Fazal Maula vs State etc

2013 Y L R 2088

[Peshawar]

Before Assadullah Khan Chamkani, J

FAZAL MAULA---Petitioner

Versus

The STATE and 2 others---Respondents

Criminal Miscellaneous No.9-M of 2013, decided on 9th April, 2013.

Criminal Procedure Code (V of 1898)---

----Ss. 516-A, 517 & 561-A---Return of vehicle on "superdari", application for---Petition for quashing of order---Petitioner had sought quashing of order, whereby his application for return of the vehicle on "superdari", was dismissed---Vehicle in question was a non-customs paid one-- -Nothing was on record to show that vehicle in question was either a stolen property, or was ever used in the commission of any crime---Only allegation against the petitioner was that he had displayed a false number plate of another registered vehicle at the relevant time---Such question was to be resolved at the time of trial after recording of evidence---If the vehicle in question was left in Police Station, same would either be used by the Police, or parked without being used resulting its damage, deterioration and devaluation---Neither there was rival claimant of the vehicle in question, nor was same required for further investigation---Nothing was on record that chassis or engine number of vehicle in question had been refitted or welded---There being no other claimant and no evidence available to the effect that the vehicle was either a stolen one or its chassis/engine number had been re-punched, both the courts below were not justified to refuse the "superdari" of the vehicle in question to the petitioner---Petition was accepted and vehicle in question was ordered to be returned to the petitioner on "superdari", subject to furnishing bail bond with two sureties, in circumstances.

Abdul Qayum for Petitioner.

Khawaja Salahuddin for the State.

Date of hearing: 9th April, 2013.

JUDGMENT

ASSADULLAH KHAN CHAMKANI, J.---The petitioner Fazal Maul through instant petition has sought for the quashment of orders dated 14-2-2013 and 6-2-2013 passed by learned Additional Sessions Judge/Izafi Zila Qazi, Dargai and learned Judicial Magistrate / Illaqa Qazi, Dargai, whereby application of the petitioner for return of the vehicle on "superdari" was dismissed.

2.On 8-1-2013 a motorcar exhibiting number plate bearing No.MY 075/ Islamabad was suspected to be either stolen or involved in some crime, was taken into custody by the Post Commander, Qaid Abad. Enquiry under section 156(3), Cr.P.C. was initiated, which culminated into registration of a case vide F.I.R. No. 4 dated 29-1-2013 under sections 420/471/ 468, P.P.C. at Police Station, Qaid Abad, against the present petitioner.

3.Learned counsel for the petitioner submitted that the petitioner is the sole owner of the vehicle in question and there of no other rival claimant of the same. He next argued that the vehicle in question is being misused by the local police very roughly and is likely to be deteriorated. He further argued that the vehicle is neither a stolen property nor used in the commission of an offence. He argued that non-custom paid vehicles are plying in the Malakand Division and they are only registered in some Police Station, therefore, the petitioner is entitled to the custody of motor car on "superdari" and the impugned orders are liable to be quashed.

4.On the other hand, learned State counsel argued that the petitioner had affixed a fake number plate of the other vehicle having registration number of Islamabad, which is supported by the report of Excise and Taxation Officer, Islamabad, therefore, the petitioner is not entitled the custody of the vehicle.

5.Arguments of learned counsel for the parties heard and record of the case perused.

6.Admittedly, the vehicle in question is a non-custom paid one and such type of vehicles are available in Malakand Division and do ply within its territorial jurisdiction. There is nothing on record to show that the vehicle in question was either a stolen property or was ever used in the commission of any crime. The only allegation against the petitioner is that he had displayed a fake number plate of another registered vehicle at the relevant time is the question to be resolved at the time of trial after recording of evidence. If the vehicle in question is left in police station either used by the levy police or parked without being used, there is likelihood of its damage, deterioration and devaluation. Besides the above, neither there is rival claimant of the vehicle in question nor is it required for further investigation. There is also nothing on record that chassis or engine number of the vehicle in question has been refitted or welded. Therefore, retention of the vehicle in police custody for an indefinite period would result in its complete decay, which could not be allowed under any provision of law.

In view of the above facts and circumstances, when there is no other claimant and there is also no evidence that the vehicle is either a stolen one or its chassis/engine number has been re- punched and refitted, therefore, both the courts below were not justified to refuse the "superdari" of the vehicle in question to the petitioner. Therefore, this petition is accepted and the car in question be returned to the petitioner on "superdari" subject' to furnishing bail bonds in the sum

of Rs.Ten lac (10,00,000) with two sureties each in the like amount to the satisfaction of Illaqa Judicial Magistrate. The petitioner is directed to get the vehicle registered in a nearest Police Station within fifteen days as per practice. He is further directed to produce the vehicle in question as and when required to the court or police.

HBT/196/P Petition accepted.