P L D 2009 Lahore 382 (PLP)

KAZIM ALI MALIK, J.

I propose to dispose of Writ Petition No.2922 of 2005 and Writ Petition No.3321 of 2005 together through this single judgment as subject-matter in both these petitions is the same.

2. Brief facts giving rise to these constitutional petitions may be given first: Javaid Iqbal, petitioner obtained a car registration No.IDK-3996 Toyota Corolla, Model 2001, Chassis No.9018017, Engine No.3895983 under lease purchase agreement with Crescent Commercial Bank (Pvt.) Ltd., Islamabad. On 6-4-2005 an Asstt. Manager of the Bank wanted to seize the vehicle on G.T. Road, Rawalpindi within the territorial jurisdiction of Police Station Sadiqabad when its driver offered resistance. The representative of the bank took the vehicle and its driver to Police Station Sadiqabad when the purchaser and the bank laid their counter-claims over the vehicle before Sohail Akhtar, S.H.O. The representative of the bank blamed the purchaser that he defaulted in payment of instalments whereas the purchaser dismissed the allegation with the plea that he had been approaching the leasing company for rendition of accounts. After hearing both the parties, the S.H.O. took into possession the car under section 550, Cr.P.C. after having obtained legal opinion from the D.S.P. (Legal), Rawalpindi, till determination of the above said dispute between the parties in terms of compromise or by the Court. The purchaser and the bank approached the Special Judicial Magistrate, Rawalpindi with separate requests for custody of the seized vehicle, but unsuccessfully. Both the sides challenged the order of area Magistrate before the Court of Session through Criminal Revisions Nos.10 and 19 of 2005, which were made over to a learned Addl. Sessions Judge, who vide order dated 10-9-2005 dismissed the same. Hence, these Constitutional petitions by the purchaser and the bank.

3. It is not in dispute that during pendency of these writ petitions, Javaid Iqbal purchaser/petitioner paid the outstanding dues to the bank. On 18-2-2009, learned counsel for the bank certified payment of the dues by the purchaser and accepted this claim over the vehicle. However, the controversy could not be resolved on the said date as the vehicle seized by the S.H.O. Police Station Sadiqabad was not available in the police station and the police lines. Now the S.H.O. has produced the vehicle for its disposal in accordance with law.

4. The following legal questions require determination by this Court: (i) Whether it was permissible for the police to seize the vehicle under section 550,Cr.P.C.? (ii) Whether there was any legal or factual justification for the area Magistrate and the Revisional Court to turn down the request for custody of the vehicle?

5. Before answering the first question, I find it convenient to reproduce below section 550, Cr.P.C.: "Power to Police to seize property suspected to be stolen.

Any police officer may seize any property which may be alleged or suspected to have been stolen or which may be found under circumstances which create suspicion of the commission of any offence. Such a police officer, if subordinate to the officer-in charge of a police station, shall forthwith report the seizure to that officer." It is manifest from a bare perusal of the above said provision of law that any moveable property can be seized under section 550, Cr.P.C. by the police when it is alleged or suspected to have been stolen and if there are such circumstances which may create suspicion of commission of any offence respecting the property in question. In the case in hand the car in question was neither alleged nor suspected to have been stolen and likewise there was no circumstance whatsoever which might create suspicion of commission of any offence. Admittedly, there was a bona fide civil dispute touching the vehicle between the purchaser and the leasing bank arising out of terms and conditions of lease-purchase agreement between them. There was no occasion for the S.H.O. to seize the vehicle till resolution of their above said dispute. Seizure of vehicle being in utter disregard of the mandate of section 550, Cr.P.C. is amenable to judicial scrutiny in exercise of constitutional jurisdiction of this Court. The most shocking aspect of the matter is that the area Magistrate and the Addl. Sessions Judge endorsed the illegal action of the S.H.O. and in this way allowed him to keep and use the vehicle for about four years. Had the learned Courts below gone through the provisions of section 550, Cr.P.C. while deciding the matter laid before them, they would not have dismissed the request for custody of the vehicle. Here I must say that section 550, Cr.P.C. has been, no doubt, the most misused provisions of law.

6. At relevant time the car was in possession of the purchaser. The dispute between the purchaser and the leasing Bank was beyond the scope of section 550, Cr.P.C. In case there was apprehension of breach of peace between the parties, the S.H.O. was required to proceed against them under sections 107/151, Cr.P.C.

7. In this case the S.H.O. adopted self-styled procedure over and above the law. Under section 523, Cr.P.C. he was duty bound to report seizure of the car to the area Magistrate without wasting a single moment so that the Magistrate could make an appropriate order regarding the disposal of the car or the delivery of the seized car to the person entitled to the possession thereof. It is painful to note that when the matter was laid before the area Magistrate by the rival claimants of the seized car, he failed to discharge the duty cast on him by the law governing the subject of disposal of seized property. No complicated question of law or fact had been placed or agitated before the learned courts below, but they made it complicated vide orders, now under challenge. It was a simple question of misuse of official position on the part of the S.H.O., who took cognizance of a civil dispute between the leasing bank and the purchaser of the car. The learned Magistrate was legally bound to quash the proceedings conducted by the S.H.O. being offensive to sections 550 and 523, Cr.P.C. and to return the car to its purchaser from whose possession it was seized by the S.H.O. In fact the leasing bank won the favour of the S.H.O. and successfully invoked criminal law for determination of a civil dispute falling within the exclusive domain of Banking Court or the Civil Court.

8. For the foregoing reasons, the impugned orders being arbitrary, perverse, illegal and offensive to the established principles governing the subject of seizure of moveable property by the police and its disposal, cannot be allowed to hold the field. I, therefore, allow Writ Petition No.3321 of 2005 and set aside the impugned orders with a direction to the local police to hand over the vehicle to its purchaser Javaid Iqbal, forthwith. Writ Petition No.2922 of 2005 filed by the Crescent Bank Ltd. stands dismissed as having not been pressed.

9. Vide order dated 18-2-2009 a notice was issued to Sohail Akhtar, S.H.O. requiring him to explain as to how and with what authority he seized the vehicle under section 550, Cr.P.C. depriving the purchaser from its use for about four years. Office is directed to construct a separate file in this regard and re-list the same for reply of the S.H.O., on 4-3-2009. H.B.T./J-8/L Petition allowe