' The petition is addressed against the order of District Criminal Court, Mirpur, passed on 6th April, 1991, whereby Jeep No, GTA/9191, allegedly used in the commission of offence of murder, was delivered to the respondent on his `Spurdari' on execution of bond, till the conclusion of the trial.
2. Muzaffar Hussain was ascribed the offence of murder of Jamil Ahmed deceased. It was alleged that on 26th April, 1990 at 4-30 p.m., Muzaffar Hussain was driving Jeep No,GTA/9191. He hit and bumped Jamil Ahmed twice with the jeep resulting in fatal injuries. The accused absconded. The jeep was presented before the Court on 18th July, 1990. On July, 23 Razaul Haq, brother of the accused, moved an application before the trial Court for delivering possession of the jeep on his `Spurdari'. The learned District Qazi, a member of the Court, ordered that the jeep seized by the investigating agency as a piece of evidence, should be delivered on the `Spurdari' of its owner who shall produce it before the Court when so required. Razaul Haq executed a bond in the light of the aforesaid order, on August 4, 1990 and took possession of the jeep. Muhammad Ashraf moved the trial Court on August 21, 1990 to set aside the order of `Spurdari'. It was alleged that the jeep was delivered to Razaul Haq in derogation to the order of the Court. The `Spurdar' had disappeared, as such, the police may be directed to recover the jeep for its production before the Court. Notice was issued to the `Spurdar' who submitted his objections on September 19 and repudiated the allegations of his absconsion and illegal disposal of the jeep. During the pendency of the application, another application was moved by Razaul Haq, wherein it was stated that after getting possession of the jeep, he went to England for couple of months and left the vehicle in the custody of one Muhammad Irshad, so that the same may be produced in the Court on its demand. As the Court ordered the production of the jeep on November 28, the local police recovered the jeep and retained it in its custody. It was prayed that the order of `Spurdari' of Razaul Haq may be maintained and the jeep may be left in the custody of Muhammad Irshad till the time of arrival of Razaul Haq from England. The Public Prosecutor also moved an application on the same day for production of the jeep in the Court on December 12, 1990. The application was granted. Ultimately, the trial Court passed the impugned order. The jeep in question was delivered to Muhammad Irshad on his `Spurdari' with the condition A that he shall produce the jeep in the Court whenever so required and in default, he shall be liable to deposit a sum of Rs,3,00,000 in the Government treasury. He was further ordered to refrain from taking the jeep within the territorial limits of Sub- Division Dadyal. The `Spurdar' was made liable to legal action in case of violation of the aforesaid conditions. This order has been assailed in the present petition.
3. Mr. Muhammad Yunus Surakhvi, the learned Counsel for the petitioner, argued that Muhammad Irshad on whose `Spurdari' the jeep was delivered, was closely related to the accused person.
Therefore, it was apprehended that he would destroy the evidence of alleged violence ascribed to Muzaffar Hussain accused. It was emphasised that in view of the attending circumstances of the case, it was in the interest of justice to cancel the `Spurdari' of the relative of the accused and to deliver the jeep on the `Spurdari' of some neutral person. Mr. M.S. Tariq, the learned counsel for the opposite side, controverted the aforesaid objections and supported the impugned order. It was alleged that the trial Court is vested with the discretion to deliver possession of the jeep to a suitable person during the trial. The only necessary condition in such situation was to secure satisfactory bond from the `Spurdar' for production of the vehicle in the Court when so required. As the `Spurdar' has given sufficient security in the sum of Rs,3,00,000 and gave undertaking to produce the jeep in the Court during the trial, the impugned order was not liable to be interfered by this Court.
4. The trial is at its initial stage. The police officer entrusted with the duty of arrest of the accused, has reported back that the accused has absconded. Thus, in support of the aforesaid report, statement of such police officer has been recorded and trial Court has proceeded against the accused under section 512, Cr.P.C. The trial Court has also directed the prosecution to produce the evidence to enable it to record testimony of the persons having the knowledge of the commission of alleged offence of murder and other attending circumstances relevant to alleged incident. The witnesses are shown to have come in the Court but they were sent back without recording their evidence, on account of preoccupation with other cases.
5. The relevant provisions which apply to the custody and disposal of the property regarding which any offence appears to have been committed or which appears to have been used for the commission of any offence, are postulated under section 516-A, Cr.P.C. By virtue of these provisions, the trial Court is empowered to make such orders as it thinks proper for the proper custody of property regarding which an offence appears to have been committed or which appears to have been used for the commission of offence, pending the conclusion of the trial. These provisions are attracted in respect of the custody and disposal of the property during the trial. The condition precedent, therefore, is that during the trial or inquiry, the Court shall dispose of the property pending trial which, prima facie, is the property (i) in respect of which any offence has been committed; or (ii) which has been used for the commission of any offence. Secondly, the property is disposed of by delivery of its custody when the Court comes to conclusion that it is in the interest of justice that during the trial such property may be kept in the custody of either of the parties or third party, as the case may be, to avoid any likely damage, decay or destruction of the property.
6. In the present case, the property in question is Jeep No,GTA/9191 which, according to prosecution, appears to have been used for the commission of offence of murder of the deceased. Thus, the vehicle in question is, prima facie, a main piece of evidence in the case. Its production in the Courts during the trial is of much importance. Therefore, ordinarily, the trial Court is enjoined with duty to take all measures for proper custody of the vehicle.
7. In order to avoid any likelihood of misuse or improper use of the vehicle, it was not deemed expedient to leave it in the custody of the police. Moreover, to maintain the machinery properly, it was desirable that the vehicle should be kept in such condition that its engine or body was not subjected to any natural or unnatural decay till the conclusion of the trial. In consideration of the aforesaid position, it was necessary to keep the vehicle in the custody of safe hands.
8. The scheme of law referred to above vests the authority of delivering the custody of the property in the trial Court. Thus, the discretion vested in the trial Court was to be exercised in strict judicial sense. In the present case, it appears from the order of the trial Court passed on July 23, last that the learned District Qazi, a member of the Court, directed that the vehicle may be delivered on the `Spurdari' of its owner. The accused, alleged owner of the vehicle, was absconding, as such the application for custody of the vehicle was moved by Razaul Haq, his real brother. It was stated at the Bar that no documents relating to ownership of the vehicle were readily available to enable the Court to determine its real ownership. The jeep, according to prosecution, was recovered after the alleged incident on April 28, in village Siakh, Tehsil Dadyal, in presence of Khawaja Muhammad Arif and Qazi Naeem Ahmed. It was not shown from the recovery memo that it was recovered at the instance of the accused or anyone of his relatives, including Razaul Haq. Nevertheless, it was explained in the recovery memo that the vehicle was used in the commission of offence of murder.
In the circumstances, prima facie, there was no evidence on record to hold that the accused who used the vehicle for the commission of offence, was its lawful owner. Thus, the delivery of custody of the jeep in favour of Razaul Haq was not deemed a sufficient compliance with the order of the Court passed on July 23. Be that as it may, the fact remains that the Court set the controversy ut rest through the impugned order.
9. In the impugned order, the Court felt satisfied to deliver the custody of the vehicle to the respondent on execution of bond containing the conditions described in the impugned order. The law, of course, does not postulate the modalities or restrictions pertaining to custody of the property used for 'the commission of offence, but consensus is that custody of such property has to be delivered to a suitable person by taking all measures of care to ensure the safety, protection and required conditions of the property, including the consideration of its production before the Court during the trial. Here, in the present case, no doubt, the vehicle was delivered to the custody of the respondent but the impugned order does not provide guarantee of safety, security and protection of the vehicle for its production in the Court during the trial. The impugned order lays down the condition that in default of production of the jeep in the Court, a sum of Rs,3,00,000 shall be deposited by the `Spurdar' in the Government treasury. The fact of the matter is that the vehicle was allegedly used for the commission of offence of murder. In case this piece of evidence is somehow destroyed, the culprit would obviously go unpunished on the charge of alleged offence or murder. The legal heirs of the deceased, in situation, were not going to be compensated even by the award of amount of `diyyat' or compensatory costs. From their point of view, the order was obviously defective. Therefore, it need its amendment.
10. It is, therefore, ordered that the respondent shall furnish a fresh bond to the satisfaction of Sub- Judge, Magistrate 1st Class, Mirpur, by giving undertaking that he shall maintain the jeep in the present condition by protecting its safety, security and current condition. He will produce the jeep in the trial Court on every date of hearing till the conclusion of the trial. In case of his failure to comply with the aforesaid conditions, he would undertake to deposit a sum of Rs,3,00,000 (rupees there lac) as already fixed by the trial Court. The bond shall be executed by the surety of the sufficient means as well as personal bond of the `Spurdar', to the satisfaction of aforementioned Magistrate. The bond shall be furnished within five days from the date of this order, otherwise S.P.
Mirpur shall take immediate steps to recover the vehicle from the respondent and produce it before the Court for its proper disposal. The petition is disposed of accordingly.