2008 PLP 600 (MLD)

AGHA RAFIQ AHMED KHAN, J.

This is a Criminal Revision Application filed under section 439, Cr.P.C. against the order, dated 2-12-2007 passed by learned VII-Additional Sessions Judge, Karachi South in Sessions Case No.136 of 2007 whereby application filed by the applicant for reduction of surety amount for release of Car No. M-2039 was dismissed. Facts leading to this Revision Application are that on 7-3-2007 a case was registered at Boat Basin Police Station under section 395, P.P.C. on the basis of F.I.R. lodged by complainant Naveed stating therein that some culprits on the force of weapons looted him and his friends and escaped from the vardat in Car No. M-2039. Subsequently police recovered the car and in the challan it has been shown as case property'. Application under section 516-A, Cr.P.C. was moved by the applicant in the trial. Court for return of the car. The trial Court passed order, dated 8-11-2007 operative part whereof reads as under:-- "Since the applicant has purchased the vehicle in question from its registered owner namely, Zeeshan Khan, who has confirmed the sale transaction, therefore, in order to avoid damage, it is ordered that the interim custody of the vehicle bearing Registration No.M-2039 be returned to the applicant subject to furnishing surety in the sum of Rs.1,00,000 and P.R. bond in the like amount with undertaking that the applicant would keep the vehicle in same condition and shall produce the same m Court as and when required." Therefore another application was moved by the applicant before the trial Court for reduction of surety amount and the learned trial Court after hearing the parties rejected the application. Mr. Jawaid Haider Kazmi, Advocate for the applicant has argued that the car in question is not case property as according to the contents of the F.I.R., the accused persons after commission of the offence left the place of incident while driving the said car which was parked in the parking area. He has relied upon the case reported in (i) 1971 PCr.LJ 19, (ii) 1989 PCr.LJ 1110, (iii) PLD 1951 (B.J.) 57, (iv) 2005 PCr.LJ (Kar.) 1510, (v) 1988 PCr.LJ (Kar.) 1353 and (vi) 1984 PCr.LJ 1935. Mr. Sabir Haider, advocate for the State has no objection to the return of the car in question to the applicant but his contention is that at least original documents of the car be kept as security in the Court till the disposal of the main case. I have given full consideration to the averments made by the learned counsel and have gone through the above case-law. I am fortified by the case-law relied upon by the learned counsel for the applicant. The ratio decidendi of the above-cited decisions is that the vehicle in which the accused persons are said to have escaped after commission of offence cannot be treated as `case property'. In the case reported in 1989 PCr.LJ Karachi. 1110 it has held as under:-- "There is allegation that the above taxi car was used for going to and escaping from the place of incident by the culprits, which in my view is not covered within the meaning of the words which appears to have been used for the commission of any offence' in section 516-A, Cr.P.C. To take a common example, if the culprits escape in a train after the commission of offence the train will not fall within the mischief of the aforesaid words. This view gets support from the case of Haji Rab Nawaz v. The State reported in 1988 PCr.LJ 1353." In view of above case-law and the facts of the instant case, I agree with the advocate for the applicant that the car in question cannot be treated as `case property'. In the circumstances, I admit this Criminal Revision Application and direct that the car in question be handed over to the applicant on execution of P.R. Bond in the sum of Rs.2,00,000 (Rupees Two Lacs only) for keeping the car in the same condition and produce the same in the Court as and when required and till disposal of the case, original documents of the car be deposited in the trial Court. The Criminal Revision Application stands disposed of in the above terms. H.B.T./M-3/K Order accordingly.