2008 PLP 1416 (MLD)

KAZIM ALI MALIK, J.

One Khuda Bakhsh got registered a case F.I.R. No.360 of 2007, dated 5-12-2007 under sections 302/324/ 148/149/109, P.P.C., at Police Station Barana, District Jhang with an allegation that the accused persons nominated in the F.I.R. reached the spot in a car No.IDH No.7005 and committed the crime.

2. The Investigator seized the above said car. Muhammad Hanif, petitioner herein, made an application before the Area Magistrate for temporary custody of the car claiming to be its owner, which was dismissed vide few worded order, dated 15-1-2008 with an observation that the car was a piece of evidence in a case exclusively triable by the Court of Session. The petitioner called in question legality and correctness of the above said order of the Area Magistrate through Revision petition, which was made over to a learned Additional Sessions Judge, Chaninot, who allowed the request for Superdari of the car subject to furnishing a bond in the sum of Rs.5,00,000 with one surety in the like amount to the satisfaction of Trial Court after recording of prosecution evidence. Feeling aggrieved the petitioner has invoked the inherent jurisdiction of this Court and called in question the validity of the order of learned Additional Sessions Judge, whereby he postponed the request for temporary custody of the seized car till recording of prosecution evidence.

3. The learned Law Officer present on Court's call attempted to argue that the learned Additional Sessions Judge rightly refused to hand over the vehicle to its owner as an offence of murder and attempted murder had been committed in respect of the vehicle.

4. I have heard the learned counsel for petitioner and have gone through the record.

5. I am unable to agree with the contention of learned Law Officer for the simple reason that no offence, whatsoever, had been committed with regard to the vehicle seized by the police. The only allegation set up in the F.I.R. was that the accused persons reached the spot at the relevant time in the said car. The petitioner is owner of the vehicle. There is/was no rival claimant of the car. The petitioner established and proved his ownership over the car by producing its Registration Book in his name. The learned Additional Sessions Judge also observed after examining the original Registration Book of the car that it stood registered in the name of Muhammad Hanif, petitioner. To the hard luck of the petitioner the car undisputedly owned by him is still with the local police. At the cost of repetition it is note worthy that the prosecution case set up in the F.I.R. of murder case, in brief, was that the accused persons used the car for reaching the place of occurrence. It is an established principle of law that if a vehicle is used by an offender for going to or running from a place where the offence is committed by him the vehicle so used by him; cannot be said to have been used for the commission of that offence and the vehicle cannot be taken into possession by the police as case property. This view is supported by case law laid down in Syed Raza Shah v. The State (1971 PCr.LJ 19), Mst. Khudija Begum v. Sessions Judge, Sahiwal (1986 PCr.LJ 945), Syed Bahwal Shah v. The Crown (PLD 1951 Baghdadul Jadeed 57) and Sheraz Elahi v. The State (1994 PCr.LJ 1935).

6. Undisputedly, the petitioner is not an accused in the above said murder case. It was alleged in the said F.I.R. that the accused persons named therein had used the car for reaching the place of occurrence. I am, therefore, of the considered view that there was no legal justification to take into possession the car in the above said murder case.

7. The petitioner was the only person, who requested for temporary custody of his owned car. The Area Magistrate declined his request without assigning cogent reasons. The learned Additional Sessions Judge accepted the claim of petitioner over the 'disputed car, but postponed his request for its Superdari till recording of evidence without taking into consideration the case-law, referred to above. In the circumstances I see no reason to allow the local police to keep the car in their custody, particularly when it had not been used in commission of any offence. I, therefore, feel no difficulty in concluding that the Courts below failed to follow the law on the subject laid down by this Court and the apex Court.

8. For what has been stated above, the impugned orders passed by the Area Magistrate and the Additional Sessions Judge are declared to have been passed without lawful authority and of no legal effect. Consequently, this petition is allowed. The impugned orders are set aside with a direction to the Area Magistrate to ensure Superdari of the car to the petitioner subject to furnishing of a bond in the sum of Rs.1,00,000 to his satisfaction. M.H./M-187/L Petition allowed.