Quashment and Car Custody in one Judgment

PLJ 2010 Cr.C . ( Peshawar ) 241 Present: Abdul Aziz Kundi , J. M/s. ORIX LEASING PAKISTAN LTD., through Branch Manager, Peshawar --Petitioner versus STATE and 2 others--Respondents Crl . Misc. No. (Q) 83 of 2009, decided on 2.10.2009. Criminal Procedure Code, 1898 (V of 1898)-- ----S. 561-A--Inherent powers of High Court-- Quashment petition--Application for custody of car--Petitioner after having failed to get the custody of the vehicle in question from the Courts below, have filed instant petition for the same relief, contending that petitioner company had provided finance facility in shape of lease of motor car in question, upon the terms and conditions in the lease agreement between petitioner company and the lessee of the vehicle in-question, that lessee had failed to fulfill his obligations under the lease agreement by making timely payments and thus petitioner company, its owner is entitled to custody of the vehicle in question--Held: Petitioners company was admittedly the owner of the car in question and there was no rival claimant to its custody--Car in question was no more required for investigating agency and its being parked at any place without being put to use would certainly deteriorate its condition--Petition accepted and ordered the custody of car be handed over to the petitioner company. [Pp. 243 & 245] A, B & C Mr. Umar Farooq , Advocate for Petitioner. Mr. Zahid Yousaf Qureshi , A.A.G. for State. Muhammad Taif Khan, Advocate for Respondent No. 2. Date of hearing: 2.10.2009. Judgment On 27.7.2006 at 1700 hours Pir Wali Shah, ASI of Police Station Daudzai , Peshawar during `Naka Bandi ' at Mamoo Khatki Check Post stopped Motor Car bearing Registration No. B-4106 Kohat , driven by one Saif-ur-Rehman son of Hakim Khan, resident of Shabqadar and alongwith him was seated in the front seat a man namely Iqbal son of Saifullah of Shabqadar Mirzai . On search four fake currency notes of Rs.500/- denomination each Bearing No. EE-4588203, four other currency notes of the same denomination each Bearing No. EE-4588202 and four other currency notes of the same denomination each Bearing No. EE-4588201, two identity cards and a driving license bearing the photograph of Iqbal aforesaid, were recovered from Iqbal while the driving license and the two identity cards recovered were in the name of Kashif Ali son of Abbas Ali, resident of House No. 528, Street No. 10, Sector C-10/1 Islamabad with permanent address of Hoti Mardan . Similarly from a black colour shoping bag beneath the driver seat occupied by Saif-ur-Rehman , five notes of Rs.1000/- denomination each Bearing No. EK-9920795, EK 9920792, EK 9920791, EK 9920701 and EK 9920707, were recovered. All the aforesaid items were taken into possession. The two persons aforestated alongwith the Motor Car were taken into custody by the said ASI on duty. Accordingly, on the basis of ` Murasila ' FIR No. 396 was registered on 27.7.2006 at 18.15 hours at Police Station, Daudzai Peshawar. 2. Initially, Saif-ur-Rehman accused aforestated , who is Respondent No. 3 in the present petition, had moved an application for custody of the car in question and having failed before the lower Courts, he ultimately approached this Court through a petition under Section 561-A Cr.P.C , which Quashment Petition No. 20/2007 was ultimately dismissed for non-prosecution on 9.6.2008. The claim of the said Saif-ur-Rehman , Respondent No. 3 in the said petition was that he has purchased the said vehicle from Habibullah Jan, Respondent No. 2 in this petition and being a bona fide purchaser and last possessor was entitled to its custody under Section 516-A Cr.P.C . Not only that his petition was dismissed for non-prosecution way back on 9.6.2008 but even in the trial Court in case FIR aforestated , proceedings under Section 512 Cr.P.C . were initiated against him by the Court seized of the trial and he was declared proclaimed offender and perpetual warrants of arrest were issued against him, as is reported by concerned DFC on the notice issued to Saif-ur-Rehman aforestated for appearance for today in this Court and thus he was not in attendance today during the hearing of the case nor was represented by anybody. 3. M/s. Orix Leasing Pakistan Limited having its Head Office at Karachi and a branch office in the State Life Building, The Mall Peshawar, after having failed to get the custody of the vehicle in question from the Courts below, have filed this petition for the same relief, contending that petitioner company had provided finance facility in the shape of lease of Motor Car in question being Toyota Corolla XLI Model 2005, bearing Registration No. 4106 Kohat NWFP, Engine No. X223858 Chassis No. NZE 120-6021780, upon the terms and conditions, as laid down in the lease agreement dated 29.4.2006 between the petitioner company, and Habibullah Jan, the lessee of the vehicle in question; that Habibullah Jan has failed to fulfill his obligations under the lease agreement by making timely payments and thus petitioner company, its owner is entitled to custody of the vehicle in question. 4. The learned Additional Advocate General Mr.Zahid Yousaf raised a preliminary objection and contended that quashment petition under Section 561-A Cr.P.C . is not competent against the revisional orders of the learned Additional Sessions Judge, Peshawar . He placed reliance on the case of Sarwar Ali vs. The State (1983 P.Cr . LJ 329) and Raja Abdul Majid vs. The State and another (PLD 1997 Karachi 358) and contended that without going into merits of the case the quashment petition be dismissed. The question of maintainability of petition under Section 561-A Cr.P.C . against the revisional order of the Sessions/Additional Sessions Judge came up before the Hon'ble apex Court in the case of Muhammad Shafiq and others vs. Abdul Hayee and others (1987 SCMR 1371), where their Lordships on pages 1377-1378 held as under:-- "The jurisdictional requirements for the exercise of powers under Section 561-A, Cr.P.C . are-- ( i ) To give effect to any order under the Criminal Procedure Code. (ii) To prevent abuse of process of any Court. (iii) To secure the ends of justice. Such a power cannot be exercised against the express language of the statute and it only preserves what is possessed or is inherent in the Court itself. The revisional power certainly goes beyond insofar as the propriety as is distinguished from the mere legality can also be examined therein. The powers possessed by the Courts under Sections 435/430 Cr.P.C . do not impinge, curtail, or limit in any manner whatsoever the powers under Section 561-A, Cr.P.C . "(underlining is mine) 5. The same question came up before a full bench of the apex Court in Syed Munawar Ali Zaidi vs. Mst . Qaiser Jehan and another (PLD 1982 SC 406) where their Lordhsips held that the High Court would exercise its powers under Section 561-A Cr.P.C . and interfere when it was specified that in the appreciation of evidence by the lower Courts gross mis -carriage of justice had taken place amounting to abuse of process of the Court or interference was necessary to secure the ends of justice. ( underlining is mine) This being the legal position settled by the apex Court, the preliminary objection raised by the learned Additional Advocate General is repelled. 6. On merits, learned counsel for the petitioner submitted that the petitioner company is the owner of the car in question and there is no other rival claimant to its custody, the one Saif-ur-Rehman already having allowed his petition to be dismissed for non-prosecution and himself gone into hiding to avoid trial of the main offence under Sections 489-B.C 419/420 PPC of FIR No. 396 dated 27.7.2006 and thus prayed for custody of the vehicle in question. 7. Mr. Muhammad Taif Khan, Advocate counsel for Respondent No. 2 submitted that while mis -using the name of Habibullah Jan, the financial facility for getting car in question on lease was in fact availed by one Meraj in the name of his client and that his client i.e. Respondent No. 2 totally disowns the car or availing of the financial facility in that respect; that dispute with regard to the recovery of the amount of financial facility is pending before Banking Court between the petitioner company and Habibullah Jan, Respondent No. 2, and the same would be decided on its own merits irrespective of the present case. He accordingly stated to have no objection if the car is given on custody to the petitioner company. 8. In support of his contention, learned counsel for the petitioner placed reliance on a case reported as " Askari Leasing Limited through Branch Manager vs. The State reported as 2007 P.Cr.LJ 755," where the learned Division Bench of the Lahore High Court dealing with a case of like nature held as under:-- "(a) Criminal Procedure Code (V of 1898)-- ----Ss. 516-A and 439--Control of Narcotic Substances Act (XXV of 1997), S. 9(c)--" Superdari " of the vehicle refused by Sessions Court to the petitioners--Validity--Vehicle admittedly vested in the petitioner--Company which had been leased out to the accused and from which offending narcotic had been recovered and the same was taken over by the police--No allegation was available on record that the petitioner--Company was aware of the said user of the vehicle leased out by it to the accused as a financial institution--Even no suspicion had been expressed on the record against any officer of the petitioner--Company in this behalf--No investigation had been conducted on such lines in the case--Petitioner who was admittedly the owner of the vehicle, thus, was entitled to its release on " Superdari "--Impugned order of Sessions Court was set aside accordingly and the vehicle was ordered to be released to the petitioner on " Superdari "-Revision petition was consequently accepted, [pp. 757, 7581 A, D&E]." 9. The petitioner company is admittedly the owner of the car in question and there is no rival claimant to its custody. The car in question is no more required for Investigating Agency and its being parked at any place without being put to use would certainly deteriorate its condition. Thus on the acceptance of this petition, I order its custody be handed over to the petitioner company provided it furnishes bail bonds in the sum of rupees five lac with two sureties each in the like amount to the satisfaction of trial Court and undertakes to produce it as and when it is so directed by any Court of law and further that pending the final disposal of the criminal case it shall not be disposed of and be maintained properly. (A.S.) Petition accepted.