' M. TABASSUM AFTAB ALVI, J.---The supra-titled writ petition has been addressed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 whereby following relief is solicited by the petitioner:-- "In view of above, it is, very humbly prayed that by accepting this writ petition the order dated 19-3- 2011 bearing No,480-84/ 2011 issued by respondent No,1 may kindly be declared illegal. It is further prayed that the vehicle in question may kindly be released in favour of the petitioner. Any other relief which this Hon'ble Court deems fit in the circumstances of the case may also be granted."
2. Precise facts giving rise to the instant writ petition are that the petitioner purchased a vehicle No,182 LXO Engine No,2L-TE 2426 Chassis No, LN130-0110996 Maker Surf Model 1993 from one Muhammad Khalid subject to payment of Rs,9,00,000 out of which a sum of Rs,5,00,000 was paid by him -to the above original owner. It is averred that documents of ownership were liable to be handed over to the petitioner after payment of remaining price to the said previous owner. It is stated that possession of the disputed vehicle was, however, handed over to the petitioner who was driving the same when S.H.O. Police Station City Mirpur confiscated the same under section 550 Criminal Procedure Code on 6-10-2010. It is claimed that the above-mentioned vehicle was later on released on "Superdari" in favour of respondent No,2 by respondent No,1 vide impugned order dated 19-3-2011. It is alleged that the impugned order was issued without lawful authority as respondent No,1 was flaying no authority under law to pass the order because vehicle in question was neither stolen nor involved in commission of any offence. It is stated that S.H.O. Respondent was bound under law to report the concerned Magistrate about the seizure of vehicle under section 523, Cr.P.C. However, needful was not done. As the respondents failed to deliver the possession of the vehicle, hence, the petitioner was constrained to file the instant writ petition before this Court on 8-4-2011.
3. After admission of petition the respondents were summoned for filing written statement, however, respondents Nos.3 and 4 filed parawise comments, which, on request of the learned counsel for the respondents were treated as written statement on behalf of all the respondents vide order dated 15-5-2012. A perusal of written statement reveals that almost all the contents of writ petition were admitted by the respondents except clarification, stating that vehicle was confiscated under Section 550 of Criminal Procedure Code.
4. The learned counsel for the petitioner, Mr. Sadaqat Hussain Raja, Advocate, while reiterating the grounds incorporated in writ petition, submitted that the respondents violated basic provisions of sections 550 and 523 of the Criminal Procedure Code while confiscating the vehicle in question.
The learned counsel emphasised that disputed vehicle was purchased by the petitioner from its original owner Khalid Mehmood, subject to payment of Rs,9,00,000 out of which Rs,5,00,000 were paid and in this regard an agreement was also executed between the parties, which was not controverted by the other side. The learned counsel vehemently argued that as the disputed vehicle was neither stolen A nor required in commission of any offence, therefore, S.H.O.
Respondent with colourable exercise of powers confiscated the same which may be released in favour of the petitioner. In support of his contentions, the learned counsel referred to and relied upon a case titled Hassan Muhammad v. Nazar Hussain and others, (2005 SCM R 1063).
5. The learned counsel for the respondents, Sardar M.R. Khan, Additional Advocate General, while controverting the arguments of the learned counsel for the petitioner submitted that as the petitioner was not owner of the disputed vehicle, hence, he was not entitled for its possession under law, therefore, the same was rightly confiscated by the S.H.O. City Police Station, Mirpur and later on it was released on "Superdari" in favour of Deputy Commissioner Rehabilitation, Mirpur vide order dated 19-3-2011. The learned counsel emphasised that under law only an owner can claim possession of any vehicle, therefore, the instant writ petition is not maintainable which may be consigned to record.
7. After hearing the learned counsel for the parties at length, I have perused the contents of writ petition and examined the appended documents with my utmost care.
8. A glance perusal of pars 2 of writ petition reveals that the petitioner specifically mentioned that vehicle No,182 LXO, Engine No,2L-TE2426, Chassis No,LN130-0110996, Maker Surf Model 1993 was purchased by him from one Muhammad Khalid subject to payment of Rs,9,00,000 out of which a sum of Rs,4,00,000 was liable to be paid by him at the time of delivery of documents. The above mentioned para was answered by respondents Nos.3 and 4 in the written statement as under:-- "That para No,2 of the instant writ petition needs no comments from respondents Nos.3 and 4."
' From perusal of the pleadings it is proved that purchase of disputed vehicle on the Out of the petitioner from its original owner was not disputed by the respondents. As per law, a police officer may seize any property, which may be alleged or suspected to have been stolen or which creates suspicion of commission of offence. In this regard section 550 of Criminal Procedure Code is reproduced as below:-- "Powers of Police to seize property suspected to be stolen. Any police-officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence. Such police-officer, if subordinate to the officer in charge of a police station, shall forthwith report the seizure to that officer."
' A bare reading of the above-mentioned statutory provision makes it crystal clear that confiscation made by S.H.O. Respondent was vis-a-vis to the basic provision of law. No any justification, whatsoever, was brought on record by the respondents about such confiscation. The vehicle was neither stolen or alleged as suspected nor involved in commission of any offence. The concerned S.H.O., therefore, by misusing his powers captured the disputed vehicle which was later on given on "Superdari" to Deputy Commissioner Rehabilitation Mirpur by District Magistrate Mirpur vide impugned order dated 19-3-2011. Both the high officials also failed to appreciate law on the given point. The order of confiscation of the concerned Station House Officer and order of "Superdari" dated 19-3-2011 are, therefore, patiently unlawful and without any legal justification. The point of confiscation came under consideration before the apex Court of Pakistan in case titled Hassan Muhammad v. Nazar Hussain and others (2005 SCM R 1063). At page 1064 of the precedent case it was held by their lordships as under:- - "In view of the above the question of title of the tractor and whether the conditions enumerated in the alleged executed agreement concerning the sale of tractor in question. Were complied with or otherwise squarely falls within the ambit of Civil Court. The parties may approach the Civil Court if so desired for the redressal of their grievances. As mentioned hereinabove that the tractor in question could not have been seized under section 550, Cr.P.C. And thus, the action of police is not only unlawful but depicts highhandedness and abuse of authority. It is worthwhile to mention here that the shops given by the petitioner have been rented out by Nazar Hussain (respondent No,1) who is enjoying the rent of the said shops and besides that an amount of Rs,1,11,000 was also received by him.. Nazar Hussain (respondent No,1) is present and directed to hand over the tractor in question to Hassan Mohammad (petitioner) immediately. Abdul Latif Sub-Inspector of Police is also present and is hereby directed to gel the order implemented in letter and sprit."
' In case of Muhammad Ramzan v. Station House Officer, Police Station Baghbanpura, Lahore and 2 others (1995 PCr.LJ 1947), at page 1951 it was observed as follows:-- "Section 550, Cr.P.C. Confers powers on Police Officers to seize property which is suspected to have been stolen, or which may be found under circumstances which create suspicion of. The commission of any offence. When a property has been seized by the police under section 550, Cr.
P. C. As aforesaid then the seizure has to be forthwith reported to a Magistrate under section 523, Cr.P.C. The Magistrate to whom the matter has been reported is required to make order respecting the disposal of the property or delivery of such property to the person entitled to its possession."
9. For what has been discussed above, the seizure of disputed vehicle by the S.H.O. Police Station, City Mirpur from the petitioner is declared to be without lawful authority and of no legal effect.
Consequently, order of Deputy Magistrate Mirpur. Dated 19-3-2011 pertaining to '"superdari" of the above vehicle in favour of Deputy Commissioner Rehabilitation, Mirpur is also quashed. It is further directed that the respondents shall deliver back the above vehicle to the petitioner forthwith. As the concerned S.H.O. Respondent misused his powers, hence, a sum of Rs,5000 as special costs shall be paid by him to the petitioner.
Petition accepted with costs.