1. ' Through the present application the applicant has challenged the order, dated 8-1-2004 passed by the learned Additional Sessions Judge, Kandhkot by which the leaned Judge had ordered for the return of a bus to the applicant on furnishing solvent surety in the sum of Rs,40,00,000 (Rupees forty Lacs).
2. ' Brief facts giving rise to the present application are that on 11-11-2004 at 5-00 p.m. An accident took place between a coach and Diesel Bus bearing No,BE2975 near bye-pass of National Highway in between Kandhkot and Shikarpur in which some persons lost their lives and some persons received injuries.
3. ' Learned Advocate for the applicant has stated that the amount fixed by the Court for release of the bus is very high and illegal, therefore, the bus mazy be ordered to be returned to the applicant/owner on execution of P.R. Bond.
4. ' Learned State Counsel has conceded that the amount mentioned in the impugned order for the release of vehicle is very high which may be reduced to a reasonable amount.
5. ' Section 516-A, Cr.P.C. Deals with the disposal of property pending trial which reads as under:-- "When any property regarding which any offence appears to have been committed, or which appears to have been used for commission of any offence, is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy or natural decay, may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of: ' Provided that, if the property consists of explosive substances, the Court shall not order it to be sold or handed over any person other than a Government Department or office dealing with, or to an authorized dealer in, such substances."
6. ' A bare reading of the above provision of law would show that the property can be detained only if it is subject-matter of an offence or if it has been used for the commission of any offence.
7. Admittedly the bus was detained as a result of accident which took place between the bus and the coach. It is pointed out that the driver of the vehicle would be prosecuted for causing hurt or death of a person or persons by rash and negligent driving. In such a situation I am of the view that vehicle cannot be said to have been used by the accused for the commission of said offence. The view is supported by a case of Phulla Singh v. - Emperor AIR 1931 Lah.
565. It has been held as under:-- "I think it would be straining the language to hold that the motor car was used for the commission of the offence within the meaning of section 516-A, Criminal P.C. The ruling in Emperor v. Illahi Bakhsh (1904) 4 PLR 1904, is directly applicable to the case."
8. ' A Division Bench of this Court in the case of Syed Razi Shah v. The State 1971 PCr.LJ 19 interpreted the word "property" used in the commission of offence, appearing in section 517, Cr.P.C. And after relying upon the Concise Oxford Dictionary's meaning observed that the said word would clearly mean such property as has been implied in the commission of an offence and that could only imply an instrument with which the offence was committed. They further observed that a' Jeep which was merely used for going and escaping from the place of incident could not be covered within the meaning of word "property". The said view is also supported by a case of Rai Bashir Ahmed v. The State 1971 PCr.LJ 255. In the case of Sheraz Illahi v. The State 1984 PCr.LJ 1935, it has been observed that wagon involved in an accident causing death of persons could not be deemed to have been implied as weapon of such offence. Similar view was also taken in the case of Barka Mal v. The State 1989 PCr.LJ 1110.
9. ' In the case of accident, the owner of the vehicle did nothing to advance the commission of any offence, but it was his driver who was liable for the said offence, therefore, by detaining the vehicle its owner is being penalized and depriving of exercising his legal right to use his own property. If the property is left in the custody of police it will not serve any purpose. It will reduce its utility which again tantamount to penalizing the owner unnecessarily. In the case of accident the said fact can be proved by getting the vehicle inspected through authorized person appointed by the Government as provided under section 95, Motor Vehicle Ordinance, 1965. The said section reads as under:-- "Inspection of vehicle involved in accident.-- When any accident occurs in which a motor vehicle is involved, any, person authorised in this behalf by Government may, on production if so required of his authority, inspect the vehicle and for that purpose may enter at any reasonable time any premises where the vehicle may be, and may remove the vehicle for examination: ' Provided that the place to which the vehicle is removed shall be intimated to the owner of the vehicle and the vehicle shall be returned without unnecessary delay, and in no case later than forty-eight hours of its removal."
10. ' In the above provision after inspection of the vehicle the same is to be returned to its owner without unnecessary delay and in no case later than 48 hours of its removal. If the vehicle is detained then again the owner would be put to great hardships as he could not get his vehicle repaired and to use the same subsequently. Therefore, the law has taken care of this situation and has specifically provided that the vehicle should not be detained later than 48 hours. The evidence of Inspector, who inspected the vehicle involved in the accident, under section 95 of the Motor Vehicle Ordinance, 1965 will be sufficient to prove the accident and damage caused to the vehicle.
11. The vehicle can be identified through its registration number or producing the Registration Book of the vehicle without producing the vehicle in the Court. Therefore, in my view the production of such vehicle at subsequent stage in the trial would not serve any purpose. Further it will not be in the same position as it stood just after the accident. After the accident, the owner is entitled to get his vehicle repaired. Thus, no fruitful purpose would be served for detaining the vehicle in the custody of police.
12. ' In view of above position, the Court is required to release the vehicle on merely executing P.R. Bond of a reasonable amount as it is not the requirement of law that owner in such case is required to furnish the surety. Reliance is placed in the case of Ali Muhammad Kalhoro v. The State SBLR 2004 Sindh 88.
13. ' In view of above position, the impugned order is modified to the extent that the vehicle be returned to the applicant/owner on executing his P.R. Bond in sum of Rs,50,000 before the trial Court. The application is allowed in the above terms.