Briefly stated the facts, giving rise to this petition under section 561-A, Cr.P.C. Are that a case under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, was registered on the allegations, amongst others, that one claimant John alongwith his family members had abducted Mst. Zonobia, aged 22 years, a Graduate Student, on 5-2-1983. In the F.I.R. One Ashfaq son of Khadija Begum petitioner was mentioned as friend of aforesaid claimant John. During Investigation, Ashfaq was also cited as an accused in the case. It is pertinent to note that during investigation, Badi-uz-Zaman complainant, father of the alleged abductee, informed the police that the accused after abduction of the girl have been carrying her in Car No. MND/165 Toyota Corolla. It was also reported to the Superintendent of Police, by the complainant that the aforesaid car was seen in Rawalpindi. On this information, Masood Tariq, S.-I. Was sent to Rawalpindi where the car was found parked near the building of Police Station 'C' Division, Rawalpindi. On 4th of October, 1983, he took into possession the said car alongwith Registration Book and Certificate of Insurance, etc. The Registration Book and the Insurance Certificate were in the name of Mst Khadija Begum petitioner. In the relevant Zimni No. 46, dated 4-10-1983 it was recorded that after abduction the accused had been carrying the abductee in' the said car. It is also mentioned therein that Nadeem. a brother of Ashfaq and one S.D.O. Was seen plying the car and the same was taken into custody by the respectables of the locality. On this, aforesaid Nadeem ran away and the S..D.O.
After knowing the Actual facts parked the car in the outer courtyard of the Police Station 'C' Division, Rawalpindi. Thereafter, Masood Tariq Sub-Inspector C.I.A. Sahiwal took into possession the said car.
2. Mst. Khadija Begum applied for Sapurdari on 11-10-1983 but the request was turned down by the City Magistrate, Sahiwal, vide order, dated 22-10-1983. A revision petition filed against the aforesaid order failed, vide order, dated 14-12-1983. The petitioner then instituted a writ petition (P.W. No. 14/84) but the same was withdrawn on 17-1-1984 for approaching the learned Magistrate again.
The petitioner then submitted an application for Sapurdari on 7-2-1984 but the same was rejected again, vide order, dated 17-4-1984. The learned City Magistrate, however, directed that the car be handed over to the District Nazir for custody till further orders, if any, by a Court of competent juris- -diction. The petitioner then moved Criminal Miscellaneous No. 33/Q of 1984 but the same was disposed of for approaching the learned Sessions Judge in revision. The petitioner then filed a revision petition but the same was rejected by the learned Sessions Judge, vide order, dated 17-6- 1984. The petitioner, therefore, filed the present petition under section 561-A, Cr.P.C. Seeking quashment of the impugned orders and for a direction that the car be given on Sapurdari to- her.
3. Learned counsel in support of the petition argued that the car in question could not legally be taken into possession by the police as the same was neither the "case property" nor was used for the commission of the offence. According to him, the allegation at best is that after abduction the accused had been carrying the abductee in the said ear. According to him use of the car, as such, for conveyance purposes by the accused after the offence of abduction was complete, cannot be made a basis for impounding the car. In support of this plea, Syed Razi Shah v. The State 1971 P Cr. L J 19 and Syed Bahawal Shah The Crown PLD 1951 B J 57 were cited.
PLD 1979 Kar. 430 and Republic Motors v. Anwar and others 1980 SC M R954 were relied upon.
4. Sh. Muhammad Akram, learned counsel for the complainant opposed the request of the petitioner by, urging that the applications made to the learned Magistrate for Sapurdari as well as the revision petitions filed were incompetent in law as the offence under section 11 of Ordinance VII of 1979 is triable by a Sessions Judge in view of the provisions contained in section 20 of the aforesaid Ordinance. According to him, all the orders passed in this respect by the learned Magistrate and the learned Sessions Judge were without jurisdiction. In the alternative, he argued that the provisions of section 561-A, Cr.P.C. Cannot be invoked as to set at naught the orders passed by the learned Sessions Judge in revisional jurisdiction. Thirdly, it was contended that Ashfaq Malik was co-owner of the car in dispute alongwith Mst. Khadija Begum petitioner, and as Ashfaq Malik is an accused in the case, the custody of the car should not be given to Mst. Khadija Begum specially when the accused was seen carrying the abductee in the said car after abduction. He further added that an S.D.O. Of WAPDA had parked the car in the courtyard of the police station and he, as such, was the person last in possession of the car. He having not come forward to get the car on Sapurdari, the same cannot be given on Sapurdari to the petitioner.
5. I have considered the respective pleas of the parties. The submission of the learned counsel for the complainant that the Sessions Court being the trial Court was the Court where the application for Sapurdari should have been made is without merit. It is true that under section 20 of Ordinance VII of 1979, the offences under the Ordinance are triable by a Court of Sessions and an appeal from an order of a Court of Sessions lies to the Federal Shariat Court. Section" 20(1) of the Ordinance, however, provides that the provisions of the Code of Criminal Procedure apply mutatus mutandus in respect of cases under the Ordinance. It is, therefore, obvious that the provisions of sections 516- A and 523 and other relevant provisions of the Code Of Criminal Procedure remain applicable, and a Magistrate or a competent Criminal Court can pass orders under the relevant sections of the Code.
6. The next question that arises is whether section 516-A or section 523, Cr.P.C. Is applicable in the present circumstances. Sections 516-A and 517, Cr.P.C. Deal with cases which have actually come up before the Criminal Court for enquiry or trial. Section 516-A, Cr.P.C. Enables a Magistrate to provide for the interim custody of goods pending the conclusion of the inquiry or trial. Where there has beep no inquiry or trial in a Criminal Court, the proper section to apply will be section 523 whichever may be the law under which the offence might have been committed and whatever happens in connection with the seizure of the property by the police during investigation without an inquiry or trial by the Court concerned. It is also well-established that under section 523, Cr.P.C.
An order is to be made for the disposal of the property in certain circumstances or for the delivery of its possession to the person entitled to possession. It is pertinent to note that it is not the case of the prosecution that the car was used for the commission of the offence of abduction. It is also not the allegation that the car was found under circumstances which create suspicion of the commission of any offence. The allegation is that after abduction the accused has been carrying the abductee in the said car.
I am of the considered view that on the aforesaid allegations, the car could not legally be seized by the police. In support of this view, the judgment cited by the learned counsel for the petitioner noted above, may be referred to. The argument that Ashfaq accused was the co-owner of the car, is based on the plea that in the certificate issued by the Registering Authority the particulars of Mst.
Khadija Begum noted are "Khadija Begum care of Ashfaq Manzar Malik". This argument, on its very face, is devoid of any merit. The Registration Book and Insurance Certificate is in the name of Mst.
Khadija Begum. The petitioner is not only the owner of the car but also is not an accused in the case. She is entitled to have the possession of the car. The act of the police in seizing the car is illegal and unauthorised.
7. For the reasons given above, the impugned orders being illegal are set aside. The District Nazir who is holding the car on Sapurdari under the order of the City Magistrate, is directed to deliver the car in question to the petitioner against a proper receipt.
8. This petition was accepted, vide short order, dated 11-7-1984 for the reasons to be recorded later.
The above are the reasons for accepting the petition, setting aside the impugned orders and for directing delivery of the car in question to the petitioner.
S.G.D.Sapurdari ordered.