ABDUL MAALIK GADDI, J.---Being aggrieved and dissatisfied with the order dated 2-3-2011 passed by learned Civil Judge and Judicial Magistrate-I, Sanghar in Criminal Miscellaneous Application No.4 of 2011 and the order dated 2-11-2011 passed by learned Additional Sessions Judge, Sanghar in Criminal Revision Application No.7 of 2011, wherein the application filed by the applicant under section 516-A Cr.P.C. And application under sections 435, 439-A, Cr.P.C. For release of vehicle Bedford Oil Tanker bearing Registration No.QAA-6689 (previous), TTB-980 (new), Engine No.RL3- 147035, Chassis No.RICL3-35832, Model 1968, on superdari basis, were dismissed hence the applicant preferred this application.
2. Relevant facts for disposal of this Criminal Miscellaneous Application are that on 11-7-2010 the Tanker in question bearing No.QAA-6689 was found standing at Oil Pipe Line of OGDCL near lands of Papu Wasan by the Salim Khan, Security Guard/Patrolling Incharge of OGDCL, who had informed to the complainant about the standing of Tanker in question. On such information the complainant along with other staff reached at the pointed place and found the Tanker in question filled with 1279 MM Crude Oil while the driver of the Tanker in question along with three unknown persons ran away.
Therefore, complainant had lodged such FIR against unknown persons while Tanker was seized by the police while involving the same in said crime. However, the said matter was disposed of under 'A' class since the culprits were untraceable.
3. It has been argued by learned counsel for the applicant that applicant is the owner of vehicle in question which he used to run/ply through his driver for supplying the oil at different petrol pumps.
He further contended that no incident has been taken place which mentioned in the false FIR bearing Crime No.75 of 2010. It has been further argued that impugned orders are against the law and facts and according to him, the applicant is a bona fide lawful owner of the vehicle and was earning his livelihood by plying the vehicle on rent and present applicant is not accused person in the case and nothing was on record to show that applicant had any knowledge that his driver used his vehicle for committing any offence. He further submits that this matter pertains to July 2010 and the vehicle allegedly involved in the case is lying at Police Station Sinjhoro since then and is parked in open space exposed to the vagaries of weather; its retention in police custody for an indefinite period would also achieve no useful purpose, therefore, while relying upon the case law reported as Shakeel Arshad v. The State (2008 MLD 1603), Ali Muhammad Kalhoro v. The State (2004 YLR 943), Zaheer Khan v. The State (2004 YLR 3198) and Ajjab Khan v. The State (2005 PCr.LJ 1510), has prayed for allowing this application.
4. Learned A.P.G. In view of the above stated facts and circumstances did not oppose this application.
5. I have heard learned counsel for the parties at length and perused the material available on record.
6. Factual position in this case is that applicant Gulan son of Muhammad Ibrahim Dahri is bona fide owner of the Oil Tanker in question. He has produced the registration book and annexed photocopy thereof with the instant application, which shows that according to record of Motor Registration Authority, Quetta, the applicant is owner thereof since 2010. There is no dispute about the fact that applicant was earning his livelihood through plying the said vehicle on rent. The question which needs determination in this case is as to whether the applicant is entitled to return of vehicle in question on superdari in accordance with law; in this connection as I have observed above, the applicant has already submitted copy of registration book which was duly verified by the Registration Authority vide its letter dated 27-8-2011 available at page 63 of the file, Annexure 'E' which has not been disputed by learned A.P.G. Or any other person which prima facie shows that applicant appears to be bona fide owner of the property in question but the said property was declined to release to the applicant on superdari, merely on the basis that applicant has failed to produce any previous record of ownership of the property in question. Since the fresh report is available on record that applicant is the owner of property in question, so, the reasons advanced by the two courts below in turning down his request for interim custody (superdari) of the tanker in questions seems to be not sound.
7. Perusal of the record shows that initially the investigation of the above case/crime was carried out by Investigating Officer Muhammad Hanif Shar from 11-7-2010 to 23-7-2010 and on his transfer, SIP Mir Muhammad Keerio carried out the investigation up to 31-7-2010 and according to his report, after completing usual investigation, the case was recommended to be disposed of under untraced 'A' class as the accused could not be traced out, later on the I.O. Was also transferred. It also appears from the record that property in question is lying at P.S. Sinjhoro District Sanghar under open sky and there is every likelihood of its depreciation and detoriation if the same is continued to be parked at police station.
8. The applicant by virtue of registration book which is available on record, appears to be lawful owner of the vehicle, who was earning his livelihood by plying the said vehicle on rent. Applicant is not accused person in the case and nothing is on record to show that applicant had any knowledge that the accused/driver would use the vehicle for committing any offence. To my mind, right of owner who had no knowledge of the commission of any offence or had any conscious, prima facie, is fully protected. Vehicle in question is parked in open space exposed to the vagaries of weather; its retention in police custody for an indefinite period would also achieve no useful purpose.
9. Admittedly, there is no rival claimant of the same either before this Court or before the Courts below to claim the ownership of the property in question. Even otherwise, the property claimed by actual owner in respect whereof some offence has been committed, could be restored to its original owner on superdari after fulfillment of legal formalities. Here in this case applicant has produced sufficient documents showing his ownership which has not been disputed by learned APG. Under these circumstances and in view of no objection as recorded by learned A.P.G, the impugned orders dated 2-3-2011 and 2-11-2011 passed by two Courts below are hereby set aside.
Resultantly, the instant Criminal Miscellaneous Application is allowed with direction to the SHO PS Sinjhoro to release the vehicle in question to the applicant on superdari, after his furnishing solvent surety in the sum of Rs.300,000 (Three lac) and P.R. Bond in the like amount to the satisfaction of the trial Court.
10. Before parting with this order, it may be clarified that since the learned A.P.G. Has pointed out that some kind of oil is still available in the said Tanker which is denied by counsel for applicant, however, in this regard SHO PS Sinjhoro is directed to get the said Tanker empty, if any oil is available in it, in presence of two respectable persons of the locality and prepare such mashirnama in their presence and then handover the said oil to its lawful owner after obtaining permission from the trial court.
11. With these observations, this Criminal Miscellaneous Application is allowed. However, the applicant will not sell out this vehicle till prior permission of the trial Court.