' The facts as alleged in the petition are that the petitioner was called by the respondent No,1 on 20- 12-1998 at his police station in between 11-00 to 11-30 who directed the petitioner to withdraw his earlier Constitutional Petition bearing No,D-839 of 1998. It is further alleged in the petition that upon refusal of the petitioner he was arrested and his vehicle make Toyota Corolla, Model 1988 bearing registration No,IDG-6985 was impounded. It is stated in the petition that at night of the relevant day he was released upon furnishing surety by one Umer Gul. Petitioner's main grievance is that upon his release the vehicle was misused by the respondent No,1 for next four days and subsequently was deposited in the Nazarat Pool. He has prayed for the following relief:- "It is, therefore, humbly prayed that this Honorable Court may be pleased to pass necessary directions to the respondent No,1 to deliver the peaceful possession of the vehicle bearing its Registration No,IDG6985, Make Toyota Corolla Model 1988 to the petitioner. This Honorable Court may further be pleased to direct the respondent No,2 to register necessary case and make inquiry in connection with the Crime committed by the respondent No,1 for keeping the petitioner in illegal confinement and snatching the vehicle mentioned above from the possession of the petitioner along with any other further/additional relief which this Honourable Court may deem fit and proper in the facts and circumstances of the case."
2. Respondent No,1 has filed his paradise comments. It has not been denied specifically that the petitioner had earlier filed a Constitutional petition wherein the respondent No,1 herein is also one of the respondents. It is Para.5 of the comments filed by the respondent No,1 which gives some detailed reply, otherwise, the entire paradise comments appears to be evasive. Following is the para. 5 of the comments filed by the respondent No,1:-- "(5) That on 21-10-1998 early in the morning police party headed by A.S.-I. Ali Muhammad Sooinro stopped one suspected vehicle bearing registration No,IDG-6985 Make Toyota Corolla color silver driven by Tajamul Khan son of Mohabat Khan who failed to produce the registration documents of the said car. Tajamul Khan son of Mohabat Khan was arrested under section 54 and the car was seized under section 550, Cr.P.C. Vide S.D.E. No,60 at 00-10 hours, dated 21-10-1998. Accordingly, Tajamul Khan son of Mohabat Khan was released on bail and the said vehicle was deposited to the Nazarat Pool vide Road Certificate No,XC of 1998, dated 24-10-1998."
3. I have heard Mr. Muhammad Yaqoob, Advocate for the petitioner and Mr. Muhammad Saleem, A.A.-G. For the respondents. Learned Additional Advocate-General has raised objection to the maintainability of this petition on the ground that there is an alternate and efficacious remedy available to the petitioner under section 523, Cr.P.C. Which has not been availed. Mr. Muhammad Yaqoob has disputed this point and contended that section 523, Cr.P.C. Is not attracted. Section 523, Cr.P.C. Reads as follows:-- "523. Procedure by police upon seizure of property taken under section 51 of stolen.k--- (1) The seizure by any Police Officer or property taken under section 51, or alleged or suspected to have been stolen, or found under circumstances which create suspicion of the commission of any offence, shall be forthwith reported to a Magistrate, who shall make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or, if such person cannot be ascertained, respecting the custody and production of such property.
(2) Procedure where owner of property seized unknown. If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit. If such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation."
4. A perusal of section 523 shows that any Police Officer who seizes any property, under section 51, Cr.P.C. Which is alleged or suspected to have been stolen or found under circumstances which create suspicion of the commission of any offence, :Juch fact shall be reported by him to the Magistrate who shall pass an appropriate order for disposal of such property or delivery thereof to the person entitled to the same. It was argued by Mr. Muhammad Saleem that it is subsection (2) to section 523, Cr.P.C. Which is attracted in the circumstances of the case as the owner of the vehicle is not known. It is not disputed that the papers of the said vehicle stand in the name of one M. Yasin Khan son of Arshad Khan of Islamabad. It is the case of the petitioner that he has purchased this vehicle from said M. Yasin Khan on an open blank transfer letter which were also snatched by the respondent No,1 at the time of his arrest. Since this fact has been denied by the respondent No,1, I would not like to dilate upon the same.
5. Reverting to the provision of section 523(1), the Magistrate is competent to dispose of or deliver any such property which is forwarded to him by the Police Officer, under following three conditions namely:-
(a) If such property is seized during personal search of an accused as provided under section 51, Cr.P.C. Is conducted; or
(b) When it is alleged or suspected to have been stolen; or
(c) If such property is found under circumstances which create suspicion of any offence.
' It was argued by Mr. Muhammad Saleem Samo, A.A.-G. That since the recovery of the vehicle in question was made under section 550, Cr.P.C. It could be returned by the Magistrate as provided under section 523, Cr.P.C. He has referred to the two conditions mentioned in section 550, Cr.P.C.
Which empowers a Police Officer to seize any property. These conditions are same as mentioned in sub-paras. (b) and (c) above. In so far as involvement of the vehicle in any offence is concerned, the respondents were not able to show till this date that the said vehicle was involved in any offence or that it is a stolen property. It was argued by Mr. Saleem Samo that since the original papers were not available with the petitioner, it gives rise to suspicion that the car may have been involved in commission of some offence or may have been a stolen property. It was categorically stated by Mr. Yaqoob that the vehicle was not wanted by the respondents or by any other police official throughout Pakistan in any crime. Respondents were not able to show till this date that any other person has lodged any claim for this property. It was stated by Mr. Saleem Samo on the instructions of the respondents that they are still investigating the .Title of this property from Motor Vehicle Department, Rawalpindi. A suspicion is created when a person is not able to disclose his identity properly or in the case of a vehicle, he is not in a position to disclose ownership of the same. What was the material before the respondents at the time of impounding the vehicle in question which could give rise to suspicion, has not been placed either with parawise comments or with any counter-affidavit or even today by producing any material. While considering these circumstances one cannot ignore the facts leading to filing of an earlier Constitutional Petition bearing No,D-839 of 1998 Tajamul Khan Bangash v. Province of Sindh and 8 others. The said petition was filed under Article 199 of the Constitution, 1973, on 17-6-1998 wherein respondent No,1 (in this petition) is impleaded as respondent No,7. This fact has been mentioned in para.5 of the instant petition to which no specific denial has been made by the respondent No,1 in his paradise comments. On 24-6-1998, D.S.P. Gulzar-e-Hijri and S.H.O. Police Station Gulzar Hijri appeared before a Division Bench in that Constitutional petition and it was in the knowledge of respondent No,1 of the instant petition on the day (20-12-t998) when the vehicle c in question was impounded and the petitioner was arrested, that such a petition has been filed against him alleging harassment and violation of the fundamental rights of the petitioner. The allegations of the petitioner that he was called by the respondent No,1 in his police station and was threatened to withdraw Constitutional Petition No,839 of 1998 if seen in light of the fact that the arrest of petitioner was shown at the Police Station Gulzar-e-Hijri and the vehicle of the petitioner was allegedly recovered by police party gives substantial weight to the submissions of the petitioner that the acts of the respondents in the instant proceedings could not be termed anything else but L' mala fide and ill-will. It is pertinent to note that the police officials have not filed any material, such as copies of station diaries, to substantiate that the petitioner was estopped during routine checking and later on was brought to the police station.
6. There were serious allegations against the respondent No,2, namely, S.H.O., Gulzar-e-Hijri, Police Station, Karachi in the earlier Constitutional petition (C.P. No,D-839 of 1998) that he, in connivance with other respondents of that petition.: attempted to deprive the present petitioner of his immovable property. An interim injunction was also granted in favors of petitioners restraining the respondents from unlawfully dispossessing him from the immovable property involved in that petition which was still pending when respondent No,2 filed his paradise comments denying allegations of the petitioner. In the above said backdrop of the case, respondent No,1 should have acted more cautiously and vigilantly while dealing with the petitioner in the alleged circumstances.
The petitioner was deprived of his liberty and property in an unlawful manner. Article 4 of the Constitution, 1973 provides that every citizen has an inalienable right to enjoy the protection of law and to be treated in accordance with law. It further provides that no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law.
Article 260 of the Constitution has defined the term "property" as inclusive of any right, title or interest in the movable and immovable property which will include any right and interest in a motor vehicle as of instant case. Article 23 extends right to every citizen to acquire, hold and dispose of property in any part of Pakistan, subject to the Constitution and any reasonable restrictions imposed by law in the public interest. Article 24 provides further protection to this fundamental right and guarantees that no person shall be deprived of his property save in accordance with law. Fundamental rights of a citizen whenever violated and if brought to the notice of the High Court, should be investigated and an appropriate order is to be passed while exercising jurisdiction under Article 199 of the Constitution. In the case of Government of Sindh and 4 others v. Raeesa Farooq and 4 others 1994 SCMR 1283 at 1291, it was observed by Honorable Supreme Court that whenever a complaint of violation of fundamental right is made to a High Court, it must step into investigate such facts and to pass order as may be found just, legal and equitable taking into consideration the facts and circus Ices of each case. These are the standards which must prevail before the Courts while dealing with a Constitutional petition under Article 199 whenever encountered with similar facts as of the instant petition.
7. In so far as the objection about invoking of the Constitutional jurisdiction without resorting to section 523, Cr.P.C. Is concerned, I would like to observe that it is settled law that the rule about invoking the Constitutional jurisdiction only after exhausting other legal remedies, is a rule of convenience and discretion by which the Courts regulates its proceedings and that it is not a rule of law. (See Mst. Kulsoom Maleek and others v. Assistant Commissioner and others 1996 SCMR 710 at 725 and Haideri Ship Breaking Industries Ltd. v. Sindh Government and others 1988 MLD 1863 at 1875. I am also of the view that in the circumstances of this petition, the petitioner was not legally entitled to invoke section 523, Cr.P.C. And, therefore, it cannot be said that the petitioner has an alternate remedy. A respondent who has not acted with all fairness and within the four corners of law, is not entitled to raise such plea with the intention to perpetuate his illegalities on mere technical grounds. This overrules the objection raised by Mr. Muhammad Saleem Samo, A.A.-G., Sindh, to the maintainability of the petition on the ground of availability of an alternate remedy.
8. Mr. Muhammad Yaqoob has referred to the cases Nasir Usman v. Ashiq Ali and 5 others 1992 PCr.LJ 306, Muhammad Arif v. S.H.O. City Police Depalpur and 5 others PLD 1994 Lah. 521, M. Salim Khan v. The State and 3 others 1991 PCr.LJ 285, Muhammad Ramzan v. Station House Officer, Police Station Baghbanpura, Lahore and 2 others 1995 PCr.LJ 1947, Khalid Saleem v. Muhammad Jameel alias Billa and 6 others 1996 SCMR 1544. In the last cited case a Full Bench of Honorable Supreme Court has considered the provisions of sections 516-A and 517, Cr.P.C. In so far as section 516-A, Cr.P.C. Is concerned, it will attract when a criminal case is pending and in regard to those properties, for which it is alleged that some offence was committed with that property. Section 517, Cr.P.C. Is attracted when the inquiry or the trial is completed before the trial Court. This provision is also not attracted in this case. The other relevant section is 523, Cr.P.C. Which again is not attracted as it does not fulfill the three conditions as noted above. Section 550, Cr.P.C. Makes obligatory on the police to report seizure of the property immediately to a Magistrate which was not done in the instant case. This makes I the act of seizure by police as illegal. I am fortified in my view by the case Fazal v. In charge C.I.A. 1976 PCr.LJ 30 and Muhammad Ramzan (supra). Accordingly, I am not impressed by the arguments that the petitioner has an alternate and efficacious remedy. In the instant case, it is claimed in the petition that the vehicle involved was purchased by the petitioner.
It is also admitted that despite lapse of more than three months nobody has come forward before the respondents claiming the vehicle involved. In these circumstances, the petitioner is entitled to custody of the motor vehicle as held by this Court in the case Nasir Usman (supra) and Zardullah Khan v. The State PLD 1971 Kar.
906. The acts of the respondent No,1 in depriving the petitioner of his vehicle by abusing the process of law, amount to violation of the fundamental rights guaranteed to the petitioner under Articles 23 and 24 of the Constitution, 1913 and for its violation this petition is maintainable.
9. As a result of the above discussion, this petition is disposed of with the following directions:--
(a) Nazir, (sic) shall deliver the vehicle mentioned by the petitioner on execution of a bank guarantee or on submission of solvent surety worth Rs,4,00,000 (Rupees four lacs only) to the satisfaction of the Nazir of this Court.
(b) Respondent No,2, D.I.-G. Police, Karachi Range, Karachi is directed to conduct an inquiry into the allegations made in the body of this petition against respondent No,1 as well as in the light of the observation of this Court made hereinabove and to submit his report within four weeks after receipt of intimation of this order, to the Registrar of this Court.
(c) In case, the above report discloses any such act which constitute misconduct on the part of respondent No,1 and/or on the part of any other officer, then the Inspector-General Police, Sindh, shall institute proceedings against such officer(s) under intimation to the Registrar of this Court.