1989 PLP 2808 (MLD)

A Lancer Car No. 259-072 belonging to respondent No.l was stolen during the period when it was parked in `Samad Complex' for the purpose of sale. On 14-9-1988, it was seized from the possession of applicant by C.I.A. A case under section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979L, was registered at Ferozabad Police Station. The temporary custody of the car was given to applicant on furnishing security/bond in the sum of Rs. three lacs, under the orders of A.C.M. Court No. VII (East) Karachi. The respondent No.1 challenged this order in Criminal Revision No. 76 of 1988, which was allowed by Miss Mahjabeen, III Additional Sessions Judge (East) Karachi, vide order dated 6-12-1988, which is the subject-matter of this application filed under section 561-A, Cr.P.C.

2. I have heard Mr. MA. Kazi, learned counsel for the applicant and Mr. Khurshid Ahmad Qureshi, learned counsel for respondent No.1.

3. Section 516-A, Cr.P.C. deals with the powers of Court in the matter of disposal of property pending trial in certain cases in the following words:- "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 as it thinks fit, for the proper custody of such property pending the conclusion of the inquiry 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."

4. Mr. MA. Kazi, learned counsel for applicant has contended that interim custody of the property seized by police as one creating suspicion of commission. of offence should normally be handed over to person from whom property is recovered. The cases reported as Ch. Muhammad Farook v. The State and another 1970 P Cr. L J 1253, Zardullah Khan v. The State P L D 1971 Kar. 906, Haji Muhammad Jamal Khan v. The State and another 1972 P Cr. L J 363 and Zaheeruddin v. Muhammad Inayatullah Khan and another 1973 P Cr. L J 2535 support this contention raised on behalf of applicant.

5. A different view was, however, taken in Sahibzada v. The State reported in 1974 P Cr. L J Note 96 at page 60, and Maqbool Hassan v. Masood Butt and others reported in 1985 P Cr. L 3 2876; wherein it was observed that order under section 516-A, Cr.P.C. is to be passed judicially on material produced and ordinarily in favour of the person who appears to be prima facie entitled to the possession of the property. The learned Additional Sessions Judge found respondent No.1 prima facie entitled to the custody of car being its owner and this finding which is interim in nature is not open to any exception. The applicant is an accused person nominated in Crime No. 411 of 1988, Ferozabad Police Station. The respondent No.1 has certainly a letter claim for interim custody of the said car on Superdiginama.

6. An interesting legal question arises, whether the jurisdiction of the High Court can be invoked when the Court of Revision exercises its jurisdiction on sound principles. Section 561-A, Cr.P.C. does not confer any new power on High 1 Court. At any rate the High Court should not exercise its inherent powers unless it is absolutely necessary. No such situation exists in this case. The application under section 561-A, Cr.P.C. has got no merits and is dismissed accordingly. N.H.Q./M-773/K Petition dismissed.