2003 PLP 791 (YLR)

Date of hearing: 8th January, 2003. This is a petition under section 561‑A, Cr.P.C. filed by Mahboob Khan petitioner for the release of Vehicle (Suzuki Van bearing Registration No. PRM 4490 on Superdari to him till the decision of case F.I.R. No. 79, dated 20‑12‑2000 under sections 419/420/471, P.P.C., Police Station. West Cantt., Peshawar.

2. Learned counsel for the petitioner submitted that. the vehicle in question was originally purchased by one Khan Zali from Shah Motors (Regd.) authorized dealer of M/s. Pak Suzuki Motor Co. Ltd. University Road, Peshawar in the initial stage and changed hands to numerous car purchasers which lastly fallen to the hands of the petitioner. He advanced that under sections 523 and 550, Cr.P.C. the prosecution was required to take necessary instructions from the concerned Judicial Magistrate but they did not strictly follow the provisions in vogue in the matter. He further argued that the vehicle in dispute is neither stolen property nor it is involved in any criminal case. On 20‑12‑2000 the said vehicle was impounded from Rahman Gul driver of the petitioner by the S.H.O., Police Station West Cantt. and after receipt of F.S.L. report a case under sections 419/420/471, P. P. C . was registered against the driver of the petitioner vide F.I.R. No. 79, dated 20‑12‑2000.

3. Mr. Abdul Karim, Advocate appearing for the State, however, could not controvert the contentions advanced by the learned counsel for the petitioner and admitted that there is nothing on the record to show that the car in dispute is a stolen property or involved in any criminal case except F. S. L. report that the Chassis number is welded which too bears the same number as envisages from the Certificate issued by the Shah Motors Ltd. and Pak Suzuki Motor Co. Ltd. dealers. The learned State Counsel, therefore, did not oppose the Superdari of the vehicle in question to the petitioner.

4. I have heard the learned counsel for the petitioner as well as for the State and have also gone through the record of the case. In order to examine the respective contentions of the learned counsel for the parties, it will be convenient to refer to sections 523 and 550 of the Criminal Procedure Code which are as follows:‑‑ "Section 523(1).‑‑‑The seizure by any Police Officer of property taken under section 51, or alleged or suspected to have been stolen, or found under circumstances which create suspicion of the commission of any ,offence, shall be forthwith reported to a Magistrate who shall make such order as he thinks fit respecting the disposal of such property or the delivery of such property cannot be ascertained, respecting the custody and production of such property. (2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit. If such person is unknown the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation. Section 550.‑‑‑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 crime. Such Police Officer, if subordinate to the officer‑in‑charge of a police station, shall forthwith report the seizure to that Officer. "

5. Section 523, Cr.P.C. reproduced above provides the procedure by police upon seizure of property taken under section 51, Cr.P.C. or stolen (seized under section

550. Cr.P.C.). On a plain reading of this section it is clear that proper procedure was not adopted by the police in this case as no intimation was sent by the police to the concerned Magistrate. Admittedly the vehicle in question belonged to the petitioner. There is no dispute that it was stolen property nor it is involved in any criminal case. The documents of the said vehicle are properly maintained by the petitioner. The only question as to the chassis number which is not changed but is alleged to be welded which question is a matter of evidence and can be seen at the time of trial. Apart from this the retention of the vehicle in police custody for an indefinite period without there being any progress in the case even after ‑the lapse of more than two years as in this case, would mean nothing but complete decay, deterioration and damage thereto which too cannot be allowed under any provision of law. The documents placed with the petition would prima facie show the petitioner to be the owner of the vehicle in dispute at least in the absence of any rival claimant.

6. For what has been stated above, this petition is allowed and it is ordered that the vehicle in question be handed over to the petitioner on ' Superdari' subject to furnishing surety bonds in the sum of Rs. one lac to the satisfaction of Illaqa/Judicial Magistrate with the direction to the petitioner not to sell or transfer the vehicle in dispute till the decision of case F.I.R. No. 79 under sections 419/420/471, P.P.C., Police Station, West Cantt., Peshawar and he will produce the same as and when required by the competent Court. However, this order will not prejudice the rights of a rival claimant, if any, with better title. N.H.Q./692/P Petition allowed.