P L D 2004 Lahore 295 (PLP)

Syed Sajjid Hussain Shah, A.A.‑G. and Raja Saeed Akram Khan, A.A.‑G. for Respondents. Date of hearing: 15th December, 2003. The Pakistan Motors Transport Federation (Regd.) alongwith United Frontier Punjab Transport Owners and Workers Association, petitioners, herein have filed this writ petition and grievance has been made that as soon as public transport vehicle is involved in accident and an F.I.R. is registered against the concerned driver and the public transport vehicle in the shape of Bus, Wagon, etc. is taken into custody by the concerned police and the owner of vehicle is directed to get released the vehicle on 'Superdari' from the concerned Judicial Magistrate.

2. Learned counsel for the petitioners contends that in process of 'Superdari' owner of the vehicle firstly has to get the orders from the Judicial Magistrate regarding the submission of the report from the concerned S.H.O. and upon this the concerned police official submits report alongwith the record to the Court and after going through the report and the record, the Judicial Magistrate passed order of 'Superdari' in favour of the owner of the vehicle on submission of surety bonds equivalent to the value of vehicle involved in accident by producing the local surety which procedure is in violation of section 95 of the Motor Vehicles Ordinance, 1965. Reliance has been placed on Muhammad Rashid and others v. The State (PLD 1991 Karachi 200); Rana Muhammad Salim v. The. State (1992 PCr.LJ 750) and Karachi Bus Owners Association and another v. Inspector‑General of Police and 2 others (1995 PCr.LJ 608), adds that the vehicles involved in an accident case are not the case properties and the same cannot be dealt with like other case properties, involved in commission of the offence.

3. In pursuance of the orders of this Court, respondent No.4 has submitted report and parawise comments wherein it is stated that the vehicle involved in an accident case or used for commission of the offence, its disposal is dealt with the order under the provision of section 516‑A, Cr.P.C. for which Illaqa Magistrate is competent authority.

4. On the other hand, learned Deputy Attorney‑General and Assistant Advocates‑General on behalf of respondents Nos. 1 and 2 contend that there is no need of any order of any. Judicial Magistrate for return of the vehicle on 'Superdari' provided vehicle is not involved in commission of any offence. Further they state that the moment vehicle involved in commission of any offence in which provision of sections 523 and 516‑A, Cr.P.C. are attracted, the owner or any person entitled for the return/custody of vehicle has to go through the procedure and only by the order of the Court, the vehicle may be given on `Superdari'.

5. I have heard the learned counsel for parties and perused the record with their assistance.

6. There is no cavil with the proposition that public transport vehicle involved in the accident cases should be released within 48 hours as per provision of section 95 of the Motor Vehicles Ordinance, 1965 and in any case neither `Superdari' is necessary nor the order of the Court is required and the condition of producing the original owner and local surety equivalent to the value of the vehicle cannot be imposed. Public transport vehicle involved in accident cases can be handed over to the person if he is owner within the meaning of section 2(24) of the Motor Vehicles Ordinance, 1965 or the vehicle is recovered from his possession In case reported as Karachi Bus Owners Association and another v. Inspector‑General of Police and 2 others 1995 PCr.LJ 608, by interpreting section 95 of the Motor Vehicles Ordinance (XIX of 1965), the Division Bench of the Karachi High Court observed that, "leaving the bus in police custody could not serve any purpose and the petitioner could not be deprived of his bus as the same was not a crime weapon. Custody of the bus with the police beyond 48 hours of its inspection by the Motor Vehicles Inspector was violative of the mandatory provisions of section 95 of the Motor Vehicles Ordinance, 1965". Action of the S.H.O. for not releasing the vehicle which was taken by him in pursuance of the case registered vide F.I.R. No.303 of 1992 on 29‑10‑1992 against the driver who was involved in a criminal case of causing death of passerby due to rash and negligent driving was declared to be without lawful authority. Similar was the case of Rana Muhammad Salim v. The State 1992 PCr.LJ 750, wherein it was held that "vehicles detained in the cases were involved in road accidents and admittedly were not the subject‑matter of any offence. None of the applicants had done anything to advance commission of an offence and they could not be held liable for the acts of their drivers. Court in such a situation was bound to release the vehicles to their respective owners for proper custody". While interpreting section 95 of the Motor Vehicles Ordinance, 1965, the Karachi High Court in case of Muhammad Rashid and others v. The State (PLD 1991 Karachi 200) has held that, "seizure of vehicle in such a matter was only for the purposes of inspection by the examiner appointed by the Government as contemplated under section 95 of the Motor Vehicles Ordinance, 1965 and for no other purposes and, therefore, it was held that the appellant could not be directed to furnish the surety for the release of the vehicle.

7. The ratio of the above mentioned case‑law of the Karachi High Court while interpreting section 95 of the Motor Vehicles Ordinance (XIX of 1965) is that the vehicle which is not involved in commission of any offence, the owners of the vehicle are not supposed to come in Court to apply for the custody of the vehicle under sections 523 and 516‑A, Cr.P.C. because under section 95 of the Act ibid on seizure of the vehicle in such a matter is only for the purpose of its inspection by the examiner appointed by the Government as contemplated in the section itself and for not other purpose at all. The cases for which the owners have to come for handing over of the custody of their vehicles fall under the different category and for that reading of provision of sections 523 and 516‑A, Cr.P.C. are relevant. To attract the provision of section 523, Cr.P.C. the property, vehicle or bus has to be taken by the police under section 51, Cr.P.C. or alleged or suspected to have been stolen, or found under circumstances which create suspicion of the commission of any offence and for that the matter shall be reported by the police to the Magistrate who shall make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the, person entitled to the possession thereof. Similarly to attract the provision of section 516‑A, Cr.P.C. regarding order of custody and disposal of the property the case (must be pending in certain Court). The necessary ingredients of sects 516‑A, Cr.P.C. are that, "property must be regarding which an offence appears to have been committed or which appears to have been used for commission of offence and secondly it must be produced before any Criminal Court during the inquiry or trial, the jurisdiction of the Court is there for the disposal of the property, which may be exercised by the Magistrate.

8. On reading of section 95, Motor Vehicles Ordinance (XIX of 1965) and sections 523 and 516‑A, Cr.P.C. it would become crystal clear that all the above three provisions have been enacted to cater different situations. This being so, I hold that under section 95 of, the Motor Vehicles Ordinance (XIX of 1965), the vehicle, bus or wagon which is not involved in commission of any offence or the same is not taken under section 51, Cr.P.C. the owners or the applicant could not be directed to furnish surety for release of the vehicle as the same has to be returned to the person entitled for the, custody of the same. But if the vehicle has been taken in possession by the police under section 51, Cr.P.C. or alleged to have been stolen found under circumstances which creates suspicion of the commission of any offence and is used for commission of any off6nce regarding which the inquiry is pending before the Court, the same has to be released by the competent Court by passing an order under section 516, Cr.P.C. and for final disposal of the property an order of the Court under section 517, Cr.P.C. is required at the time of decision of the case.

9. With the above observation and direction, this writ petition is disposed of. S.A.K./P‑4/L Order accordingly.