2007 P Cr (PLP)

IQBAL HAMEED-UR-RAHMAN, J.

Through the instant writ petition the petitioner has challenged the taking into custody of his Pajero/Mitisubishi bearing No.BC-2901/Sindh, Chassis No.CONV 440 PJ 00791 engine No.4056.

2. Brief facts necessary for the determination of this writ petition are that the above said vehicle of the petitioner was taken into custody by the police from the house of the petitioner; that the petitioner had repeatedly approached the respondents for the return of the vehicle but all in vain and subsequently, the petitioner was told that the said vehicle has been taken into custody by the police under section 550, Cr.P.C. to be a stolen property. It is further stated by the petitioner that he along with the registration book of the vehicle had approached the D.P.O. Vehari but has failed to release the vehicle. Since the vehicle taken into custody by the police, the police is enjoying the luxuries of the vehicle of the petitioner and falsely conducting these proceedings.

3. Report was called from the respondents, which was submitted wherein the respondents have stated that the vehicle has been taken into custody vide Daily Diary No.23 dated 25-12-2006 at the Naka at Adda Khichiwala Burewala Road where the driver of the vehicle on being stopped, left the vehicle there and ran away. It is further stated that the vehicle was taken into custody on 25-12-2006 and the petitioner had got the same subsequently transferred in his name on 28-12-2006, the same has been done with mala fide intention. That the subject vehicle is to be examined by the Forensic Science Laboratory for verification of the engine number and chassis number. It is further stated that due to the non-availability of the expert, 30 or more cars are in the custody of the respondents for verification by the Forensic Science Laboratory and in this regard the respondents have approached the Director Forensic Science Laboratory and registration authority of Sindh the same is being processed and as soon as the vehicle is cleared the petitioner may apply for Superdari of the vehicle in accordance with law. Moreover this writ petition is not maintainable as the alternative remedy is available to the petitioner. It is further submitted by the learned A.A.-G. that it would be pertinent to mention here that the petitioner has remained involved in the following cases:-- (i) F.I.R. No.38 of 1995 under section 324/34, P.P.C., Police Station City Mailsi; (ii) F.I.R. No.154 of 2001 under section 506/186, P.P.C. Police Station City Mailsi; (iii) F.I.R. No.76 dated 28-2-2006 under section 120-B, P.P.C. Police Station Mitroo.

4. In rebuttal the learned counsel for the petitioner has submitted that the vehicle is being illegally detained by the respondents in clear violation of law and in this regard he placed. reliance on the case of Muhammad Ramzan v. Station House Officer, Police Station Baghbanpura, Lahore and 2 others 1995 PCr.LJ 1947 wherein it has been held that the seizure of property made by police under section 550, Cr.P.C. itself becomes illegal if the police does not report it to a Magistrate as required under section 523, Cr.P.C. and the movable property seized has to be returned to the person from whom the recovery is made. In the instant case the police has failed to comply with the mandatory requirements of law under section 523, Cr.P.C. as such, the petitioner is entitled to the release of the vehicle as is propounded in the above said case. Further reliance is `placed on the following cases`.-- Ghulam Hussain v. The State 2004 YLR 148, Abdul Ghafoor v. S.H.O. and others 2001 MLD 670, Mumtaz Hussain v. Muhammad Aslam and 3 others 2002 YLR 398, The Collector of Customs v. Haji Fazal Din and 4 others 1999 YLR 1680, Kamran Shaukat v. Hamid Muhmud A.S.-I. and others 2000 YLR 2930, Tajamul Khan Bangash v. S.H.O. and others 1999 PCr.LJ 1577, Hassan Muhammad v. Nazar Hussain and others 2005 SCMR 1063 and Ali Raza Asif v. S:P. Hafizabad and 3 others 1998 PCr.LJ 1089. It is further contended that conduct of the police smacks of foul play and lack of bona fide. Reliance is placed on the case of Humayun Azam v. Ch. Sadiq Inspector/S. H.O. and others 1999 MLD 1676. Learned A.A.-G. could not rebut the contentions raised by the learned counsel for the petitioner in rebuttal, which has been supported by large number of judgments of the superior Courts that even after the passing of 8 months the respondents have not been able to comply with the mandatory provisions of law under section 523, Cr.P.C.

5. Keeping in view the above referred judgments, this writ petition is accepted and the seizure of the vehicle of the petitioner by the police on 25-12-2006 is declared to be without lawful authority and of no legal effect. The respondents are directed to deliver back the Pajero/Mitisubishi bearing No.BC-2901/Sindh, Chassis No.CONV 440 PJ 00791 Engine No.4056 to the petitioner forthwith as the ownership according to the Registration Book available on the record shows that the petitioner is the owner of the vehicle in question therefore, vehicle be released to the petitioner. N.H.Q./A-152/L Petition allowed.