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Criminal Revision No.463 of 1986, decided on 3rd December,1986.

‑‑‑Ss. 439 & 517‑‑Saperdari of car‑‑Accused apprehended in case under Emigration Ordinance for issuing forged visas‑‑Suzuki car of accused seized during investigation‑‑Car not used in commission of any offence nor offence committed with regard to disputed car‑‑Seizure of car, held, was illegal and rule to hand over such property on Superdari to person, from whose possession it was obtained would be fully attracted‑‑Petitioner, wife of accused ordered to be delivered car on Sapurdari in circumstances.

Central Co‑operative Bank Ltd., Sargodha v. Ahmad Bakhsh PLD 1970 S C 343 ref.

'Syed Iftikhar Ahmad Malik for Petitioner.

Ilyas Saomed Alvifor Respondent No.1.

Khalid Ramday A . A . ‑G . for the State.

Date of hearing: 3rd December, 1986.

This revision petition is directed against the judgment dated 9‑9‑1986, delivered by Special Judge (Central) Lahore, whereby Superdari of a motor car which was seized by the F.I.A. in connection with the investigation of F.I.R. No.173 dated 6‑8‑1986 registered under the provisions of sections 17, 18 and 22 of the Emigration Ordinance against Haji Muhammad Ijaz and others, was refused in favour of the petitioner.

Before coming to the merits of this revision it will be necessary to touch in brief the circumstances narrated in the F.I.R.

2. This F.I.R. was lodged in pursuance of an enquiry conducted by the F.I.A. The enquiry revealed that Haji Ijaz and his wife Aneela Ijaz had induced 5 persons named in the F.I.R. to part with huge amount on the pretext of sending them abroad for employment. It was alleged that Haji Ijaz and Aneela Ijaz had received Rs.65,000. It was further alleged, that the enquiry had established that the visas which were stamped on these five passports were found to be forged and similarly, other stamps were also fake.

3. In course of the investigation of this case Haji Ijaz and Aneela Ijaz were arrested. Ijaz was allowed bail in this case but is behind the bars in connection with another case. Aneela Ijaz was also arrested but was subsequently allowed bail. It may be mentioned here that during the course of investigation of this case, the F.I.A. seized a motor car Suzuki bearing No. S.W.A.‑1011 from the possession of Haji Ijaz. Mst.Aneela Ijaz his wife made an application for obtaining this car of Superdari. In course of the hearing of the said application the other contenders also appeared and became party to the proceedings. In brief, as far as the history of the ownership of the car is concerned it is as follows:‑--

That the car stands registered in the name of Snobar Khan and allegedly Snobar Khan sold this car in favour of Hakeem Khan on hire purchase basis. Hakeem Khan further sold it on hire purchase basis in favour of Rahim Gul. The car changed the hands from Rahim Gul to Haji Ijaz and allegedly it was pledged with Hap Ijaz.

Learned counsel for the petitioner has drawn my attention to two documents allegedly executed by Rahim Gul. One of them is a receipt executed by him acknowledging the payment of Rs.80. Another document is an affidavit allegedly sworn by Rahim Gul and this affidavit refers to the passing of the car to Haji Ijaz. According to this affidavit, Rahim Gul had stated that he owes Rs.80,000 to Haji Ijaz but of which he has paid Rs.35,000 to Haji Ijaz and an amount of Rs.45,000 was still due from him to Haji Ijaz, in lieu of which the car was being given to Haji Ijaz.

4. Considering the case from all angles, it is really shocking to note the circumstances in which the car was seized by the F.I.A. The seizure of the property and its disposal in course of a criminal case is governed by sections 516‑A and 517, Cr.P.C.

5. The aforestated provisions would clearly show, that only that property regarding which any offence appears to have been committed or which appears to have been used for the commission of any offence can be taken into possession. Unfortunately, the Investigating Officer has failed to satisfy me that this car was taken into possession or seized in accordance with law. The seizure of the car is obviously illegal because it was not used in the commission of any offence nor the offence was committed with regard to the disputed car. The case was registered under the provisions of sections 17, 18 and 22 of the Emigration Ordinance which has nothing to do with this car. In this view of the matter I am bound by the judgment of the Supreme Court of Pakistan reported as Central Co‑operative Bank Ltd. , Sargodha v. Ahmad Bakhsh P L D 1970 S C 343, the relevant observation is as under:‑‑

"The ordinary principle is that when no offence has been proved or appears to have been committed with regard to the property required to be disposed of under subsection (1) of section 517 of the Code or if the property has not been used in connection with any offence, the same should be restored to the person from whom it was taken, unless there are special circumstances which would justify the adoption of a different course.

In a proceeding under section 517(1) of the Code of Criminal Procedure it is hardly desirable to decide the question of title to the property concerned, nor is the criminal Court competent to decide it either. The question of title, if any, should be left to be decided by the ordinary civil Court of competent jurisdiction. "

Bound by this judgment I would observe, that the aforementioned rule to hand over the property on Superdari to the person, from whose possession it was obtained, is fully attracted to the facts of this case. There are no special circumstances to depart from the said rule, It was suggested by the counsel for Rahim Gul and Snobar Khan that this property be kept in a Garage or a Workshop. I am afraid that I cannot adopt such course, because I apprehend the misuse of car in the Garage or workshop. On the other hand, Mst. Aneela Ijaz who is present in Court states, that she has got a Garage and has another car for her own use. She further undertakes to keep the car properly and to avoid all such courses, which are likely to damage the car. In these circumstances, I would direct the F.I.A. to hand over the car forthwith to Mst. Aneela Ijaz subject to her furnishing security in the sum of Rs.1,00,000 (Rupees one lac only) to the satisfaction of Special Judge (Central) Lahore. Mst. Aneela Ijaz shall produce this car whenever required in any Court of law. Failure to do so may entail the consequences of vacation of this order.

S.A./M‑17/L Superdari granted.

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