' Petitioner Zaheer Khan through the, instant petition under section 561-A, Cr.P.C. Has sought for setting aside of the order dated 19-6-2003 passed by Mr. Munir Hussain Gill, learned Mudicial Magistrate Ist Class, Kharian, whereby he has dismissed an application for interim custody (Superdari) of Car No.8821/Kar filed by him and that of order dated 19-7-2003 passed by Mian Muhammad Anwar, learned Additional Sessions Mudge, Kharian disposing of his revision petition against the same.
2. Briefly the facts relevant for the disposal of the instant petition are that the said car is case property in the case F.I.R. No.280 registered under Article 3/4 Prohibition (Enforcement of Hadd)
Order No.IV of 1979 with Police Station, Sadar Kharian, District Gujrat on 5-6-2003.
3. The petitioner applied for interim custody (Superdari) of the same to the Court of Mr. Munir Hussain Gill, learned Mudicial Magistrate 1st Class, Kharian, who vide his order dated 19-6-2003 declined the same to him.
4. He preferred the revision petition against the same before the Court of Mr. Muhammad Anwar, learned Additional Sessions Mudge there but he also declined his request observing that the car in question has been used for transportation of narcotics and so it cannot be given to him under section 516-A, Cr.P.C. He with such observation disposed of his revision petition.
5. The petitioner feeling himself aggrieved of both the aforesaid orders has brought the instant petition invoking inherent jurisdiction of this Court to secure the ends of justice.
6. His learned counsel has contended that the car in question belonged to him and there was nothing in the way to the grant of interim custody (Superdari) of the same to him but the learned Magistrate has declined the same to him for no good reason and similarly the learned Additional Sessions Mudge, Kharian; that the car in question is being used by the S.H.O. Concerned and if it remains with him any further, there is every likelihood of it's deterioration or depreciation in value; and that in case it is handed over to him on interim custody against reasonable security, he will produce it in the trial Court as and when so required.
7. Learned A.A.-G. Has shown no objection on the grant of his request for the purpose.
8. I have carefully considered the submissions made from both the sides with the help of copies of documents annexed to the petition.
9. The petitioner claims himself to be the owner of the car in question. There is no rival claimant of the same till today.
10. The learned Magistrate has declined him the interim custody of -the same mainly on the ground that he at one stage in violation of the order of the 'Superdari' recorded by learned Senior Civil Mudge/Magistrate Section-30, Attock transferred the same to one Mushtaq Ahmad son of Abdul Razzaq and thereafter he again got it transferred back to his name. He took it as a suspicious circumstance qua his bon fide in the matter. He with such observation has declined his request.
11. Learned counsel for the petitioner has submitted that the order of interim custody (Superdari) passed by learned Senior Civil Mudge/Magistrate Section-30, Attock had already ceased to have effect as on thorough inquiry it was found that he is the genuine owner of the car in question and so that matter came to an end and hence the learned Magistrate has erred in comprehending it's actual position.
12. Learned A.A.-G. Has not been able to controvert this contention. He rather has shown absolutely no objection to the grant of interim custody (Superdari) of the car in question to him.
13. The car in question is with the concerned police. It is the allegation of the petitioner that S.H.O. Of the said police station is using the same and so there is every likelihood of it's depreciation and deterioration, if he continues to use the same. The registration book of the car in question is in the name of the petitioner. So, the reason advanced by the learned Magistrate in turning down his request for interim custody (Superdari) of the car in question seems to be not sound.
14. The learned Additional Sessions Mudge has declined his request for the purpose mainly for the reason that under section 516-A, Cr.P.C. It cannot be given to him.
15. The same though allegedly was used for transportation of liquor but the same itself is not such a property as has been described in the 1st and 2nd provisos to that section, which can't be disposed of by way of interim custody. The disposal of property prohibited under those provisos are explosive substance, dangerous drug, liquor and any other narcotics substance. The car in question is not a property of that type. The provision of section 516-A, Cr.P.C. Therefore, cannot be stretched to the same to 'decline it's interim custody to the petitioner. The reason, thus advanced by the learned Additional Sessions Mudge in refusing the interim custody of the same to him is also not legally recognized and tenable.
16. The car in question is subject to decay and deterioration, if it is not properly kept or managed.
The use of the same by the police officer concerned, if it may be so, can certainly cause depreciation of it in value and utility.
17. The disposal of the above said narcotics case is likely to take soak time. So, the car in question, if remains with the police, there is every likelihood of it's deterioration in value and utility.
18. I, therefore, do not find anything in way of the grant of interim custody (Superdari) of the same to the petitioner. Hence, the above said orders recorded by both the Courts below are not liable to be sustained. Sum of Rs.6,00,000 (Rupees six lacs) with two sureties each in the like amount to it's B entire satisfaction.