' Since common question of law is involved in all the above revision applications filed under section 435/439, Cr.P.C., they are being disposed of by a consolidated judgment.
2. The applicants are woners of bus/trucks which were involved in road accidents and cases under section 320 of the Qisas and Diyat Ordinance, 1990, were registered against their drivers, who were sent up to stand trial for the said offence. The applicants, being the owners of these vehicles applied for their interim custody on Superdiginama, but their prayers were refused by learned Sessions Judge Central Karachi, mainly on the ground that the vehicles being the `weapons of offence' their custody could be delivered to applicants only after all the material witnesses are examined. The applicants have assailed the orders by which interim custody of their respective vehicles was refused to them in these revision applications.
3. I have heard learned counsel for the applicants and Mr. Vakeel Ahmed Qureshi, learned counsel for the State. The latter has not supported the impugned orders.
4. Section 516-A, Cr.P.C., which deals with the disposal of property pending trial provides as follows:- "When any property regarding which any offence appears to have been committed, or which appears to have been used for 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: ' Provided that, if the property consists of explosive substances, the Court shall not order it to be sold or handed over any person other than a Government Department or office dealing with, or to an authorised dealer in, such substances."
5. A bare reading of the above provision of law would show that the property can be detained only if it is subject-matter of an offence, or if it has been used for the commission of any offence.
Admittedly the bus and the trucks detained in these cases are not the subject-matter of any offence. These vehicles were detained because in the opinion of the learned Sessions Judge they were used in the commission of offence as 'weapons'. In coming to that conclusion he felt himself satisfied by the definition of 'weapon' as given in Concise Oxford Dictionary, Seventh Edition. There is, however, ample authority for the proposition that in a prosecution of a driver for causing hurt, simple or grievous or death of a person, by rash or negligent driving, the vehicle cannot be said to have been used by the accused for the commission of the said offence. The case of Phula Singh v.
Emperor reported in A.I.R. 1931 Lahore 565, is a leading judgment on this point, wherein it was held:- "The Magistrate's order detaining the motor car pending the conclusion of the trial is illegal and cannot be sustained. He has apparently been influenced by the order of the District Magistrate which was obviously improper as it was his duty to decide the matter himself on the facts and the law applicable to the case.
' I think it would be straining the language to hold that the motor-car was used for the commission of the offence within the meaning of section 516-A, Criminal P.C. The ruling in Emperor v. Illahi Baksh 1904 4 P.L.R. 1904, is directly applicable to the case."
6. In the case of Syed Razi Shah v. The State reported in 1971 P Cr. L J 19, a Division Bench of this Court interpreted the words, "property used for commission of an offence," in relation to section 517, Cr.P.C. And observed that these words imply only instruments like guns, swords etc. With which the offence was committed. At page 22 it was remarked:- "In the Concise Oxford Dictionary the word 'use' has been defined to mean, 'employ' for a purpose.
In this context if the word 'property' occurring earlier in the section is read with the words 'used for the 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. The jeep 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.' Here the subject-matter of the charge was not the escape of Rajab Ali in the jeep but the murderous assault by means of a lethal weapon such as a revolver."
7. The case of Rai Bashir Ahmed v. The State, reported in 1971, P Cr. L J 255, again lends support to the above view, in which a distinction was drawn between custody of crime weapon and of any other property involved in a crime like a motor-car or any other means of transport and finally it was observed:- "Admittedly gun is property of the petitioner. It is a weapon of offence and his case is obviously distinguishable from any other property such as a motor-car or any other means of transport the driver of which gets involved under section 338, P.P.C. Or a hackney carriage whose driver is accused of an offence under section 279, P.P.C., or a ferry used by a criminal for crossing a stream in his attempt to escape from the scene of the crime."
8. The case of Sheraz Elahi v. The,State, reported in 1984, PCr.LJ 1935, is a direct authority on this subject, in which it was held that the wagon involved in an accident causing death of deceased persons could not be deemed to have been employed as weapon of such offence within the meaning of section 517, Cr.P.C. It may be added 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 the trial is over.
9. The words "which appears to have been used for the commission of any offence" were examined by me in the case of Burkamal v. The State, reported in 1989 P Cr. L J 1110, and it was held:-- "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 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."
10. Admittedly none of the applicants did anything to advance commission of an offence and they cannot be held liable for what their drivers had done. In such a situation the Court was bound to release the vehicles to their respective owners for 'proper custody'. If any direct authority is needed the case of Miss Zarina Khan v..The State, reported in 1970 PCr.LJ 1215, may be cited with advantage, wherein it was held:-- "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."
11. The weighty observations made by this Court in cases of Ghulam Akbar v. Muhammad Ilyas and another, reported in 1974 PCr.LJ Note 53 at page 34, and Haji Rab Nawaz v. The State, reported in 1988, P.Cr.L.J. 1353, are also attracted to these cases. In the latter citation my learned brother Mamoon Kazi, J. Allowed the custody of a wagon to its owner, which was allegedly used in the commission of a murder, for the following reasons:- "In any case leaving the wagon in custody of the police will not serve any purpose except reducing its utility. Moreover, it will tantamount to penalising the applicant unnecessarily as he does not appear to be involved in the commission of the alleged offence. Therefore, there is no doubt in my mind that the order passed by the learned Sessions Court will unnecessarily cause hardship to the applicant."
12. Section 95 of the Motor Vehicles Ordinance, 1965, provides for inspection of vehicle involved in an accident in the following manner:- " Inspection of vehicle involved in accident.--When any accident occurs in which a motor vehicle is involved, any person authorised in this behalf by Government may, on production if so required of his authority, inspect the vehicle and for that purpose may enter at any reasonable time any premises where the vehicle may be, and may remove the vehicle for examination: ' Provided that the place to which the vehicle is removed shall be intimated to the owner of the vehicle and the vehicle shall be returned without unnecessary delay, and in no case later than forty-eight hours of its removal."
13. It is thus evident that the object for which the vehicle is seized is the inspection of the vehicle by the Examiner appointed by the Government in this befalf. Section 95 of the Motor Vehicles Ordinance, 1965, makes it clear that the vehicle is to be returned to its owner without unnecessary delay, and in no case later than forty-eight hours of its removal. In such an exigency the question whether an order of a Court for the delivery of vehicle to its owner is necessary becomes a debatable issue.
14. In deciding a question of law it is the duty of a Judge to ascertain whether any pronouncement of the Supreme Court or the High Court exists on the point, and as observed in the case of Karam Husain Mukhtar v. Muhammad Khalil, reported in AIR 1946 Allahabad 509, it is the bounden duty of the Judges subordinate to the High Court to implicitly follow the decisions pronounced by the High Court. The manner in which the learned Sessions Judge has side-tracked the case-law produced before him is unfortunate and if the reasons given by him in the impugned orders were to be accepted, it would mean that the precedents in criminal cases on a point of law have got no binding force. It may, however, be added that decisions of the highest Courts on question of facts cannot be cited as precedents governing the decision of other cases. Care should, however, be taken to differentiate a 'question of law' and a 'question of fact' decided by the superior Courts.
15. After a careful and anxious study of the cases referred to above, I am clear in my mind that the impugned orders cannot be sustained and are set aside. All the revision applications are accepted and the concerned S.H.Os. Are directed to return the bus/trucks to their respective owners on a Superdiginama in the sum of Rs.50,000 (Rs. Fifty thousand only) each, who shall also verify the documents relating to the ownership of bus/trucks before releasing them to their respective owners.
16. By short orders dated 11-2-1991, I had allowed these revision applications. These are reasons for the said orders.
Revision .