2004 PLP 943 (YLR)

It appears that Motorcycle bearing Registration No.RNM-2776 CD-70 Honda of red colour was stolen away on 23-4-2003 while one Arbelo had parked the same in front of his quarter. It also appears that while allowing the revision application the learned III Additional Sessions Judge, Sukkur found that motorcycle/case property stands already mutated in the name of the applicant and such fact was got confirmed from the Motor Registration Authority before passing such order. Arbelo who had lodged the F.I.R. has also filed his affidavit stating therein that he has no objection if motorcycle in question is restored to present applicant Ali Muhammad Kalhoro. It further appears that the learned III Additional Sessions Judge instead of asking the applicant to furnish surety for taking the motorcycle on Superdari basis, ordered for furnishing of security in the sum of Rs.50,000 to the satisfaction of the learned Magistrate. Mr. Arjandass learned counsel for the applicant states that he tried to furnish surety but the learned Magistrate declined to accept the same and insisted for security Lither in cash or through bank guarantee. When this fact was brought to the notice of the learned III Additional Sessions Judge, Ghotki, he too asked for the security as already ordered by him. Mr. Arjandass learned counsel for the applicants has argued that the demand of security instead of surety is a very harsh order and against the spirit of Chapter XLIII of the Criminal Procedure Code, 1898 which deals with the disposal of `property' pending the trial or after conclusion thereof and the property could even be restored on personal bonds. According to the learned counsel there was no justification whatsoever for demanding `security' after recording a definite finding that the present petitioner is the owner of the motorcycle in question as verified by the Motor Vehicles Registration Authority, Rahimyarkhan as well as the affidavit filed by the complainant Arbelo from whose possession the motorcycle in question was stolen, to the effect that actually the petitioner Ali Muhammad Kalhoro is the owner of the property in question. Section 516-A which deals with the powers of the Court to order for the custody and disposal of the property pending trial in certain cases has not laid down any such condition for demanding the security from the claimant or the person applying for custody on Superdari basis to a property involved in a criminal case or regarding which any offence appears to have been committed. What the law has said is that "the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of enquiry or treat". Thus it will be seen that it has been left open to the discretion of the Court to pass such order as it thinks fit. However, in section 517 which refers to disposal of the property regarding which the offence is committed, it has been clearly laid down that the Court is not prohibited from delivering any property under the provisions of subsection (1) to any person claiming to be entitled to the possession thereof, on his executing a bond with or without sureties to the satisfaction of the Court, engaging to restore such property to the Court if the order made under this section is modified or set aside on appeal. (Underlining is by me). For ready reference it shall be beneficial to reproduce subsection (4) to section 517, Cr.P.C. which reads as follows:-- "S. 517 .......................... (2) .......................... (3) .......................... (4) Nothing in this section shall be deemed to prohibit any Court from delivering any property under the provisions of subsection (1) to any person claiming to be entitled to the possession thereof, on his executing a bond with or without sureties to the satisfaction of the Court, engaging to restore such property to the Court if the order made under this section is modified or set aside in appeal." A bare reading and comparison of sections 516-A and 517 leaves no room for doubt to reach at the conclusion that property claimed by an actual owner in respect whereof some offence has been committed could be restored even on personal bond what to say of the surety or security. Indeed the discretion is to be exercised by the Court while passing such order after keeping in view the facts of each case which usually differ from each other, but the order should not be so harsh which virtually nullifies the effect of the said order. In the present case, there appears to be no justification in demanding cash security or bank guarantee from the applicant/petitioner whose title was itself got verified by the Appellate Court while hearing his revision application and before passing an order in his favour. Mr. Ghulam Sarwar Korai learned counsel for the State has not disputed rather conceded to this legal aspect of the matter. In view of the above stated factual and legal position I agree with Mr. Arjandass that the impugned order to the extent of demand of security instead or personal bond or surety appears to be harsh and unjustified, arid needs to be modifies accordingly. Resultantly this application is granted and the impugned order passed by the learned III Additional Sessions Judge is modified to the extent that the word "security" shall be substituted by the word of "surety" and the motorcycle in question shall be restored to the applicant on furnishing solvent surety in the sum or Rs.50,000 and P.R. bond in the like amount to the satisfaction of the trial Court. N.H.Q./A-9/K Petition allowed.