2017 PLP 289 (YLRN)

SHAHNAWAZ TARIQ, J.

Through captioned criminal revision application, applicant M/s. Metco Textile Pvt. Ltd. Karachi, Nooriabad, through Special Attorney Sher Mohammad has impugned order dated 25.03.2015, passed by the Court of IInd Additional Sessions Judge, Khairpur, whereby application under Section 561-A Cr.P.C for restoration of case property i.e. 150 cotton bales, was allowed subject to furnishing solvent surety in the sum of Rs.36,00,000/- and P.R. bond in the like amount.

2. Relevant facts spelt out from instant revision application are that applicant is dealing with the Textile business and established such unit at Nooriabad. Applicant purchased 150 cotton bales from Pak Cotton Ginning Factory, Sanghar, and loaded the same on a Trailer, but at Matyari some unknown culprits snatched said Trailer and matter was reported to the police instantly. Police chased the culprits and after an encounter, said Trailer was recovered and FIR No.121 of 2014 was lodged at Police Station, Faiz Gunj, under sections 324, 353, 148, 149, 412, P.P.C. and cotton bales were taken into custody by the police.

3. Learned Counsel for the applicant contended that applicant approached the trial Court for release of cotton bales by moving application under section 516-A, Cr.P.C. and as per directions of learned trial Court, Power of attorney was also produced before the Court and considering no objection by State Counsel as well as concerned SHO, learned trial Court granted his application subject to furnishing solvent surety in the sum of Rs.36,00,000/- and PR bond in the like amount; that seized cotton bales are lying with police station, but applicant could not furnish solvent surety due to financial crises hence by taking lenient view applicant may be permitted to execute P.R. bond before the trial Court. Learned counsel relied on 2005 PCr.LJ 1510, 2008 MLD 1107 and 2004 YLR 943.

4. Learned APG considering the arguments advanced by learned counsel for applicant, extended no objection.

5. Perusal of material available on record and consideration of arguments advanced by the learned counsel for the parties supported by the case law emanate that applicant M/s. Metco Textile (Pvt.) Ltd. purchased 150 Cotton bales from Pak Cotton Ginning Factory, Sanghar, and transported the same for Nooriabad, but its trailer was snatched by unknown culprits, however, Khebrani police chased the culprits and succeeded to recover the subject Trailer and loaded cotton bales were seized by the police as case property.

6. At the first instance, application was moved by one Tarique Mustafa Lashari for restoration of case property which was declined by learned trial Court vide order dated 25.09.2014, on the ground that neither driver of snatched Trailer nor owner of the property, had come forward to claim custody of case property. Subsequently, applicant Mohammad Fayaz moved application under section 516-A, Cr.P.C. for restoration of case property which was also declined by the learned trial Court vide order dated 20.11.2014, on the ground that neither applicant was owner of the case property nor had produced power of attorney issued by the Company for release of seized Cotton bales. Later on, applicant again filed second application for subject purpose and also produced power of attorney issued by Director of applicant company namely Rafique Tahira which was also verified by Investigating Officer from the company. State counsel extended no objection to accede said application, while concerned S.H.O. submitted report that case property is no more required further for investigation. Considering the entrie scenario, learned trial Court vide impugned order allowed application moved by applicant subject to furnishing solvent surety equivalent to its value and PR bond in the like amount.

7. For appropriate decision, it would be advantages to re-produce section 516-A, Cr.P.C. as follows:-- "S.516-A. Order for custody and disposal of property pending trial in certain cases. When any property regarding which any offence appears to have been committed, or which appears to have been used for the commission of any offence is produced before any Criminal Court during any inquiry or trial, the court may make such order, or trial, and, if the property is subject to speedy or natural decay, may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of." Perusal of section 516-A, Cr.P.C. reflects that this section provides the mechanism to the criminal Court for restoration of temporary custody and disposal of seized property till pending trial, when an offence appears to have been committed in respect of any property or it appears that the said property has been used for the commission of any offence. However, in present case both ingredients of the section are missing. Indeed, the ownership of applicant over the case property is established through relevant documents and such claim has not been controverted by any objector nor any counter claim has been agitated in respect of seized property before the investigating officer nor learned trial Court.

8. It is significant to mention that section 516-A, Cr.P.C. mandates for the restoration of temporary custody of the case property during pendency of trial with sole purpose to ensure the production of case property at the time of recording evidence of witnesses or mashirs or as and when directed by the Court. Solvent surety is neither demand of section 516-A, Cr.P.C. nor condition precedent to compel the owner of the property for further hardship which is amounting to penalize him for committing no fault. When there is no other claimant of seized property, said property should be released in favour of owner on mere execution of P.R. bond and he should not be penalized by compelling to furnish solvent surety for release of his own property. Demand of solvent surety is not wisdom of the above section nor owner of property should be treated at par to the accused. Reliance in this context is placed on the case of Ajjab Khan v. The State (2005 PCr.LJ 1510), Ali Muhammad Kalhoro v. The State (2004 YLR 943) and Nafees Iqbal v. The State (2008 MLD 1107).

9. Indeed, the Cotton bales were recovered by the police on 22.08.2014 and since then case property is lying in open sky with Khebrani police and undoubtedly during period of 15 months its worth has also been devalued, decreased and damaged. Conversely, during the period of 15 months, despite serious efforts, applicant due to cripple financial circumstances, could not furnish solvent surety for release of case property. Consequently, on one hand applicant was deprived of its valuable articles, and on other hand, applicant sustained losses by devaluation of the cotton bales without any fault on its part. It is well settled that no person under litigation should suffer from any act or omission of the Court in the dispensation of justice. Reliance is placed on the case of Mian Muhammad Talah Adil v. Mian Muhammad Latif (2005 SCMR 720).

10. Considering the facts and circumstances referred supra and in view of no objection extended by learned APG, instant revision application stands disposed of with the modification in impugned order dated 25.03.2015 to the extent that instead of furnishing solvent surety, applicant will execute only P.R bond in the sum of Rs.36,00,000/- before learned trial Court for release of case property. SL/M-2/Sindh Application allowed.