' Applicant Burkamal claims to be the owner of Datsun Taxi Car No, 871286, which was being run/driven by one Muhammad Yousuf, from whose possession it was secured by officials of Mithadar P.S. And was handed over to officials of Clifton P.S. It is alleged that during the course of investigation of Crime No,274 of 1988, one of the accused involved in that case disclosed that this taxi car was being used during the commission of dacoity and other crimes. The applicant applied for the custody of this taxi car under section 516-A, Cr.P.C., before Vth Additional Sessions Judge (South) Karachi, but his prayer was refused vide order, dated 4-1-1989. This order is the subject- matter of the present revision application.
2. I have heard Mr. Muhammad Akbar Khan, learned counsel for applicant and Mr. Jalaluddin Baluch, learned counsel for the State.
3. Section 516-A, Cr.P.C. Provides that when any property regarding which any offence appears to have been committed, or which appears to have been used for the commission of any offence, is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy or natural decay, may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of. It will be seen that section 516-A, Cr.P.C. Enables a Court to provide for interim custody, which order merges into final order passed under section 517, Cr.P.C. After trial or inquiry is over. The application made under section 516-A, Cr.P.C. By the applicant was dismissed by the learned Additional Sessions Judge for the following reasons:- "It is alleged that the vehicle No, 871-286 was used in the commission of the alleged offence under section 17(3), Hudood Ordinance after using plastic fake number plate. Therefore, the vehicle No,871-286 is the case property and an important piece of evidence. The case has yet not proceeded. Therefore, at this stage I do not find it proper to hand over the temporary custody of vehicle taxi No,871-286 to applicant at this stage."
4. There is allegation that the above taxi car was used for going to and escaping from the place of incident by the culprits, which in my view is not A covered within the meaning of the words 'which appears to have been used for the commission of any offence' in section 516-A, Cr.P.C. To take a common example, if the culprits escape in a train after the commission of offence the train will not fall within the mischief of the aforesaid words. This view gets support from the case of Haji Rab Nawaz v. The State reported in 1988 P Cr. L J 1353.
5. Mr. Muhammad Akbar Khan, learned counsel for applicant has invited my attention to the fact, that the applicant was in no way connected with the said offence, and was, therefore, entitled to interim custody of the said taxi car. The case of Miss Zarina Khan v. The State reported in 1970 P Cr. L J 1215, is a direct authority on this point. At page 1217, the following observations were made:- "In my view, the order of the learned Magistrate withholding the car from its true owner was entirely unjustified. Under section 516-A of the Criminal Procedure Code the Court has to pass order for 'proper custody' of the property regarding which an offence has been committed or which appears to have been used for commission of any offence. The car, in this case was owned and claimed by the petitioner who was not alleged to have done anything to advance the commission of the offence. The car may or may not have been subject to decay but the learned Magistrate entirely lost sight of the fact that by his unjustified refusal to hand over the car to the real owner, he was depriving her of her legal right to use her own property.
6. For the aforesaid reasons, I allow this revision application and set aside the order dated 4-1-1989, passed by learned Vth Additional Sessions Judge (South), Karachi, and further direct that Taxi Car No,871-286 be handed over to applicant on Superdiginama in the sum of Rs,50,000 that he would produce the said taxi car before the trial Court, as and when required.