PLJ 2024 Cr.C. (Note) 215
[Sindh High Court, Karachi]
Present: Muhammad Saleem Jessar, J.
IRFAN KHAN--Applicant
versus
LEARNED XITH ADDITIONAL DISTRICT & SESSIONS
JUDGE SOUTH KARACHI etc.--Respondents
Cr. Misc. Appln. No. 688 of 2022, decided on 13.3.2023.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 561-A--Criminal Miscellaneous--Applications--Vehicle in question--Manoeuvering false agreement regarding vehicle--The anxiety of Applicant is that he as well as his partner namely Adeel were contesting party before trial Court, but Respondent No. 4 in order to get favourable order in his favour filed said Revision Application without arraying them as party--He next submits that Revisional Court did not bother to inquire about contesting parties before trial Court and thus passed ex-parte order, which has been impugned by them before High Court through instant Misc. Application--He further submits Applicant in compliance of directions contained under order passed by trial Court, has also filed Civil Suit No. 1193/2022 before Court of 2 Senior Civil Judge, Karachi (South), which has been admitted for regular hearing, in which Respondent No. 4 and others have been made party as Defendants--He, therefore, submits unless title of vehicle in-question is decided by Competent Court, impugned order may be set aside--Admittedly, Applicant and his partner Adeel had contested applications before trial Court and being in possession of original file of vehicle in-question; they are necessary-cum-proper party, hence it was their vested right to be heard, which Revisional Court has ignored--Moreover, Applicant had also filed Civil Suit before Competent Court having jurisdiction, which is pending adjudication--The legal issue in this case is that Applicant has not been given opportunity of hearing before Revisional Court, therefore, he could not place his case properly--Consequently, impugned order being ex-parte one, cannot be maintained.
[Para 2 & 4] A & B
Mr. Naseer Ahmed Panhwar, Advocate for Applicant.
Ms. Seema Zaidi, Addl. P.G. Sindh a/w Pl Asmatullah& ASI/ IO Safdar of PS Clifton, Karachi and Adil Umar Kalhoro, AETO, Motor Registration Wing, Karachi.
Mr. Shah Faisal Qureshi, Advocate for Respondent No. 4.
Date of hearing: 13.3.2023.
Order
Respondent No. 5 lodged FIR No. 307/2022 with PS Clifton, Karachi on 04.8.2022 against Mst. Maryam Shabbir and Waseem Sajjad Respondent No. 6 for maneuvering the false agreement regarding vehicle Suzuki Every Wagon Model 2011, Engine No. KGA8500534, Chassis No. DA64W-363988, and claimed himself to be the owner of said vehicle. Later it was found lying standing at the showroom namely Moosa Car Enterprises owned by Applicant and Adeel. The Respondent No. 4 filed Cr. Misc. Application No. 67 and 69 of 2022 before the 5th Civil Judge & Judicial Magistrate, Karachi (South), who after hearing the parties dismissed the said Applications by directing them to get declaration from the Civil Court having jurisdiction through its order dated 25.8.2022. The Respondent No. 4 filed Cr. Revision Application No. 88/2022 before the Court of Sessions, wherefrom it was assigned to 11th Additional Sessions Judge, Karachi (South), who after hearing the Respondent No. 4 and learned Prosecutor, allowed the Revision Application by setting aside Order dated 25.8.2022.
The anxiety of Applicant is that he as well as his partner namely Adeel were contesting party before the trial Court, but the Respondent No. 4 in order to get favourable order in his favour filed said Revision Application without arraying them as party. He next submits that Revisional Court did not bother to inquire about the contesting parties before trial Court and thus passed ex-parte order, which has been impugned by them before this Court through instant Misc. Application. He further submits the Applicant in compliance of directions contained under order dated 25.8.2022 passed by trial Court, has also filed Civil Suit No. 1193/2022 before the Court of 2 Senior Civil Judge, Karachi (South), which has been admitted for regular hearing, in which Respondent No. 4 and others have been made party as Defendants. He, therefore, submits unless the title of the vehicle in-question is decided by the Competent Court, impugned order may be set aside.
Learned Additional Prosecutor General Sindh appearing for the State after going through the file also is of the opinion that Revisional Court has erred while granting Revision Application, therefore, unless the Competent Court may decide the title of the vehicle in-question, impugned order cannot be maintained. Mr. Shah Faisal Qureshi, Advocate for Respondent No. 4 submits that the Respondent No. 4 is in possession of the vehicle in-question. He admits that his predecessor had not made Applicant or his partner as party before the Revisional Court.
Admittedly, the Applicant and his partner Adeel had contested the applications before the trial Court and being in possession of the original file of the vehicle in-question; they are necessary-cum-proper party, hence it was their vested right to be heard, which the Revisional Court has ignored. Moreover, the Applicant had also filed Civil Suit before the Competent Court having jurisdiction, which is pending adjudication. The legal issue in this case is that Applicant has not been given opportunity of hearing before the Revisional Court, therefore, he could not place his case properly. Consequently, impugned order being ex-parte one, cannot be maintained.
Accordingly, the impugned order dated 16.9.2022 passed by the 11th Additional Sessions Judge, Karachi (South)/ Revisional Court, is hereby set aside. The case is remanded to Revisional Court with directions to re-hear all the parties and after calling report from the Excise & Taxation Department and subject to title of the vehicle in-question decide the fate of Revision Application according to law.
(A.A.K.)
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