled to its possession.

Revision allowed.

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