THE HIGH COURT OF SINDH AT KARACHI

Criminal Revision Application No.213 of 2019

Applicants   :         Ashique Hussain through authorized attorney Muhammad Tariq son of Muhammad Haneef, through Mr. Farjad Ali Khan Advocate alongwith

Ashique Hussain (owner of vehicle in person).

Respondent          The State through Ms. Rahat Ahsan, Additional

No.1            :         Prosecutor General, Sindh.

Respondent          Additional District Judge-III, Malir Karachi

No.2            :        

Date of hearing:    20.12.2019

Date of Order  :     20.12.2019

1. For orders on M.A. No.14708/2019

2. For orders on office objection at flag ‘A’

3. For hearing of bail application.

ORDER

Abdul Maalik Gaddi, J:

1.       Urgent application is disposed of and by consent of the parties, the matter is taken up today for hearing of main application.

2-3.   Through the present criminal revision application, the applicant has challenged the operative part of the order dated 07.11.2019, passed by the learned IIIrd Additional District Judge, Malir, Karachi, in Criminal Miscellaneous Application No.123 of 2019, arising out of Crime No.616 of 2019, registered at police station Sachal Malir, Karachi under Section 320/337-G/427, PPC, whereby the learned trial Court though allowed the application under Section 516-A, Cr.P.C. filed by the applicant through his attorney, but in the following terms:-

“8.     Therefore, in my humble opinion the application in hand is allowed with subject to handover the vehicle exclusively to its real owner on furnishing solvent surety in the equal amount of the vehicle/property in question along with P.R. bond in the like amount for satisfaction of this court.”

          Brief facts giving rise to the present revision application are that on 05.10.2019 at 02:15 p.m., an accident took place at main Super Highway near Jamali Bridge/Flyover Buraq Petrol Pump in between the Car having registration No.AGU-148, Silver Colour, Model Cultus, which was driving by deceased Rehmatullah and the Bus bearing registration No.BSB-448, which was driving by accused/driver Noor Ahmed son of Muhammad Ali in a rash and negligent manner and hit the said Car and one motorcycle rider Faheem son of Jameel, due to which Rehmatullah was died, whereas, Faheem was received injuries.

          It is noted that though the criminal miscellaneous application was filed by the applicant through his attorney namely, Muhammad Tariq before the trial Court and when this matter is taken up today for hearing, owner of the vehicle namely Aashiq Hussain is present and submits that the subject vehicle may be restored/released to him being owner of the vehicle on superdari till the decision of the case. However, learned Advocate for the applicant has stated that the amount fixed by the Court for releasing of the subject bus is/was very high, illegal and also caused grave injustice, therefore, the subject bus may be ordered to return to its real owner, who is present in Court only on execution of P.R. bond.

          Learned Additional Prosecutor General, Sindh opposed the contentions as raised by the learned Advocate of the owner of the subject bus and submit that the surety amount as fixed in the impugned order is perfect in law and just to secure the property for its production before the trial Court.

          In order to reach at the correct conclusion, I have gone through the Section 516-A, Cr.P.C. with the relevant provisos, which deals with the disposal of property pending trial, which reads as under:-

“When any property regarding which any offence appears to have been committed or which appears to have been used for 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.

Provided that, if the property consists of explosive substance, the Court shall not order it to be sold or handed over any person other than a Government Department or office dealing with, or to an authorized dealer in, such substances.”

A bare reading of the above provisions of law would show that the property can be detained only if it is subject-matter of an offence or if it has been used for the commission of any offence. Admittedly the subject bus was detained as a result of accident which took place between the bus and the car. It is pointed out that the driver of the subject bus would be prosecuted for causing hurt or death, of a person or persons by rash and negligent driving. In such a situation, I am of the view that vehicle cannot be said to have been used by the accused for the commission of the said offence. This view is supported by a case of Phulla Singh v. Emperor [AIR 1931 Lahore 565]. A Division Bench of this Court in case of Syed Razi Shah v. the State [1971 P.Cr.L.J. 19] interpreted the word “property” used in the commission of offence, appearing in section 517, Cr.P.C. and after relying upon the Concise Oxford Dictionary’s meaning observed that the said word would clearly mean such property as has been implied in the commission of an offence and that could only imply an instrument with which the offence was committed.

          In the case of accident, the owner of the vehicle did nothing to advance the commission of any offence, but it was his driver, who was liable for the said offence, therefore, by detaining the vehicle, its owner is being penalized and depriving of exercising his legal right to use his own property. If the property is left in the custody of police it will not serve any purpose. It will also reduce its utility which again tantamount to penalizing the owner unnecessarily. In the case of accident, the said fact can be proved by getting the vehicle inspected through authorized person appointed by the Government as provided under Section 95, Motor Vehicle Ordinance, 1965.

          After going through the Section 95 of Motor Vehicle Ordinance, 1965, it reveals after inspection of the vehicle, the same is to be returned to its owner without unnecessary delay and in no case, later than forty eight (48) hours of its removal. If the vehicle is detained then again the owner would be put to great hardships as he could not get his vehicle repaired and to use the same subsequently. Therefore, the law has taken care of this situation and has specifically provided that the vehicle should not be detained later than forty eight (48) hours. The evidence of Inspector, who inspected the vehicle involved in the accident under Section 95 of the Motor Vehicle Ordinance, 1965, will be sufficient to prove the accident and damage caused to vehicle. The vehicle can be identified through its registration number or producing the Registration Book of the vehicle without producing the vehicle in Court. Therefore, in my view the detention of the subject vehicle at police station would not advance the case of prosecution and also would not serve the purpose.

          It is also noted that in this matter, driver of the subject vehicle has been granted bail by the trial Court in the sum of Rs.200,000/- [rupees two lacs only], whereas, the impugned order passed by the trial Court for releasing the subject vehicle equivalent to the amount of bus is/was harsh, unjustified and against the spirit of Chapter XLIII of the Criminal Procedure Code, 1898, which needs to be modified accordingly. Even otherwise, the object of calling upon the surety was not to penalize him/them, but to ensure only presence of the property/accused. It may be mentioned here that original owner of the subject vehicle is present, who submits that subject vehicle may be released in his favour subject to furnishing only his P.R. bond in the sum of Rs.200,000/- [rupees two lacs only].

          In view of the above discussion and while relying upon the case of Ali Muhammad Kalhoro v. the State [SBLR 2004 Sindh 88], the prayer of the owner of the subject vehicle appears to be reasonable. Consequently, the impugned order is modified to the extent that the subject vehicle be returned to its original owner on executing his P.R. bond in the sum of Rs.200,000/- [rupees two lacs only] before the trial Court. However, it is made clear that the subject property shall be produced by the owner before the trial Court as and when required.

          Before parting with the order, it has been observed in identical cases that the trial Courts are not going to observe the correct legal position while deciding the applications under Section 516-A, Cr.P.C. in its letters and spirits; henceforth, trial Courts are directed to follow the legal position while deciding the applications under Section 516-A, Cr.P.C. in its letters and spirits.

This criminal revision application stands disposed of in the above terms along with listed application. Office is directed to send copy of this order to the trial Court for information and compliance.

                                                                                      JUDGE

Faizan A. Rathore/PA*