UMAR QIAZ KHAN vs STATE
This criminal revision petition was filed under Section 439-A read with Section 561-A of the Code of Criminal Procedure 1898 seeking the release on Superdari/bail of a motorcar involved in a case registered under Section 7 of the Anti-Terrorism Act 1997 and Sections 3/4 of the Explosive Substances Act 1908. The core legal question was whether the registered owner of a vehicle, which was allegedly hired by accused persons and parked exposed to decay, is entitled to its interim custody when investigation is complete and no explosives were recovered from the vehicle itself. The Peshawar High Court held that since the petitioner was the lawful owner, the vehicle was hired out, no recovery was made from the vehicle, and the vehicle was liable to decay, the petition should be accepted. The court laid down the principle that a vehicle not directly implicated by recoveries from its cavities and belonging to an innocent owner/hirer should be released on bail to prevent its destruction, subject to surety bonds.
- Is the registered owner of a vehicle entitled to its custody when it was allegedly hired by an accused and no explosive substances were recovered from the vehicle itself?
- Can a vehicle involved in a criminal case be released on bail to its owner when investigation is complete and the vehicle is liable to decay under the open sky?
- Section 439-A, Code of Criminal Procedure 1898
- Section 561-A, Code of Criminal Procedure 1898
- Section 7, Anti-Terrorism Act 1997
- Section 3, Explosive Substances Act 1908
- Section 4, Explosive Substances Act 1908
Through this revision petition filed under Section 439-A Cr.P.C. read with Section 561-A thereof, the petitioner, Umer Qiaz Khan, seeks the release of Motorcar bearing No, FDL/9779 on bail involved in case FIR No, 23 dated 19/1/2008 of Police Station .Cantt: D.I.Khan registered under Section 7 Anti- Terrorism Act 1997 read with Sections 3/4 of the Explosive Substances Act 1908.
2. The FIR reveals that the police party during Nakabandi near the under construction Girls College in front of Central Jail D.I.Khan had stopped an unnumbered Toyota Corolla white colour Motorcar and two persons named Asmat Ali and Etizaz Shah were found sitting therein in suspicious condition who could not produce any valid document for the vehicle. On checking, from the pocket of Etizaz Shah, rupees ten thousands, each of rupees one thousand denomination, three Identity Cards of three different Dinni Institutions of Karachi all dated 30/4/2005, Mobile numbers, some, documents, a knife, a glass, a watch etc; and some secret informations detailed in the FIR, were recovered from his physical possession, while from the personal search of accused Asmat Ali, his Identity Card, driving license number and one thousand rupees in cash were recovered and both of them were booked vide FIR ibid.
3. Learned counsel for the petitioner argued that the petitioner being the lawful owner of the Motorcar in question was entitled to its custody and thus the impugned order of the Court below is unwarranted; that the said car was hired by the accused Eitzaz Shah which cannot be connected in any way with the alleged commission of offence, as no explosive have been recovered from the vehicle. Investigation in the case is complete and the motorcar is no longer required for the same purpose.
4. Learned counsel for the State resisted this petition on the grounds that the motorcar was without number recovered from the possession of one Asmat Ali who had failed to produce any registration book; that the said car was used in the commission of offence; that a huge quantity of explosive substances materials alongwith other incriminating materials had been recovered therefrom; that the said car was not registered as Taxi rather shown as a private car in the documents produced by the petitioner.
5. I have considered the arguments advanced at the bar and gone through the record of the case.
6. The record, however, reveals that the petitioner is the lawful owner of the motorcar which was used to play as Taxi. Accused Asmat Ali was its driver and on the day of occurrence, i,e, 19/1/2008, an unknown person, i,e, accused Etizaz Shah, had hired the same from Bannu to D.I.Khan. The alleged recovery of explosive substances materials was affected from the personal possession of the accused Eitzaz Shah and not from the secret cavities of the Motorcar in question. The petitioner has the valid documents of the said motorcar, i,e, registration book etc; and thus he deserves to be given its custody. There is no rival claimant of the car in question. Furthermore, the car is liable to decay being parked under the open sky, the investigation in the case is complete and the vehicle is no longer required for investigation.
7. Therefore, in view of the dictum laid down in the cases of Muhammad Shahid Vs. The State (2007 P.Cr.L.J. 1168) Muhammad Idrees Vs. The State (2007 P.Cr.LJ. 553), Khurram Shahzad Vs. The State (2007 P.Cr:L.J. 715). Miss Zarina Khan Vs. The State (1970 P.Cr.L.J. 1215), I accept this petition, set aside the impugned order and direct that the Motorcar in question be released to the petitioner on bail, subject to his furnishing bail bonds, in the sum of rupees two lacs with two sureties in the like amount each to the satisfaction of Ilaqa/Judicial Magistrate, who shall see that the sureties are local, reliable and men of means.
Above are the reasons for my short order of even date.