' Zaheer Abbas petitioner has filed this criminal revision under Section 435/439, Cr.P.C. Against order dated 9.5.2015 passed by the learned Additional Sessions Judge, Attock whereby his application for Spurdari of vehicle/Tractor No. 6611-MI in case FIR No. 293/2014, under Sections 302/324/109/148/149, PPC registered at Police Station Saddar Attock was declined.
2. Learned counsel for the petitioner has contended that the petitioner is sole owner of the tractor in question and there is no other claimant; that the subject tractor is not the case property of case FIR No. 293/2014 as no registration number, model or the name of company has been mentioned therein; that in case the custody of subject tractor is not handed over to the petitioner, it value and utility will diminish and the petitioner would suffer irreparable loss, therefore, he is entitled to the Spurdari of subject tractor. Relies on cases titled "Muhammad Hanif vs. The State 2008 M LD 1416 [Lahore])" AND "Haji Rab Nawaz vs. The State. 1988 P.Cr,L.J. 1353 [Karachi])".
3. On the other hand, learned counsel for Respondent No. 1 has contended that the petitioner was not owner of the subject tractor at the time of occurrence and afterwards he got the same transferred in his name with mala fide intention; that he is grand-son of one of the accused namely Afsar A.I, nominated accused of the FIR, on whose plantation the same was recovered; that there is strong apprehension that the petitioner will sale out the subject tractor in order to create dent in the prosecution case, therefore, the same cannot be given to the petitioner on Spurdari.
Relies on case titled "Manzoor Hussain vs. The State 2008 M LD 1491 [Karachi])".
4. Arguments heard.-Record perused.
5. Bare perusal of FIR shows that no number, model, company .Name, description or owner of the subject tractor has been mentioned therein. This case was registered on 10.10.2014 and the subject tractor was taken into possession by the police on the plantation of one of the accused namely Afsar A.I. The petitioner got the subject tractor transferred in his name on 19.11.2014 from its previous owner namely Hameed Ullah. Neither the petitioner nor Hameed Ullah, previous owner of the subject tractor, is accused in the said FIR.
6. The subject tractor was used for ploughing the disputed land as alleged in the FIR. Neither the same was used by the accused for causing injuries to the deceased or the injured PWs nor for fleeing away from the spot. It has been held in case titled "Humayun Azam vs. Ch. Sadiq InspectorISHO Police Station Kunjah District Gujrat and 3 others (1999 M LD 1676)" as under:-- "Vehicle used for the running from the place of occurrence by the accused is not a "case property"- -- Vehicle used by an offender for going to or running from a place where an offence is committed by him, cannot be said to have been used for the commission of that offence and the same cannot be taken into possession by the Police as case property."
' It has also been held in case titled "Syed Razi Shah vs. The State (1971 P.Cr.L.J. 19 [Karachi])" as under:- "Words "property used for commission of an offence" in S. 517, imply only instruments like guns, swords etc. With which offence was committed. Vehicle used for going to and escaping from place of incident, not covered within "property used for commission of offence".
' The subject tractor was neither used for the commission of the offence nor for escaping from the crime scene and as such the same cannot at all be said to be an instrument for the commission of alleged offence.
7. The petitioner is the sole claimant/owner of the subject tractor and its seller admittedly has not claimed its custody and even it was not questioned by anybody else. The purpose of Section 516-A read with Section 517, Cr.P.C. Is to hand over proper custody of such property regarding which any offence appears to have been committed, pending the conclusion of trial or on its conclusion, in order to save the same from devastation where it was likely to be misused, damaged or its utility was to be diminished.
8. Learned trial Court has dismissed the claim of petitioner on the presumption that there is apprehension of tempering of prosecution evidence and misappropriation of the subject tractor as the petitioner is grand-son of nominated accused Afsar, therefore, he will not produce the same in the Court. The subject tractor cannot be retained on presumptions and the petitioner could be bound to submit surety bonds in order to safeguard the interest of the prosecution as well. The possession of vehicle is temporarily given to its owner till finalization of the proceedings and the only purpose of putting certain conditions upon Spurred/owner of the vehicle is to ensnre its production if, when and where it is required by the Court and as such the same cannot be said to have been delivered for good and the same is deemed to be under the constructive possession of the Court.
9. The petitioner as well as previous owner of the subject tractor is neither named in the FIR nor required in the said case. There is no rival claimant of the subject tractor, which cannot be said to have been used in the commission of alleged offence. Therefore, I am persuaded to hold that the learned Court below has not properly exercised the jurisdiction vested in it and has failed to appreciate law on the subject properly.
' In view of above, the revision petition in hand is allowed and the vehicle/tractor No. 6611/M.I. Is directed to be given to the petitioner on Spurdari subject to his furnishing surety bonds in the sum of Rs. 500,000/- with one surety in the like amount to the satisfaction of the learned trial Court. The petitioner is bound down to produce the subject tractor in the Court if and when called upon to do so during the proceedings of trial.