1. ' SYED HAIDER ALI PIRZADA, J.--- The petitioners through this petition have prayed for the following reliefs:-- "(a) declare that the police has no authority, power or jurisdiction to detain a vehicle involved in road accident beyond 48 hours after examination of vehicle by Motor Vehicle Inspector and that the act of the respondents is unjust, unreasonable, discriminately, mala fide and without lawful authority;
(b) declare that direction to vehicle owners to produce release orders from Court to Police before the vehicle involved in an accident is released, is not warranted by law;
(c) order the respondents and their subordinates to hand over custody of the vehicles involved in road accidents, immediately after examination of the vehicle by a Motor Vehicle Inspector within 48 hours thereof in terms of section 95 of the Motor Vehicles Ordinance, 1965 to its owner or the person from whose custody it was taken or detained;
(d) any other relief deemed fit in the circumstances of the case;
(e) compensatory costs."
2. ' The brief facts leading to the filing of the above petition are that the petitioner No,1 is the oldest Association of Karachi Bus Owners, having been registered under the Societies Registration Act, 1860. The petitioner No,2 is a member thereof and is also owner of Bus No,JA-2704 plying on Route No,1-D, Karachi.
3. The respondent No,1 registered a criminal case being F.I.R. No,303/92 on 29th October, 1992 at 5-30 p.m. At Police Station Jamshed Quarters, Karachi under section 320 of Qisas and Diyat Ordinance against Driver Akbar son of Ajab Khan for criminal offence of causing death of a passerby on Jahangir Road due to rash and negligent driving. The said Akbar was arrested and the bus was taken into custody by the police.
4. ' It is alleged that it is common practice with Karachi police that they illegally seize the vehicle involved in any accident, or any other crime while the accused involved in the offence is provided every facility of releasing him on bail or otherwise, thereby the owners of public vehicle are harassed, blackmailed and coerced to submit illegal police demands. Any owner of a bus who refuses to bow before police, has to bear burden of engaging advocates and contesting application under section 516-A of the Code of Criminal Procedure, 1898 as if the bus/vehicle is also a crime property like stolen goods or a crime weapon like gun, pistols etc. In such cases, the owners are directed to get release orders from Ilaqa Magistrate/Court.
5. ' The case of the petitioners, as set out in the petition, is that the petitioner No,1 has been continuously representing before the Sindh Government, Sindh Police and other authorities including R.TA. Time and again, that they should not exceed the limits of law and should not punish the innocent owners of vehicles in view of settled law that a bus involved in an accident or a vehicle involved in other crime, cannot be treated as a crime weapon and the same has to be released as soon as possible. In this connection, the petitioner No,1 submitted a representation as far back as on 30-3-1991 to the Chief Secretary, Sindh and another representation to the D.I.-G., Karachi on 30-9-1992. There is absolutely no response and the authorities in Sindh appear to be powerless before Karachi Police.
6. ' The respondent No,2 got the bus in question examined from the Motor Vehicle Inspector on 30-10- 1992 at 8-15 a.m. But he is not prepared to act according to section 95 of the Motor Vehicles Ordinance, 1965.
7. ' It is the further case of the petitioners that the respondents have no power, authority or jurisdiction to keep a vehicle/bus involved in an accident, in custody beyond 48 hours of inspection of the vehicle by a M.V.I. And thus the act of the respondents in not handing over custody of the bus in question to its lawful owner is illegal coercive and mala fide. The petitioners have associated the order by which interim custody of petitioner No,2, vehicle was refused to him in this petition.
8. ' We have heard Mr. Raja Haq Nawaz, learned counsel for the petitioners and Mr. Syed Sarfraz Ahmed, learned Additional Advocate-General, Sindh for the respondents. The petition was admitted for regular hearing on 12-11-1992. Notice of Miscellaneous Application No,5966 of 1992 was issued to the respondents for 16-11-1992. By consent of the learned counsel, we heard the Miscellaneous Application and the petition on 16-11-1992 as the points involved are the same.
9. ' In order to appreciate the respective contentions of the learned counsel, it is advantageous to reproduce the provisions of section 516-A, Cr.P.C. And section 95 of the Motor Vehicles Ordinance, 1965, which read as under:-- "516-A. 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 property 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:"
95. Jnspection 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 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."
10. 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 bus, in this case, is owned and claimed by the petitioner No,2 who is not alleged to have done anything to advance the commission of the offence.
11. The petitioner No,2 claiming to be the owner of the bus applied to the respondent No,2 for the release of the bus. The bus was not released to him. Thereafter the petitioner No,2 attempted to secure the release of his bus but was always put off on one pretext or another and eventually failing to obtain any satisfaction, they came to this Court. The petitioner No,2 is plying the above bus on Route No,1-D, Karachi, and the detention of the bus since October, 1992, it being 16th November, 1992, has put him to heavy loss, and he is not an accused in the case, that the bus is being kept uncared for, and he apprehends that the machinery must be deteriorating.
12. ' It is well-settled law that in a prosecution of a driver for causing hurt, simple or grievous or death of a person, by rash and negligent driving, the vehicle cannot be said to have been used by the accused for the commission of the said offence.
13. ' In Phula Singh v. Emperor AIR 1931 Lah. 565, a learned Single Judge of the Lahore High Court held as follows:-- "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."
14. ' In the Crow v. Ilahi Bakhsh (1904) Crl. Law Journal, Volume 1, p.38, Magistrate of the 1st Class in the Delhi District, sentenced Ilahi Bakhsh under section 279, Cr.P.C. To pay a fine of Rs,50. It was also ordered under section 517, Cr.P.C. That the cart, pony and harness which the accused was driving should be sold to realize upto. Rs,90 which should be paid as compensation to the complainant. Sir William Clark, Kt. Chief Justice of the Punjab High Court held that the order was illegal. In another case reported in AIR 1945 Pat. 44, a businessman applied for release of his truck which had been taken into custody in connection with an offence of smuggling of yarn committed by his son-in- law. An order for release of the truck was passed upon security which was furnished. In spite of this, the Magistrate refused to release the truck on the ground that it was required as an exhibit in another case under Arms Act in which it was alleged that a revolver and live cartridges were found in the truck. On revision it was held that the order of detention was unfair and unjust. It was thus, set aside.
15. ' In Syed Razi Shah v. The State 1971 P Cr, L J 19 a Division Bench of this Court interpreted the words "property used for commission of an offence" occurring in section 517, Cr.P.C. And observed that these words imply only instruments like guns, swords etc. With which offence was committed. At page 22 of the report, it was observed:-- "In the Concise Oxford Dictionary the word "use" has been defined to mean, "employ for a purpose".
16. In this context if the word "property" occurring either 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 an escaping from the place of incident could not thus be covered within the meaning of the words "property .... Used for commission of any offence."
17. ' Again in Sheraz Illahi v. State 1984 P Cr. L J 1935 a learned Single Judge of Lahore High Court held that the wagon cannot be deemed to have been employed as a weapon of such offence within the meaning of section 517, Cr.P.C. Similar view was expressed in Syed Bahawal Shah v. Crown PLD 1951 BJ 57.
18. ' In re: Abdul Azeez AIR 1944 Mad. 59 the accused was charged under section 65 of the City Police Act in connection with some hides which he was found carrying in a cart. He was charged only in respect of the hides and not in respect of the cart but all the same the Magistrate directed the confiscation of the cart as well. The Madras High Court, however, held that the offence being only in respect of the hides, there was no justification for passing an order, in respect of the cart, confiscating it. The only order that ought to have been passed was an order directing the return of the same to the accused from whose possession it was seized.
19. ' In Haji Rab Nawaz v. The State 1988 PCrLJ 1353 a learned Single Judge of this Court held as follows:-- "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."
20. ' In Burkamal v. The State 1989 P Cr. L J 1110, a learned Single Judge of this Court 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.
21. ' To take a common example, if the culprits escape in a train after commission of offence the train will not fall within the mischief of the aforesaid words."
22. ' In Muhammad Rashid and others v. The State PLD 1991 Kar. 200, my brother Mr. Qaiser Ahmad Hamidi, J. Held at page 202 as under:-- "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.
23. 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."
24. ' He also examined the provisions of section 95 of the Motor Vehicles Ordinance. At page 205 he held as follows:- "It is thus evident that the object for which the vehicle is seized is that inspection of the vehicle by the Examiner appointed by the Government in this behalf. 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."
25. ' We respectfully agree with the reasoning upon which the impugned orders were set aside.
26. We are of the opinion that leaving the bus in custody of the police will not serve any purpose and the petitioner No,2 cannot be deprived of his bus as the same is not a crime weapon. The provisions of section 95 of the Motor Vehicles Ordinance are mandatory and the respondents have no power, authority or jurisdiction to keep a vehicle involved in an accident in custody beyond 48 hours of inspection. It is admitted position that the bus in question was examined by the Motor Vehicle Inspector on 30-10-1992. The withholding custody of the bus in question beyond 48 hours is violative of the provisions of section 95 of the Ordinance.
27. ' In the result, the constitution petition is allowed. The action of the respondent No,2 is without lawful authority. The respondent No,2 is directed to E release the bus in question. In the circumstances of the case, the parties are directed to bear their own costs.
28. ' The above are the reasons for the short order, dated 16-11-1992 allowing the petition on conclusion of the arguments.