ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

C.P.NO.D-1909 OF 2013.

DATE ORDER WITH SIGNATURE OF JUDGE

FOR KATCHA PESHI.

22.10.2013.

Syed Sardar Ali shah Jilani, Advocate for petitioner.

Mr. Muhammed Iqbal Kalhoro, APG.

Through instant Constitutional Petition, petitioner has challenged orders dated 10^th September 2013 and 1^st October 2013, passed by Civil Judge & Judicial Magistrate-IX and Ist Additional Sessions Judge, Hyderabad, respectively.

2. Precisely, relevant facts are that on 21.08.2013, petitioner alongwith his driver was on the way towards Karachi, when reached at Hyderabad, police personnel of A.C.L.C. stopped his vehicle and being suspicious impounded under section 550 Cr.P.C. Petitioner approached Civil Judge & Judicial Magistrate-IX, Hyderabad for release of his car, but such prayer was declined on the plea that though, applicant/petitioner has produced original papers of the said car, but chassis number and engine number are re-punched, therefore, he is not entitled. Thereafter, the petitioner filed Criminal Revision Application before District & Sessions Judge, Hyderabad, same was entrusted to Ist Additional Sessions Judge, Hyderabad and on the same plea, such revision application was also turned down.

3. Learned Counsel for petitioner, inter alia, contends that subject matter vehicle is not involved in any criminal case and police officials with ulterior motive captured the said vehicle and have also attempted to create slightest difference in original chassis and engine numbers with clear motive to deprive the petitioner from the custody of said vehicle. He further contends that petitioner is ready to face any proceedings, if initiated by any department, with regard to the verification of ownership, whereas none has claimed ownership of said vehicle except petitioner; petitioner is paying requisite taxes regularly hence impugned orders are illegal under the law.

4. On the other hand, learned APG, half heartedly opposed the plea taken by applicant.

5. After careful consideration of contentions raised by respective counsel, and examination of available record, it is matter of record that subject matter vehicle is not involved in any case; ownership documents are available with petitioner with updated tax record; petitioner was in last possession; none else has claimed ownership of said vehicle, hence petitioner cannot be deprived from the custody of said vehicle, especially, when it is agitated that impounding of the vehicle at police station, for indefinite period is not justified under these peculiar circumstances. Petitioner has claimed that tampering in the numbers is managed by the police officials, in order to knock out the petitioner in legal proceedings, thus excise department is competent to conduct thorough probe and find out the legal status of said vehicle, needless to mention that any enquiry conducted by department should be after due notice, and hearing of concerned person/official, including petitioner.

6. Keeping in view the given circumstances, both the Courts below were not justified to refuse the superdari of the vehicle in question to the petitioner. The present petition is, therefore allowed, the impugned orders of both the courts below are set aside and the custody of vehicle in question is allowed to the petitioner on superdari subject to furnishing P. R. bond in the sum of Rs.2,00,000/- to the satisfaction of Additional Registrar of this court.

7. However, while parting, it is germane to say that after inquiry, conducted by Excise Department if it is surfaced that said vehicle is same and owned by petitioner, concerned Magistrate will be competent to exercise powers under section 523 Cr.P.C. without being influenced of this order.

Petition allowed.

JUDGE