Shortly narrated facts of the case are that Motorcar bearing registration No,B-2631/Kohat was seized by the Custom Staff as a non-custom paid vehicle under the provisions of Customs Act, 1969, after the same was taken into possession by police'of Police Station Bannu city. The said vehicle was confiscated under the orders of Additional Collector Customs Peshawar, with an option extended to the rightful owner (Qamar Zaman) to get the same released on payment of duty/taxes leviable thereupon under the law. The option given to the original owner (Qamar Zaman) was accepted by him and after doing the needful under the law, the said motorcar became a custom paid vehicle. The said vehicle was purchased by one Mazhar Hussain son of Muhammad Iqbal from the original owner (Qamar Zaman) vide agreement deed dated 26-4-2002 and thereafter present petitioner purchased the same from the second owner vide deed dated 10- 8-2002. The said vehicle was taken into possession by the local police pursuant to report vide Mad No,7 dated 18-7-2002 for the purpose of inquiry under section 156(3), Cr.P.C. The Investigating Officer sent the documents to the office of Motor Registering Authority Kohat wherefrom report was received terming the registration slip etc as fake and fabricated.
2. Mehtar Yousaf, petitioner, applied for Superdari of motorcar in question but the request was turned 'down by Judicial Magistrate vide order dated 5-6-2003. A revision petition filed against the aforesaid order, failed vide order dated 1-7-2003 passed by Sessions Judge, Lakki. The petitioner has approached this Court seeking quashment of the impugned orders and for a direction that the car be given to him on Superdari.
3. Mr.Gauhar Zaman Khan Kundi, Advocate for the petitioner contended inter-alia that,
(a) petitioner being owner/purchaser and last possessee of the said motorcar was legally entitled to the grant of custody under the law, moreso, in view of the fact that the vehicle was duly custom paid one and there is nothing on record that it was a stolen property.
(b) that there is no rival claimant either to the ownership or custody of said vehicle,
(c) that previous order dated 24-4-2003 of Judicial Magistrate, Lakki could not be interpreted to be one refusing the custody of vehicle; at the most it was an order issuing direction to I.0 for getting the vehicle/documents verified and to tender report in this behalf at the earliest. Thus, observations contained in impugned order dated 5-6-2003 in this context especially with regard to the dismissal of previous application are grossly unwarranted, and
(d) that the original registration slip and -original transfer order in respect of said vehicle duly bearing the seal and signature of Motor Registering Authority Kohat are in custody of the present petitioner and these were never taken into possession by the police. Concluding the arguments, learned counsel also shown an apprehension that there are ample chances regarding change of engine or extra parts of the car at the hands of the police as the property is lying at the Police Station without any protection. The owner will sustain irreparable loss if the application prayed for is not granted. In support of his pleas, he placed reliance on Malik Muhammad Rafiquee, v. Tehseen Qureshi (1986 SCM R 1536), Mst. Khadija Begum. v. Sessions Judge, Sahiwal (1986 P.Cr.L.J 954), Muhammad Ramzan. v. The State (NLR 1990 Cr.LJ 72) and Humayun Azam. v. Ch.Sadiq, Inspector/SHO, Police Station Kunjah, District Gujrat and 3 others (1999 M LD 1676 Lahore).
4. Conversely, S. Abid Hussain Bukhari, Advocate for the State supporting the impugned orders, maintained that section 516-A was designed to empower the courts to pass orders for the temporary custody of property produced before them pending final decision of the case with which the property was concerned. The section uses the word 'may' and not the word 'shall' and consequently it would appear that it is discretionary for the Courts to pass an order for the interim custody of the property and they are not bound to pass such an order. He further contended that an order under section 516-A being a judicial order, has to be passed after due consideration of all the relevant circumstances of the case, and cannot be capricious or arbitrary, but this does not mean that the Courts are bound in all cases to pass an order for the interim custody of the property. He placed reliance on Arbab Khan v. The State (1990 PCr.LJ 649).
5. Having heard the arguments of learned counsel for the parties, I find myself in agreement with learned counsel for the petitioner that the impugned orders of the Courts below are illegal, without jurisdiction and contrary to the principles of justice and cannot be allowed to remain intact.
6. 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. 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. It would have, therefore, been just and legal to accept his application in this respect.
7. The criminal Courts are not competent to investigate into the question of title as their jurisdiction is confined under section 516-A, Cr.P.0 or for that matter under section 517, Cr.P.0 to the determination of the entitlement of possession and not title to the property; the question of ownership is to be determined by a competent civil Court.
8. The car is at the Police Station in an open space without any shadow or cover and will go bad and rusty if the same is allowed to be at the Police Station for an indefinite period. In this background, it would be in the fitness of things if the property is restored to its original owner with the direction that he should produce the property in Court as and when required by the trial Court.
In the circumstances, I am of the opinion that the car bearing registration No,B-2631/Kohat be restored to petitioner Mehtar Yousaf provided he furnishes surety in the sum of Rupees five lacs with two sureties each in the like amount to the satisfaction of Additional Registrar of this Court. The petitioner is directed to produce the car in Court as and when it is directed for the purpose of investigation/trial. With this observation, this petition stands disposed off.