Zaheer Abbas vs Muzaffar Khan etc.
This criminal revision petition was filed under Section 435/439 of the Code of Criminal Procedure 1898 against the order of the Additional Sessions Judge, Attock, whereby the petitioner's application for the interim custody (Spurdari) of a tractor in case FIR No. 293/2014 was dismissed. The core legal question was whether a vehicle not used directly in the commission of the offence or for escaping the crime scene, and claimed by a sole registered owner who is not an accused, can be handed over on Spurdari during trial. The Lahore High Court held that the tractor was neither an instrument used for the commission of the offence nor for escaping the crime scene, and since there was no rival claimant, interim custody should be granted to the registered owner to prevent devastation or loss of utility, subject to furnishing surety bonds. The key principle laid down is that vehicles merely present at or transported to a crime scene—rather than being instruments of the crime or used for active flight—do not constitute 'case property' in the strict sense, and their temporary custody should be entrusted to the rightful owner with appropriate safeguards rather than withheld on mere presumptions of tampering.
- Whether a vehicle used for going to or ploughing land near a crime scene can be treated as case property or an instrument used for the commission of an offence?
- Can interim custody (Spurdari) of a vehicle be refused to its sole registered owner merely on the presumption that he is related to an accused in the case?
- What is the primary purpose of granting interim custody of property under Section 516-A and Section 517 of the Code of Criminal Procedure 1898 pending trial?
- Section 435, Code of Criminal Procedure 1898
- Section 439, Code of Criminal Procedure 1898
- Section 302, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 517, Code of Criminal Procedure 1898
- Section 516-A, Code of Criminal Procedure 1898
Zaheer Abbas petitioner has filed this criminal revision under Section 435/439 Cr.P.C. Against order dated 9.5.2015 passed by the learned Additional Sessions Judge, Attock whereby his application for Spurdari of vehicle/Tractor No.6611-MI in case FIR No.293/2014, under Section 302/324/109/148/149 PPC registered at Police Station Saddar Attock was declined.
2. Learned counsel for the petitioner has contended that the petitioner is sole owner of the tractor in question and there is no other claimant; that the subject tractor is not the case property of case FIR No.293/2014 as no registration number, model or the name of company has been mentioned therein; that in case the custody of subject tractor is not handed over to the petitioner, it value and utility will diminish and the petitioner would suffer irreparable loss, therefore, he is entitled to the Spurdari of subject tractor. Relies on cases titled "Muhammad Hanif vs. The State 2008 M LD 1416 [Lahore])" AND "Haji Rab Nawaz vs. The State 1988 P.Cr.L.J. 1353 [Karachi])".
3. On the other hand, learned counsel for respondent No.1 has contended that the petitioner was not owner of the subject tractor at the time of occurrence and afterwards he got the same transferred in his name with mala fide intention; that he is grand-son of one of the accused namely Afsar Ali, nominated accused of the FIR, on whose pointation the same was recovered; that there is strong apprehension that the petitioner will sale out the subject tractor in order to create dent in the prosecution case, therefore, the same cannot be given to the petitioner on Spurdari.
Relies on case titled "Manzoor Hussain vs. The State 2008 M LD 1491 [Karachi])".
4. Arguments heard. Record perused.
5. Bare perusal of FIR shows that no number, model, company name, description or owner of the subject tractor has been mentioned therein. This case was registered on 10.10.2014 and the subject tractor was taken into possession by the police on the pointation of one of the accused namely Afsar Ali. The petitioner got the subject tractor transferred in his name on 19.11.2014 from its previous owner namely Hameed Ullah. Neither the petitioner nor Hameed Ullah, previous owner of the subject tractor, is accused in the said FIR.
6. The subject tractor was used for ploughing the disputed land as alleged in the FIR. Neither the same was used by the accused for causing injuries to the deceased or the injured PWs nor for fleeing away from the spot. It has been held in case titled "Humayun Azam vs. Ch. Sadiq Inspector/SHO Police Station Kunjah District Gujrat and 3 others (1999 M LD 1676)" as under:- "Vehicle used for the running from the place of occurrence by the accused is not a "case property"- -- Vehicle used by an offender for going to or running from a place where an offence is committed by him, cannot be said to have been used for the commission of that offence and the same cannot be taken into possession by the Police as case property."
It has also been held in case titled "Syed Razi Shah vs. The State (1971 P.Cr.L.J. 19 [Karachi])" as under:- "Words "property used for commission of an offence" in S. 517, imply only instruments like guns, swords etc. With which offence was committed. Vehicle used for going to and escaping from place of incident, not covered within "property used for commission of offence".
The subject tractor was neither used for the commission of the offence nor for escaping from the crime scene and as such the same cannot at all be said to be an instrument for the commission of alleged offence.
7. The petitioner is the sole claimant/owner of the subject tractor and its seller admittedly has not claimed its custody and even it was not questioned by anybody else. The purpose of Section 516-A read with Section 517 Cr.P.C. Is to hand over proper custody of such property regarding which any offence appears to have been committed, pending the conclusion of trial or on its conclusion, in order to save the same from devastation where it was likely to be misused, damaged or its utility was to be diminished.
8. Learned trial Court has dismissed the claim of petitioner on the presumption that there is apprehension of tempering of prosecution evidence and misappropriation of the subject tractor as the petitioner is grand-son of nominated accused Afsar, therefore, he will not produce the same in the Court. The subject tractor cannot be retained on presumptions and the petitioner could be bound to submit surety bonds in order to safeguard the interest of the prosecution as well. The possession of vehicle is temporarily given to its owner till finalization of the proceedings and the only purpose of putting certain conditions upon Spurdar/owner of the vehicle is to ensure its production if, when and where it is required by the Court and as such the same cannot be said to have been delivered for good and the same is deemed to be under the constructive possession of the Court.
9. The petitioner as well as previous owner of the subject tractor is neither named in the FIR nor required in the said case. There is no rival claimant of the subject tractor, which cannot be said to have been used in the commission of alleged offence. Therefore, I am persuaded to hold that the learned Court below has not properly exercised the jurisdiction vested in it and has failed to appreciate law on the subject properly.
In view of above, the revision petition in hand is allowed and the vehicle/tractor No.6611/M.I. Is directed to be given to the petitioner on Spurdari subject to his furnishing surety bonds in the sum of Rs.500,000/- with one surety in the like amount to the satisfaction of the learned trial Court. The petitioner is bound down to produce the subject tractor in the Court if and when called upon to do so during the proceedings of trial.