NASIR KHAN vs STATE and 4 others
This criminal petition was filed under Section 561-A of the Code of Criminal Procedure 1898, challenging the orders of the Civil Judge/Judicial Magistrate and the Additional Sessions Judge, Nowshera, which rejected the petitioner's application for the release of a motor vehicle on superdari. The vehicle in question was allegedly used in the commission of a robbery. The core legal question was whether the lower courts erred in refusing to grant superdari of the vehicle to the petitioner, who claimed to be a bona fide purchaser. The Peshawar High Court dismissed the petition, holding that the lower courts exercised their discretion judicially and correctly. The Court affirmed that while Section 516-A of the Code of Criminal Procedure 1898 empowers courts to release property on superdari, this power is discretionary and not mandatory. The key principle laid down is that the court is not bound to release case property to the person from whom it was recovered; rather, the property should be delivered to the person legally entitled to its possession, and the court must consider the interests of justice and the nature of the offence.
- Is the power of the Court to release case property on superdari under Section 516-A of the Code of Criminal Procedure 1898 mandatory or discretionary?
- Must the Court necessarily release case property to the person from whose possession it was recovered?
- Does the failure to comply with Section 32 of the Motor Vehicles Ordinance 1965 regarding the transfer of ownership affect a claim for superdari?
- Section 561-A, Code of Criminal Procedure 1898
- Section 32, Motor Vehicles Ordinance 1965
- Section 516-A, Code of Criminal Procedure 1898
- Section 517, Code of Criminal Procedure 1898
1. Petitioner Nasir Khan, has filed instant quashment petition under Section 561-A Cr.P.C., with the prayer that orders dated 15.6.2005 and 28.6.2005, respectively passed by Civil Judge/Judicial Magistrate and Additional Sessions Judge, Nowshera, whereby the application of the petitioner for release of Motor Car No, LHD-6222 on superdari was rejected, be declared as illegal, void and without authority.
2. 2.Haji Shahi Rehman, Respondent No, 3 herein, on 25.5.2005 made a report at the Police Station Risalpur to the effect that he is owner of Motor Car No, B-9412 Peshawar and is plying the same as taxi. On 24.5.2005, he was proceeding to Motor Way, Rashakai, when in the while, a Motor Car No, LHD-6222, boarder with 5 persons duly armed, blocked the way, deboarded him from the car and took away his car. The complainant also stated that the occupants of the car tied his eyes and after covering some distance, they left him at a deserted place.
3. 3.The learned Magistrate, seized of the matter, rejected the application of the petitioner for superdari holding that the car in question has actively been used in the commission of heinous offence, therefore, the same is case property and needs to be produced before Court. Seemingly aggrieved, a revision petition was filed, which too met the same fate, vide order dated 28.6.2005, passed by Additional Sessions Judge, Nowshera.
4. 4.Appearing on behalf of the petitioner, Mr. Hidayatullah Khan, Advocate contended with vehemence that the petitioner is bona fide purchaser of the car in question on the strength of sale- deed dated 19.1.2005 and transfer letter; that there is no rival claimant as owner or possesser on record against the petitioner and that the said car is no more required for further investigation. To substantiate the pleas, reliance was placed on Muhammad Amin vs. Fazle Karim Khattak and others (1992 P.Cr.L.J. 2137 Peshawar and Burkamal vs. The State (NLR 1989 (Criminal) 445 Karachi).
5. 5.Mr. Shah Nawaz Khan, Advocate for the State, on the other hand, fully supported the impugned orders maintaining that one Ch. Muhammad Yousaf son of Ch. Ferozuddin, resident of Friends Colony, Multan Road, Lahore is actual owner of the car in question and the petitioner has no concern with it. Additionally he maintained that in case the petitioner was bona fide purchaser of the car, he should have applied to the quarter concerned within thirty days of the transfer of ownership in terms of Section 32 of Motor Vehicles Ordinance, 1965. The failure on the part of the petitioner causes dent in his case.
6. 6.No doubt, Section 516-A empowers the Court to deliver on superdari during pendency of trial, any property regarding which any offence appears to have been committed but it does not require the Court to do so essentially and in each case. The power is discretionary and is to be used judicially taking care of the rights and interest of the claimants. Also the property is not necessarily to be given on superdari to a person from whose possession it is recovered. The law favours rather requires the delivery of property to the person entitled to its possession. If the trial Court considers it proper not to hand over the car to the petitioner for valid reasons, it cannot be said to have acted without jurisdiction or illegally.
7. Obviously, the order in respect of the custody of the vehicle shall be passed by the Court under Section 517 Cr.P.C. in favour of a person/party found entitled to its possession.
7. In the result and for the foregoing reasons, finding no substance in this petition. I dismiss the same and maintain the impugned orders.