' In the F.I.R. Of occurrence lodged in the early hours of the 15th January, 1988, Atlas Khan Driver of Suzuki Car No, BUB 762, owned by Sher Mast Khan petitioner, in furtherance of his common intention with his co-accused Najibullah, are alleged to have deceptively made Sikandar complainant to sit in the said car and then robbed him of a sum of Rs, 2,700. The complainant was then left near the path leading to Kakkakhel. As a step towards legal requirement the said car was impounded by the local police of Police Station, Pezu. An application was filed by Sher Mast Khan petitioner before the Magistrate of the First Class, Lakki Marwat, for release of the car to him on furnishing security to the satisfaction of the Court. The learned Magistrate, by order dated the 16th January, 1988, directed that the possession of the car be handed over to the petitioner on executing a bond in the sum of Rs, one lac with one surety in the like amount. The surety bond was accordingly executed and the car was delivered to the petitioner. Under one of the conditions of the bond, the petitioner and his surety undertook to produce the vehicle as and when it was required by the Court. On the 2nd of March, 1988, the petitioner moved still another application to the Magistrate seeking permission to sell the car, in that, after completion of the investigation his driver Atlas Khan and his co-accused have been challaned to the Court tb stand their trial and further that the petitioner was not aware of the commission of the offence. On the same day, the learned Magistrate without notice to the State passed the following short order:-- "There is no ban on the disposal of the motor car from this Court."
2. After succeeding in his endeavour to get the so-called permission from the Magistrate, the petitioner is alleged to have sold away the car. On the 3rd December, 1988 when the evidence of the prosecution was being recorded before the learned Additional Sessions Judge, Lakki it transpired that the car which was the case property had not been produced. In consequence the learned trial Judge issued notice to produce the car or else to show-cause as to why amount of the bond should not he confiscated to the State. On the next hearing, the petitioner appeared who was also directed by the learned trial Judge to produce the vehicle on the adjourned hearing on 20-2-1989. In the meantime the petitioner moved an application before the learned trial Judge for dispensing with the production of the car during trial, in that, he had since disposed of the car with the permission of the Magistrate Illaqa. The learned trial Judge, however, by his order dated 18-2- 1990 forfeited the amount of bond and directed the Illaqa Magistrate to proceed against the surety under section 514, Cr.P.C.
3. Feeling aggrieved of the said order, Sher Mast Khan and his brother Shah Dad Khan filed this petition under section 561-A, Cr.P.C., for the quashment of the order dated 18-2-1990 passed by the learned Additional Sessions Judge, Bannu, at Lakki, whereby amount of bond in respect of the vehicle had been forfeited to the State and had directed its recovery by way of initiating proceedings under section 514, Cr.P.C., against the surety.
4. Mr. Sanaullah Khan, Gandapur, Advocate, appearing on behalf of the petitioners, submitted on the authority of Syed Razi Shah v. The State 1971 P Cr. L J 19, that the Suzuki Car belonging to the petitioner and allegedly used in the commission of the crime does not fall within the purview of words "property used for commission of an offerice" occurring in section 517, Cr.P.C., and, therefore, the learned Additional Sessions Judge had fallen into an error to insist upon the production thereof as also to forfeit the amount of bond executed by surety Shah Dam Khan petitioner No, 2.
5. The ratio in Division Bench case of Razi Shah by the Balochistan and Sindh High Court was that the word "property" occurring in section 517, Cr.P.C., if read with the words used for commission of any offence", it would clearly mean such property as has been employed in the commission of any offence and that could only imply an instrument with which the offence was committed. Relying on:
(1) Jarip Gazi v. Emperor (1 Cr. L J 849), (2) Abnish Chandra Bhuttacharjee v. Emperor (6 Cr. L J 293) and (3) Sayced Bahawal Shah v. Crown (PLD 1951 BJ 57), the learned Division Bench came to the conclusion that the vehicle which was merely used "for going to and escaping from the place of incident" could not thus be covered within the meaning of the words "property used for commission of any offence". I have had the occasion to peruse the two cases of Syed Razi Shah and Sayeed Bahawal Shah relied upon by the learned counsel for the petitioners. There is no cavil with the proposition determined by a Single Bench of Baghdad-ul-Jadid in Syed Bahawal Shah's case and a Division Bench in Razi Shah's case. Both the cases have distinguishing features in that the vehicles confiscated in the authoritative pronouncements cited above were not used for the commission of any offence. Conversely, they were used by the accused for going to and escaping from the place of incident. In the case in hand, the case of the prosecution is that the two accused had committed the offence in the vehicle itself involved in this case. Another distinguishing feature in the present case is that section 517, Cr.P.C., comes into play when an enquiry or a trial in any Criminal Court is concluded. For reaching this conclusion I am fortified by the opening words "when an enquiry or a trial in any Criminal Court is concluded" of this section. The only provision of law which would have governed the case in hand is section 523, Cr.P.C.
6. The moot point for the determination in the present case is to whether petitioner Nb. 1 notwithstanding the interim custody of the vehicle within the contemplation of section 523 ibid, could dispose of the vehicle before the conclusion of the trial. The answer would be certainly in negative in that the car in which the victim was robbed of his money was "found under circumstances which create suspicion of the commission of an offence". Consequently the Magistrate had ordered the delivery of such car to the petitioner who was found entitled to the possession thereof. The learned Magistrate has passed the earlier order dated 16-1-1988 on furnishing bond in the sum of Rs, One Lac with one surety in the like amount. Obviously this order was competently passed under subsection (1) of section 523, Cr.P.C. Nonetheless the subsequence order dated 2-3-1988 impugned before the learned Additional Sessions Judge is not only unwarranted by law but has also been passed without any notice to the State.
7. In these circumstances, the Magistrate had fallen into a grave error to allow the petitioner to dispose of the car which was "found under circumstances which created suspicion of the commission of any offence" before the conclusion of the trial by the learned Additional Sessions Judge. The authority of Razi Shah's case cited by the learned counsel for the petitioners in order to lend support to the impugned order passed by the Magistrate is not attracted and the learned trial Judge was right in holding that the vehicle should be produced before him and having failed to do so he had rightly served the notice upon the surety to show-cause as to why the amount of the bond which he had forfeited should not be recovered.
8. I have also not been impressed by another argument of the learned counsel for the petitioners that the impugned order had been purportedly passed under section 516-A, Cr.P.C. The opening words "when any property regarding which any offence appears to have been committed" occurring in section 516-A ibid, are also not attracted to the case in hand because the offences with which the accused have been charged are not regarding the vehicle in question. The vehicle was actually used as a means towards accomplishment of the crimes with which the two accused stand charged.
9. The provisions of section 516-A, Cr.P.C. Were, therefore, not attracted to the present case and the order dated 2-3-1988 passed by the Magistrate did not fall within the ambit of section 516-A, Cr.P.C.
10. For the foregoing reasons, I find no substance in this petition under section 516-A, Cr.P.C. Which is dismissed in limine.