' Through this writ petition the petitioner has called in question legality of the judgment dated 25-3- 1998 passed by the Additional Sessions Judge, Gujrat whereby a revision petition filed by the petitioner against an order dated 4-3-1998 passed by the Megistrate section 30, Gujrat had been dismissed.
2. The facts on the basis of which this writ petition has been filed disclose a shocking state of affairs, to say the least. The petitioner is a resident of Gujranwala and is running a business of renting out private cars to customers under the authority of a genuine guarantor. On 26-12-1997 the petitioner gave a Toyota Corolla Car No,DNC/4153 to one Javed son of Muhammad Hussain on rent and the same was used by the said Javed from 26-12-1997 to 10-2-1998. On the latter date the car was returned and the due rent was paid to the petitioner. It is stated by the petitioner that on 26-2-1998 when he was travelling from Gujranwala to Lahore on the said car A.S.I. Mehar of Police Post Mangowal, Police Station Kunjah, District Gujrat intercepted him and took the said car in his possession. When the petitioner inquired from the said A.S.I. As to why his car had been taken into possession he was told that the car had been taken into custody under section 550, Cr.P.C. The petitioner produced an open Transfer Letter, Registration Book of the said car and the Computer Checking Slip in respect of that car before the said A.S.I. But to no avail. Aggrieved of that seizure of his car the petitioner applied before the Ilaqa Magistrate, Police Station Kunjah on 28-2-1998 for Superdari of that car. Consequently a report was called for by the Magistrate concerned from the Station House Officer, Police Station Kunjah and a brief report in that respect was submitted on 3- 3-1998 by Muhammad Sharif A.S.I. Of the said Police Station claiming that the car in question had been taken into possession under section 550, Cr.P.C. Dissatisfied with that report the Magistrate ordered for submission of a detailed report in that respect. Subsequently a detailed report was also filed before the Magistrate by Muhammad Sharif A.S.I. Stating that the said car had been taken into possession by the local police as the same had been had been used for commission of an offence under section 382, P.P.C. On 13-1-1998 regarding which 153 had been recorded on 1-3-1998. After receipt of that report the Ilaqa Magistrate dismissed the petitioner's application for Superdari on 4- 3-1998. Aggrieved with that order the petitioner submitted a revision petition before the Court of Session, Gujrat which was entrusted for disposal to an Additional Sessions Judge, Gujrat. Vide order dated 25-3-1998 that said revision petition was also dismissed by the Additional Sessions Judge, Gujrat and the order passed by the Magistrate in this regard was upheld. Hence, the present writ petition.
3. I have heard the learned counsel for the petitioner as well as the learned counsel for the State and have also gone through the entire record attached with this writ petition.
4. It is shocking to notice that the local police has defended the impugned taking possession of the said vehicle on 26-2-1998 on the basis of an F.I.R. Registered on 1-3-1998. It is clear from the record that at the time of taking possession of that car no information had been received by the local police regarding that use of the said car in any specific offence. It was maintained by the police that the car had been taken into possession under section 550, Cr.P.C. But subsequently F.I.R. No,153 recorded on 1-3-1998 was used as a shield for defending the impugned action. It appears that initially the local police had no justifiable basis available for taking the said car into their possession by invoking section 550, Cr.P.C. But subsequently the said F.I.R. Was recorded on 1-3- 1998 for an offence allegedly committed on 13-1-1998 in order to furnish a basis for continued custody of that car. Such a conduct surely smacks of foul play and lack of bona fides on the part of the local police. It is settled law that a mala fide action is an action without jurisdiction.
5. It is also trite law that if a vehicle is used by an offender for going to or running from a place where an offence is committed by him then the vehicle so used by him cannot be said to have been used for the commission of that offence and the same cannot be taken into possession by the police as case property. Reference in this respect may be made to the cases of Syed Razi Shah v. The State (1971 PCr.LJ 19), Mst. Khadija Begum v. Sessions Judge, Sahiwal (1986 PCr.LJ 945), Muhammad Ramzan v. The Sate (NLR 1990 Crl. Law M.1542 4.9.8 Judgments 72), Syed Bahawal Shah v. The Crown (PLD 1951Baghdad-ulJadeed 57), Sheraz Elahi v. The State (1984 PCr.LJ 1935) and Rv.
Khan and another (KLR 1984 Cr1. Cases 183). There is no denying the fact that the present petitioner is not an accused person in the said F.I.R. No,153 dated 1-3-1998 and the said F.I.R. Alleges that the accused persons named therein had used this particular car only for going to or fleeing from the place of occurrence in that case. Therefore, the enunciation of law in the judgments mentioned above applies with full force to the facts of this case and the car in question could not have been taken into possession by the local police as a case property in this case.
6. Even in the matter of Superdari, the law is quite settled that in case there are no rival claimants for Superdari of a vehicle then the vehicle should ordinarily be given on Superdari to the person from whom it was taken possession. Of. Reference in this respect may be made to the case of Malik Muhammad Rafique v. Tehseen Qureshi (1986 SCMR 1539). In the present case the petitioner is the only person who has claimed Superdari of the said car. It was, admittedly, taken into possession from his custody and control. He is also possessed of an open Transfer Letter, Registration Book and a Computer Checking Slip in respect of the car in question. It would have, therefore, been just and legal to accept his application in this respect. As noticed above the Courts below have failed to follow the law declared on the subject by the Hon'ble Supreme Court and the High Courts. In this view of the matter the impugned judgment dated 25-3-1998 passed by the Additional Sessions Judge Gujrat and the order dated 4-3-1998 passed by the Magistrate Section 30, Gujrat are declared to have been passed without lawful authority and the same are, thus, of no legal effect.
Resultantly, this writ petition is allowed, the impugned judgment and order are set aside and it is directed that the car in question bearing Registration No, DNC/4153 shall be given on Superdari to the petitioner forthwith who shall produce the same before the trial Court if and when called upon to do so during the proceedings of the trial. There shall be no order as to costs.