Petitioner Zaheer Khan through the instant petition u/S. 561-A Cr.P.C. has sought for setting aside of the order dated 19.6.2003 passed by Mr. Munir Hussain Gill learned Judicial 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 9.7.2003 passed by Mian Muhammad Anwar, learned Addl. Sessions Judge, 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 FIR 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 Judicial 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 Addl. Sessions Judge 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 u/S. 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 Addl.
Sessions Judge, Kharian; that the car in question is being used by the SHO concerned and if it remains with him any further, there is every likelihood of it's deterioration or depredation 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. Teamed AAG 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 once stage in violation of the order of the ,`Superdari' recorded by learned Senior Civil Judge/Magistrate Section-30, Attock transferred the same to one Mushtaq Ahmad s/o Abdul Razzaq and thereafter he again got it transferred back to his name. He took it as a suspicious circumstance qua his bona 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 Judge/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 AAG 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 is question is with the concerned police. It is the allegation of the petitioner that SHO 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 Addl. Sessions Judge has declined his request for the purpose mainly for the reason that u/S. 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 Ist and 2nd provisos 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 Addl. Sessions Judge 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 some 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.
19. I therefore, accept this petition and set-aside those orders to secure the ends of justice with the direction to the learned trial Court to give the car in question on interim custody (Superdari) to the petitioner subject to his furnishing Superdari Nama in the sum of Rs, 6,00,000/- (Rupees six lacs) with two sureties each in the like amount to it's entire satisfaction.