S.H.O. Pezu, then Tehsil Lakki Marwat, on 12-7-1990 was busy conducting checking at Check Post Wandah Banochi when he took into possession a Datsun Pick-up of white colour from driver Muhammad Din son of Awal Khan because there were no documents with him. The same was taken under section 523/550, Cr.P.C. And parked in the Police Station. The driver was arrested under section 54, Cr.P.C.
2. Seven days thereafter, on 19-7-1990, one Nawab Khan son of Aman Khan Wazir of Wana applied before Ilaqa Magistrate for handing him over the possession of the vehicle which was on the same day handed him over subject to furnishing bail bond in a sum of rupees two lacs with two sureties.
It was also ordered that the vehicle shall be produced as and when required by the local police.
Nawab Khan disappeared with the vehicle and as late as on 29-3-1992, the prosecution Branch of Lakki District filed a revision against the order dated 20-12-1993 of Ilaqa Magistrate which he had essentially passed under section 523, Cr.P.C.
3. The learned Additional Sessions Judge, Lakki Marwat proceeded with the petition, also requisitioned the vehicle but it was never produced and thus he separately proceeded against Sher A.I Khan and Naimatullah Khan, the sureties, under section 514, Cr.P.C. After having forfeited the bail bonds. Vide order, dated 20-12-1993 he set aside the original order dated 19-7-1990 and through a separate order of even date he directed that the entire amount of Rs.2 lacs be recovered from the sureties as amount of penalty. Sher A.I Khan and Niamatullah Khan the sureties have challenged the order, dated 20-12-1993 passed by the learned Sessions Judge, Lakki Marwat under section 514, Cr.P.C. Through the instant revision petition which also is prayed to be taken under section 561-A, Cr.P.C.
4. A perusal of entire record would suggest that every one in his given capacity has tried to create as much of confusion as it could possibly be done. Nawab Khan was never consistent about his parentage because in an application dated 7-4-1993 before Political Agent he has given it as Aman Khan while in the application dated 19-7-1990 before the Ilaqa Magistrate he has written it as Ahmand Khan. Still, it is not known as to why the learned Magistrate handed the vehicle over to Nawab Khan under section 523, Cr.P.C. When he was neither an owner nor he claimed to be so in the petition nor was he the person from the last possession of whom the vehicle was taken by the police. The learned Magistrate has utterly failed to apply his mind to the facts of the case as well as the law on the subject in spite of the fact that the S.H.O. Pezu had given a detailed factual note on the application. It appears as if the learned Magistrate has been waiting for Nawab Khan anxiously.
5. The police also did not fail in performing its usual negligent role by not producing the vehicle forthwith before the Ilaqa Magistrate who, in turn, was the authority under the law to dispose of the recovered property. The Pick--up was parked in the police station and the matter was brought to the notice of Magistrate only when Nawab Khan arrived. They also probably waited for Nawab Khan. The procedure adopted is highly illegal because seizure of such like property in question which is alleged or suspected to have been stolen, or found under circumstances which create suspicion of the commission of any offence is bound to be forthwith reported to a Magistrate. A delay of seven days is rather mala fide. Anyhow, when once it came to the notice of Magistrate, his reactions were rather incompetent and hasty because he had given the vehicle to a person who was completely stranger for all legal intents and purposes. In these circumstances, the order, dated 20-12-1993 of the learned Sessions Judge setting aside the order dated 19-7-1990 of EA.C.
Lakki Marwat was quite legal, with the exception, of course, of creating another confusion on his part, little realising if what would happen to the vehicle. It rather helped Nawab Khan who was now even not bound to produce the vehicle before the Magistrate. To pursue for the vehicle is necessary in the present circumstances because various verifications from Sibi Baluchistan have enhanced the doubt qua the stolen nature of the pick-up.
6. In the above circumstances, this Court is of the considered view that although such order is not challenged by any one, it is necessary for this Court to step in under section 561-A, Cr.P.C. So that every benefit should not go to some one who might be considered a thief as a result of thorough investigation in future; and so that, no abuse is made of the process of Court. The order requires some modification which would be adhered to at the end. This is extremely important because on the one hand the learned Sessions Judge has totally absolved Nawab Khan of the liability under the bail bond and, on the other hand has laid its hands off the vehicle which has almost become a forgotten chapter.
7. Coming to the real impugned order passed by the learned Sessions Judge under section 514, Cr.P.C. It may be pointed out with concern that the revision petition by the Prosecution Agency of Lakki Marwat was initially filed directly in the Court of learned Additional Sessions Judge, Lakki Marwat who under section 439-A (2), Cr.P.C. Can exercise all powers of a Sessions Judge only when a case is transferred to him under any general or special order of the Sessions Judge. The learned State Counsel has failed to produce any such general order whereby the learned Additional Sessions Judge was allowed to exercise powers of a Sessions Judge under section 439-A, Cr.P.C. So far as any special order is concerned, there is none on file and the revision petition dated 29-3- 1992 is directly filed in the Court of learned Additional Sessions Judge. This I deemed necessary to point out so far as the law was concerned, whereas, I do not propose to dispose of the present petition on the above grounds of lack of jurisdiction because, as the subsequent circumstances would have it, by the time the same Additional Sessions Judge passed the impugned order on 20- 12-1993, he had become a Sessions Judge after creation of Lakki Marwat as full-fledged District. I believe and hold that the irregularity stands cured.
8. Coming to the merits of the order, dated 20-12-1993 passed under section 514, Cr.P.C., it may be clarified that a surety can be made bound to produce the property etc. Before that Court or forum alone which is specifically mentioned in the bonds executed under the bail order. In the instant case, no doubt, in the bail bonds the petitioners/sureties had undertaken to produce the vehicle before Court or before any other Court but such bond was beyond the sphere covered by the bail order and hence was not under the bond. It would be timely to refer to the original bail order, dated 19-7-1990 where twice the Magistrate had written that the vehicle shall be produced only before the police. In view of such specific direction of the Magistrate in the bail order, the bond executed subsequently binding down the sureties to produce the vehicle before Court or any other Court concerned, was illegal and merely written in routine by the Petition-writer, who, also had something to contribute towards creation of confusion in the instant case. I hold that the bond was not executed under the bail order of the Magistrate and the petitioners were never bound to produce the vehicle before the Court of Session. The amount of penalty of Rs.2 lacs was, therefore, wrongly directed to be recovered from them. I intend to accept the present petition under section 439, Cr.P.C. And also to make certain other observations under section 561-A, Cr.P.C. In order to restore the position into a proper and legal order.
9. Consequently the revision petition of Sher A.I Khan etc. Is accepted, the impugned order of recovery of the amount of bail bond is set aside with the observation that the petitioners can of course be proceeded against under section 514, Cr.P.C. By the Ilaqa Magistrate under whose orders the petitioners failed to produce the vehicle before the police. For such proceedings the petitioners shall appear before the Ilaqa Magistrate, Lakki Marwat on 22-12-1994 who shall strictly proceed in accordance with the procedure laid down in the law.
10. The Ilaqa Magistrate is further directed to proceed against Nawab Khan as well in accordance with law and if so allowed, he be declared as an absconder. If Nawab Khan has a residence in tribal territory, the services of Political Agent concerned may also be availed of.