1994 P Cr (PLP)

Nizamuddin Baloch for Applicant. Gul Bahar Korai for A.A.-G. for the State. Date of hearing: 5th July, 1994. In this revision application petitioner Muhammad Ramzan son of Fakir Muhammad Thaheem has challenged the propriety, legality and correctness of the order, dated 11-5-1994 in which learned Sessions Judge, Larkana in Criminal Miscellaneous No.30 of 1994 has rejected the prayer of the petitioner to hand over the Truck No.QAC8695. Bed Ford, Model 1974, the case property of Crime No.19 of 1994 of Police Station Nasirabad, on Superdari to him. The brief facts of the case are that one Mashooq Ali resident of Kathiar Mohalla, District Larkana lodged report at Police Station Nasirabad on 22-3-1994 for an offence under section 320/337-G, Qisas and Davat Ordinance and 279, 427, P.P.C. alleging therein that an unidentified truck driver has caused death of two passengers namely Nizam son of Abdul Khalique and Abdul Wahid son of Khuda Bux and injuries to complainant on the same day at 2-00 p.m. on Waghan/Nasirabad Road by rashly and negligently driving the said truck. After lodging of F.I.R. the truck in question was seized by police and at present it is in the custody of Nasirabad Police as case property. Applicant who is owner of the said truck has purchased the same from one Haji Abdul Qadir about five years back but as the payment was not made fully the truck was not transferred in the name of the applicant, however, since the amount has been paid fully, transfer deed was executed in favour of applicant. Applicant used to ply truck through his driver namely Shahzado who was driving the said truck at the time of incident. The applicant had accordingly applied for return of truck to him on Superdari under section 516-A, Cr.P.C. before the learned Sessions Judge who vide his order, dated 11-5-1994, rejected the application. I have heard Mr. Nizamuddin Baloch learned counsel for the petitioner who submits that applicant being the owner of the staid truck is entitled to its temporary possession on Superdari as provided under section 516-A, Cr.P.C. and that there is no other claimant for the truck. Moreover, accused driver Shahzado has not even claimed the said truck as owner and has supported the applicant's claim as owner of the said truck. The truck in question is detained at Police Station Nasirabad since 22-3-1994 which is applicant's only source of livelihsood and that the truck in question is adversely affected in respect of its value by lying unattended and unserved at the police station. Mr. Nizamuddin Baloch learned counsel has cited authorities reported in 1974 P Cr. L J 452 in which it is held "section 516-A

Custody of property (truck) Truck, involved in crime, if out of use in Malkhana

Likely to depreciate in value during rainy season

Truck, as a matter of propriety, held, to be given in custody of owner

Security, however, to be furnished by person. resident of and having property in Province of Court concerned

Court to satisfy itself about ownership and to assess security amount a little more than actual value." He has also cited 1990 C L C (Kar.) 502, sections 516 and 117 in which it is held "Determination of ownership in criminal proceedings

Purpose of section 516-A, Cr.P.C. being a limited one, such proceedings only tentatively determine as to whom during a criminal trial, the possession of disputed property, be handed over

Such determination was not an equivalent of conclusive or even provisional determination of ownership which even in criminal proceedings must be determined under section 517, Cr.P.C. and in contentions matters would be determined in civil proceedings which have independently, to adjudicate upon that matter. Here in this case Mr. Nizamuddin Baloch has submitted the transfer letter signed by Haji Abdul Qasir which shows his National Identity Card 602-41-294442 and also Route Permit No.650, dated 19-3-1989 issued by R.T.A. Quetta which is attested by Notary Public and also Iqrarnama executed by Haji Abdul Qadir regarding the truck in question which is also signed by Haji Abdul Qadir who had sold away the truck to petitioner Muhammad Ramzan and this document is also attested by Notary Public Quetta, genuineness of these documents is not disputed. I have also heard Mr. Gul Bahar Korai for AA.-G. for the State who has opposed the application. I have gone through the papers and authorities cited by Mr. Nizamuddin Baloch, the learned counsel for the applicant. Admittedly Muhammad Ramzan prima facie is owner of the truck as there is no other claimant. Moreover the truck driver Shahzado who is accused in this case has also supported the contention of the petitioner regarding his ownership. The truck in question is only source of livelihood of the petitioner and is being adversely affected in respect of its value by remaining there unattended and unserved at the police station. In view of these facts and circumstances as stated above and case-law, transfer letter and agreement of sale produced by the learned counsel for the petitioner I, therefore, order that Truck No.QA- 8695, Bed Ford, Model 1974, being the case property of Crime No.19/94 of Police Station Nasirabad be handed over to the applicant on Superdari on furnishing solvent surety in the sum of Rs.2,00,000 and P.R. bond in the like amount to the satisfaction of the trial Court. The surety should be of the same area and petitioner should produce the truck if and when required by the police for investigation or by the trial Court during the trial of the case. The order of the learned Sessions Judge, Larkana, dated 11-5-1994 is therefore, set aside and the revision application is allowed. N.H.Q./M-1971/K Revision accepted.