MUBARAKUR REHMAN Versus THE STATE

Here is an application under section 561-A read with section 516-A, Cr.P.C. for the custody of truck No. FRC-7956 on Superdari in a case under section 9/26/29 (d) of the Hazara Forest Act read with Notification No.13938-TD, dated 31-1-1987 taken into custody by Mr. Ali Khan D.F.O. till the disposal of the case since the earlier application of Noor-ur-Rehman petitioner, the driver of the truck for the Superdari thereof was disallowed by Magistrate Ist Class Abbottabad and subsequently his revision was also dismissed by the learned Sessions Judge, Abbottabad under observations that the impugned truck was very much a case property and that the case was still at the investigation stage and as such the release of the truck on Superdari would adversely affect the investigation. Mubarakur Rehman petitioner No. 1, the owner of the truck had later on joined as petitioner under the observations of this Court that if ever there shall be released the truck on Superdari to any person he shall be the owner and not the driver.

2. After a detailed scrutiny of the record and hearing the learned counsel for the petitioners and the learned Assistant Advocate-General for the State this Court has found that under section 39 (1)(b) of the Hazara Forest Act, 1936 the Forest Officer is authorised to seize the truck or other vehicle used in the commission of any offence under the Act, rules or orders thereunder while under subsection (3) ibid the carriage, wagon, cart or other vehicle used in the commission of such offence is liable to confiscation. Herein the truck in question was carrying timber of "Biar" kind against a permit, also alleged to be fake, of "Cher" kind. The permit was for carriage of l timber from Bisyani Forest Check post Kawai roadside depot to Havelian depot while the truck was found unloading the timber at the Saw Machine of one Gul Hamid in Supply Bazar, Abbottabad. Thus, prima'/ facie the commission of offences under section 9/26/29 (b) of the Hazara Forest Act has been occasioned. Under section 40 of the' Hazara Forest Act, 1936 the Forest Officer has been vested with al power to release cart, truck or other vehicle on the execution of a bond by the owner. It was contended that not to speak of a Magistrate the Act has rather authorised a Forest Officer to release the vehicle on furnishing a bond by the owner but herein the Magistrate and' the Court of revision had refused to release the vehicle to its driver from whose lawful possession it was taken into custody by the Forest Officer and their such act would tantamount to abuse of process of, Court on their part aptly to justify the exercise of inherent power by this Court under section 561-A, Cr.P.C. In the context the other side contended that the special law of Hazara Forest Act, 1936 contained) a provision in Section 40 vesting a power in the Forest Officer to release the vehicle on execution of a bond by the owner only while herein the driver of the truck has approached the Court of Magistrate as well the Court of revision for the release of the truck to him who was as such rightly refused the custody of the truck. It was further contended that there vested a power in the Court of Magistrate as well the Court of revision to release or not to release the vehicle on Superdari and that since they have properly exercised their judicial discretion in not releasing the vehicle to its driver on Superdari during the course of investigation there would not arise any question of abuse of process of Court on their part and application of section 561-A, Cr.P.C. would not be attracted accordingly.

3. In fine, in the facts and circumstances of the case this Court would decline to exercise its inherent power under section 561-A, Cr.P.C. in releasing the vehicle to Noor-ur-Rehman, its driver, also now joined by Mubarakur Rehman its owner and would rather advise the latter to better approach the trial Court for the release of the vehicle into his Superdari on furnishing bond as envisaged under section 561-A, Cr.P.C. read with section 40 of the Hazara Forest Act, 1936.

M. Y. H./ 603 / P Petition dismissed.