2008 PLP 571 (YLR)

IJAZ AHMAD CHAUDHRY, J.

Through this petition under section 561-A, Cr. P. C. the petitioner seeks setting aside of orders dated 16-1-2007 and 25-4-2007 passed by the learned Judicial Magistrate Piplan District, Mianwali and the learned Additional Sessions Judge, Piplan District Mianwali, respectively, through which car has not been given to the petitioner on Superdari.

2. The petitioner claims that he is owner of car bearing Registration No.837/LHK Chirrade red colour Chassis No.1100714208 Engine No.1165947 Model 1983. The car was taken into possession by the Police in case F.I.R. No. 137, dated 14-10-2006, registered under sections 464/452/324/109/148/149, P.P.C. at Police Station Harnoli, District Mianwali.

3. The learned counsel for the petitioner contends that there is other claimant of the car and remaining of the car in police custody will cause serious damage to the car; that even otherwise, the petitioner is owner of the said car and he having not committed any offence cannot be deprived of the custody of the car which may be delivered to him of superdari and he will be responsible to produce the same whenever is required by any Court of law.

4. On the contrary, the learned Additional Prosecutor-General does not oppose this application.

5. I have heard the learned counsel for the parties and also perused the record with due care and caution.

6. The car was originally owned by Major Abid Rehan and subsequently it was transferred in the name of the petitioner on 19-12-2006. The petitioner claimed that an open letter was issued in favour of the petitioner by Major Abid Rehan and he being owner is the only claimant of the said car. After perusal of the original Registration Book in the Court, which has been returned, it is found that the petitioner is owner of the car. It is found that remaining of the car in police custody for indefinite period will cause damage to its machinery. Even if Zulfiqar co-accused, who is brother of the petitioner is fugitive from justice it is not a ground for refusal of the custody of the car to the bona fide purchaser/owner of the said car as the said criminal case has yet to be finally decided by the Court of competent jurisdiction. Both the Courts below- have failed to exercise the jurisdiction vested in them by law properly and thus both the impugned orders have been rendered illegal and without jurisdiction, which are set aside. Hence, this petition is accepted and the application submitted by the petitioners before the learned Magistrate Section 30, Piplan is allowed and. the car in question will be given to the petitioner on Superdari subject to furnish surety bond in the sum of Rs. 2,00,000 (Rupees two lac only) to the satisfaction of the learned Magistrate till the final disposal of the case. However, the petitioner will be bond to produce the car as and when required by any Court of competent jurisdiction in connection with the proceedings of the said criminal case. B.H.T./S-159/L Petition accepted.