A case under section 379/411, P. P. C. relating to the theft of telephone wires was registered at Police Station, Jaranwala as far back as November 1969 in which the car in question belonging to the petitioner was allegedly involved. It was taken into possession by the Investigating Officer and since then has continuously remained in the custody of the police. Subsequently, however, the petitioner is also stated to have been arrested in the same case which is still pending the trial having made no headway notwithstanding the lapse of a year and a quarter.
2. The petitioner's application under section 523, Cr. P. C. seeking the temporary custody of the car till the final decision of the case was dismissed by the learned trial Magistrate on the 2nd of April 1970. Having unsuccessfully challenged this order before the learned Additional Sessions Judge he has preferred the present revision in this Court.
3. Learned counsel for the petitioner contends that although if satisfied the learned trial Court would be justified even in making an order for the confiscation of the car under section 517, Cr. P. C. yet in view of the fact that not a single witness has been examined by the prosecution in this case coupled with undisputed circumstance that there is no rival claimant for the temporary custody of the vehicle in question which has already suffered considerable depreciation during this period of more than one year there should be no objection to its entrustment to the petitioner who is admittedly its owner subject to the condition of its production in Court if and when required to do so.
4. In the circumstances of the case no serious objection could be taken to the handing over of the temporary custody of the vehicle in question to the petitioner whose ownership is not disputed by the learned counsel for the State. Accordingly I allow this petition and direct that the temporary custody of the vehicle in question may be handed over to the petitioner on furnishing a suitable security to the satisfaction of the learned trial Magistrate undertaking to produce the same in Court as and when required. It also appears appropriate to direct that before the delivery of possession the vehicle should be got examined by a qualified person for the assessment of its price in order to guard against any possible substitution of its parts by parts of inferior quality.
5. Before parting with this case I would like to observe that no appeal was competent against the original order passed in this regard by the learned Magistrate which was only revisable by the learned Additional Sessions Judge who appears to have taken an erroneous view that it was an appealable order. Reference may be made in this regard to G/iulam All v. Emperor (1). [3]