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Criminal Revision Application No. 71 of 1986, decided on 21st October, 1986.

‑‑‑Ss. 435, 439 & 516‑A‑‑Proper custody‑‑Case property a motor taxi‑ Heroin recovered from motor taxi‑‑Petitioner making application for interim custody claiming to be owner on basis of open letter‑‑Petitioner not registered owner in Excise and Taxation Record‑‑Application rejected by Trial Court‑‑Petitioner on basis of open letter getting himself registered as owner in Excise and Taxation Record‑‑Petitioner moving second application for custody of taxi‑‑Application rejected by Trial Court, holding transfer of taxi in name of petitioner as illegal while it was a case property‑‑Trial Court, held, erred in holding registration of petitioner as new owner of taxi in records of Excise and Taxation Office as illegal‑‑Application under S. 516‑A could not have been rejected in circumstances‑‑Case remanded to Trial Court to treat application under S. 516‑A pending and decide same in the light of observation by Court.

Miss Zarina Khan v. State 1970 P C r. L J 1215 and Fazal Dad v. State 1974 P Cr. L J 452 rel.

Muhammad Ali Shaikh for Petitioner.

Muhammad Hayat Qureshi for the State.

Date of hearing: 21st October, 1986.

This criminal revision application has been filed calling into question two orders dated 21‑7‑1986 and 9‑8‑1986 of the trial Court rejecting two applications filed one after the other under section 516‑A, Cr.P.C. I have heard Mr. Muhammad Ali Shaikh, learned counsel for the applicant and Mr. Muhammad Hayat Qrureshi, learned counsel, who has appeared on behalf of the State.

2. The relevant fact necessary for disposal of the present revision application are that on 22‑6‑1986 an F. I. R. was lodged at Police Station Chakiwara, Karachi, against one Gulzar under section 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979. The allegation was that a taxi bearing No. 871‑949 being driven by accused Gulzar was intercepted by the police and seven killograms of Heroin was secured from the taxi in question. The accused is apparently in custody. An application was moved under section 516‑A, Cr.P.C. by the present applicant Amir Muhammad Khan for interim custody of the Taxi claiming to be the owner of the taxi. Admittedly at that time when the application was moved, the registered owner in the records of the Excise and Taxation Department was one Muhammad Azam but the applicant claimed that he had purchased the taxi in question from Muhammad Azam on open letter. The application was rejected by order dated 21‑7‑1;9 6 of the learned trial Court on the following grounds:‑--

". . . .As a matter of fact above taxi stands in the name of one Muhammad Azam Khan and not in the name of the applicant Amir Muhammad Khan. The contention of the Amir Muhammad Khan is that he has purchased taxi from one Muhammad Azam Khan, by way of open letter, has got hardly any force in the eye of the law. The vehicle in question was used in commission of the Crime under the Prohibition Hudood Ordinance, and as such, accused Gulzar was found taking 7 kilos of Heroin in taxi. Except photostat of identity cards, Registration and insurance documents, the rest of the documents are blank only these documents bear signature of some one.

In view of above, the present applicant has got no right title in respect of the case property as he has failed to prove his ownership of the same. In the result this application is rejected."

Apparently, therefore, the first application under section 516‑A, Cr.P.C. moved by the applicant was rejected on the ground that the applicant was not owner of the taxi.

3. It appears that thereafter the applicant, on the basis of the documents in his possession, moved the concerned Excise and Taxation Authority and got his name registered in the records of the Excise and Taxation Department as the owner of the taxi and then he moved his second application before the trial Court under section 516‑A, Cr.P.C., but this also met the same fate by order dated 9‑8‑1986 of the learned trial Court. A perusal of the second order dated 9‑8‑1986 shows that according to the trial Court such transfer of ownership in the records of the Registration Department obtained during the pendency of the criminal case is bad in the eye of law and the Registration Authorities should have refrained from making a registration of a vehicle, which was a case property and which had not been produced before them. According to the trial Court, registration of the taxi in the name of applicant Amir Muhammad Khan is totally illegal when the taxi in question is under the custody of the police lying at Police Station Chakiwara involved in a case being Crime No. 320 of 1986. The trial Court has further observed as follows:‑-

"...I fail to understand as to why present applicant is adopting illegal methods for release of taxi which is subject‑matter of case property. There is no proof that at the time of commission of this offence taxi in question was owned by the present applicant. Present applicant cannot purchase a property which is a subject‑matter of case property and lying at police station.

4. It is an admitted position that neither the present appellant Amir Muhammad Khan nor the previous recorded owner, namely, Muhammad Azam is an accused in the criminal case, in which property has been seized. It is also apparent that apart from applicant Amir Muhammad Khan, no one else including the previous record owner Muhammad Azam has filed any application for custody before the trial Court. It is also evident from the record that the applicant has got his name registered as the owner in the records of the Motor Registration Wing of the Excise and Taxation Department and at present applicant Amir Muhammad Khan is shown as the owner of the taxi in question in the records of Excise and Taxation Department. Mr. Muhammad Ali Shaikh, learned counsel for the applicant, had contended that there is no law which bars the Excise and Taxation Authorities to change the name of the recorded owner in the facts of the present case. Mr. Muhammad Hayat Qureshi, learned counsel for the State, also concedes that there is no law, under which it could be said that the Excise and Taxation Authorities were debarred from changing the record and bringing the name of, applicant Amir Muhammad Khan on their record as the 'owner of the taxi in question. I am also of the view that the learned trial Court has erred to observing that the registration of the applicant Amir Muhammad Khan as the new owner of the taxi in the records of the Excise and Taxation Department is illegal. On this ground, therefore, the application under section 516‑A, Cr.P.C. could not have been rejected by the learned trial Court.

Learned counsel for the applicant has then cited two reported judgments in support of his contention that in the instant case the taxi should have been given in the custody' of the present applicant. The first case is Miss Zarina Khan v. State 1970 P Cr. L J 1215 a decision of a learned Single Judge of the Lahore High Court. In para. 9 of this judgment it was observed as follows:‑---

"In my view, the order of learned Magistrate withholding the car from its true owner was entirely unjustified. Under section 516‑A of the Criminal Procedure Code the Court has to pass an order for 'proper custody' of the property regarding which an offence has been committed or which appears to, have been used for commission of any offence.. The car, in this case; was owned and claimed by the petitioner who was not alleged to have done anything to advance the commission of the offence. The car may or may not have been subjected to decay but the learned Magistrate entirely lost sight of the fact that by his unjustified refusal to hand over the car to the real owner, he was depriving her of her legal right to use her own property.

The other case relied upon by Mr. Muhammad Ali Shaikh is Fazal Dad v. State 1974 P Cr. L J 152. In this judgment it was observed as follows:‑---

"I am of the view that in the rainy season, if the truck remains out of use in the 'Malkhana' its value is likely to depreciate. As a matter of propriety, the custody of the truck should be given to the owner on a security to be furnished by a person of this province, whose property is also situated in this province. The Court should also satisfy itself about the ownership of the truck. The amount of security to be determined afresh because such security is always a little more than the actual value of the truck.

5. The impugned orders dated 21‑7‑1986 and 9‑8‑1986 are set aside and the second application made by the applicant will be deemed to be pending before the trial. Court who will decide the said application in accordance with the observations made in this judgment. To be precise, the learned trial Court will determine prima facie whether the taxi belongs to the applicant and in that connection he will keep under consideration the fact that the previous recorded owner Muhammad Azam or anybody else apart from the applicant has not approached the trial Court for custody of the taxi. It has already been held by me in this judgment that the registration of the applicant as the owner of the taxi in the records of the Excise and Taxation Department has not been shown to be illegal under any law in the facts and circumstances of the present case. The fact that now in the records of the Excise and Taxation Department the taxi‑stands in the name of the applicant as owner will also be taken into consideration by the trial Court. If the learned trial Court decides to hand over interim custody of the taxi to the applicant, he will determine the amount of security in the light of the principles laid down in the case of Fazal Dad v. State reported in 1974 P C r. L J 452 refereed to above.

6. Criminal Revision Application No. 71 of 1986 is disposed of accordingly with a further direction that the application of the applicant will be decided within three weeks from today.

S.A. Application accepted.

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