Form No: HCJD/C-121
ORDER SHEET
IN THE ISLAMABAD HIGH COURT, ISLAMABAD
(JUDICIAL DEPARTMENT)
ICA No.236-2023
Sheikh Rasheed Ahmed
Versus
SHO Police Station Kohsar, Islamabad & others
Appellant by : Sardar Abdul Raziq Khan, Advocate.
Mr Irfan Javed Abbasi, Advocate.
Sh. Moazin Rashid, Advocate.
Sardar Shahbaz Khan, Advocate.
Mr Umair Shafiq Mughal, Advocate.
Respondents by : Mr Hazrat Younus, State Counsel.
Mr Tahir Kazmi, Head Law Officer, for ICT
Police.
Mr Shafqat Faiz, SHO P.S. Kohsar.
Mr Talha ASI/I.O. with record.
Date of Hearing : 30.08.2023.
Arbab Muhammad Tahir, J.- The appellant, through
the instant Intra Court Appeal, has impugned order, dated
03.08.2023, passed by the learned Judge in Chambers whereby
Writ Petition No.236/2023 filed by the appellant was dismissed.
2. Succinctly, the facts are that on 31.05.2023 at about
03:00 a.m., officials of Police Station Kohsar raided the house of
the appellant for his arrest in FIR No.376, dated 10.05.2023,
registered under sections 109, 147, 149, 188, 186, 353, 341
PPC at Police Station Kohsar, Islamabad. The appellant was
nominated pursuant to supplementary statement of the
complainant recorded on 28.05.2023 for an offence under
section 109 PPC in the said criminal case. The appellant was not
found at his residence during the raid, however, his two bullet
proof vehicles i.e. Toyota Lexus Land Cruiser bearing
registration No.BD-0414 and Toyota V8 Land Cruiser bearing
registration No.BK-5299 (hereinafter the “Vehicles”) were
seized under section 550 Cr.P.C. The appellant filed application
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for interim custody of the said Vehicles, which was allowed by
the learned Judicial Magistrate Sec-30, Islamabad (West) vide
order, dated 19.06.2023. The Vehicles were ordered to be
released, subject to surety bonds, “to the petitioner after proper
identification”. After submission of surety bonds, the incharge
Police Station Kohsar refused to hand over the Vehicles on the
ground that the appellant was not present in person. The
appellant filed Crl. Org. No.182/2023 before this Court, which
was disposed-of vide order, dated 07.07.2023 with the direction
to the appellant to approach the court of learned Judicial
Magistrate. The appellant then filed contempt petition against
the SHO P.S. Kohsar, however, the same was disposed-of by the
learned Judicial Magistrate vide order, dated 10.07.2023. The
revision petition filed against order, dated 10.07.2023 was
allowed by the learned Additional Sessions Judge vide order,
dated 18.07.2023, by remanding the matter to the learned
Judicial Magistrate with the direction to pass an order after
hearing the parties. The learned Judicial Magistrate heard the
parties and again dismissed the petition vide order, dated
25.07.2023, with the observation that the appellant may
approach the SHO P.S. Kohsar for custody of his Vehicles.
The appellant invoked the constitutional jurisdiction
of this Court by way of filing W.P. No.2363/2023 with the prayer
that the seizure of his Vehicles by the Incharge Police Station
Kohsar under section 550 Cr.P.C. be declared as illegal,
unlawful, void-ab-initio, corum non-judice and without lawful
authority. During proceedings of the said writ petition, the
learned Single Judge was apprised that the appellant is avoiding
his arrest and thus not entitled to the protection of law,
including the relief claimed in the writ petition. The learned
Single Judge, therefore, vide the impugned order, dated
03.08.2023, dismissed the writ petition filed by the appellant,
hence this appeal.
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3. The learned counsel for the appellant has argued
that; the respondents admit that the appellant was not present
at the time of commission of offence i.e. protest; the FIR was
registered on 10.05.2023, whereas, the appellant was
nominated on 28.05.2023 after lapse of 18 days; the
nomination of the appellant in the FIR was pursuant to a
supplementary statement; the appellant was nominated for an
offence under section 109 PPC; the Vehicles were never used in
the commission of offence as the appellant was never present at
the spot during the alleged protest; the involvement of the
appellant in the FIR is based on malafide; the Vehicles were
unlawfully seized so as to pressurize the appellant to surrender
before the respondent; the appellant is active politician and was
opponent of political party which was in Government at the time
when the FIR was registered; the seizure of the Vehicles in the
absence of any allegation of its use in the commission of offence
is unlawful; there is no explanation as to who the Vehicles were
used during the commission of offence; the appellant has not
yet been declared as proclaimed offender; no proceedings under
sections 87 & 88 of Cr.P.C. have yet been initiated against the
appellant; seizure of the Vehicles in the circumstances is against
the principles and law laid down by the superior courts; the
respondents have neither objected on the authority of the
appellant to file the instant appeal before this Court nor had
objected as such before the learned Judicial Magistrate; the acts
and omissions of the police officials are liable to be declared
unlawful and void.
4. Conversely, the learned State Counsel has argued
that; the Vehicles are case property in the FIR; the appellant
has already availed alternate remedies; the learned Judicial
Magistrate has passed an appropriate order; the bail bonds have
also been submitted before the Incharge Police Station; the
learned Judicial Magistrate has ordered the release of Vehicles
after properly identification of the appellant; the appellant is
avoiding his arrest and, therefore, not appearing before the
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Incharege Police Station; the impugned order is well reasoned;
superdari of the Vehicles could only have been ordered during
trial; the trial in the case has not yet commenced; the instant
appeal is liable to be dismissed.
5. Heard. Record perused.
6. The appellant had invoked the jurisdiction of this
Court under Article 199 of the Constitution of the Islamic
Republic of Pakistan, 1973 (hereinafter the “Constitution”) and
had prayed that the seizure of Vehicles under section 550
Cr.P.C. by officials of the Police Station Kohsar be declared
illegal, unlawful, void-ab-initio, corum non judice and without
lawful authority. It is the case of appellant that the FIR was
registered on 10.05.2023, whereas, he was nominated through
a supplementary statement and the role assigned to him is to
the extent of abetment. The appellant is the leader of a political
party and the FIR was registered pursuant to the incident of
blocking of road by protesters in connection with arrest of leader
of another political party. It is the case of police officials that the
protestors had blocked the road at the instigation of the
appellant in violation of the order passed under section 144
Cr.P.C. by the District Magistrate, ICT. In order to secure arrest
of the appellant, on 30.05.2023, the police officials raided his
house. However, the appellant could not be arrested, therefore,
the Incharge Police Station Kohsar, after conducting search of
the house pursuant to a search warrant, seized the Vehicles
under section 550 Cr.P.C. from the premises of his house.
7. In the given facts and circumstances of the case, the
question which has emerged for our consideration is that, when
the appellant was nominated through supplementary statement
in the criminal case for an offence of abetment without even
remotely suggesting his presence at the place of occurrence,
whether the police official could have seized the Vehicles from
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his residence, particularly in the absence of an order under
section 88 Cr.P.C.?
8. It is alleged by the police officials in the
supplementary statement recorded on 28.05.2023 that the
protestors had violated the order of the District Magistrate
promulgated under section 144 of Cr.P.C. pursuant to instigation
of the appellant. It is, therefore, clear that although it is alleged
that the offence was committed pursuant to instigation of the
appellant, neither the appellant was present at the place of
occurrence nor the Vehicles were used in the commission of
offence. From registration of FIR on 10.05.2023, till recording of
supplementary statement on 28.05.2023 and conducting raid at
the house of appellant, there is no mention of the Vehicles or
their use in the commission of offence. The Vehicles were
parked at the house of the appellant at the time of raid on
30.05.2023. However, when the police officials failed to
apprehend the appellant during raid, they decided to take along
the Vehicles for no reason. When the appellant filed an
application for interim custody of the Vehicles, the Incharge
Police Station submitted a report wherein it was mentioned that
the Vehicles were seized under section 550 Cr.P.C. For the sake
of convenience, section 550 Cr.P.C. is reproduced below.-
“550. Powers of police to seize
property suspected to be stolen :
Any police officer may seize any
property which may be alleged or
suspected to have been stolen, or
which may be found under
circumstances which create suspicion
of the commission, of any offence,
such police officer, if subordinate to;
the officer incharge of a police station,
shall forthwith report the seizure to
that officer.”
9. Bare perusal of the above reproduced provision of
law shows that under section 550 Cr.P.C. property can only be
seized subject to the conditions if, it is alleged to have been
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stolen, or found under circumstances which create suspicion of
the commission of any offence. In the instant case, the Vehicles
were parked within the premises of the house of appellant and
the police officials had no information regarding any incident of
theft of like Vehicles. Furthermore, substantial information could
have been collected regarding presence of the Vehicles and their
ownership from the persons present at the residence of the
appellant during raid, so as to avoid any unwarranted exercise
of authority by the police officials.
10. The learned Single Judge was apprised by the
Incharge Police Station Kohsar that initially the vehicles were
seized under section 550 Cr.P.C. but later they were made case
property in FIR No.376/2023 (the one earlier registered against
protestors). The term “case property” means property regarding
which an offence appears to have been committed or which
appears to have been used in the commission of offence. Case
property is preserved by the investigating agency so that it can
be produced before the trial court as evidence/proof of the
commission of crime against the accused person. The trial court
is then competent to decide the question of interim custody of
„case property‟ during pendency of the trial. The expressions
“interim custody”, “interim disposal” and “superdari” are
interchangeably used in criminal procedural law. As highlighted
above, the essential features of the “case property” are that (i)
it should have been used in the commission of offence, (ii) an
offence appears to have been committed in respect of the said
property, (iii) it is the property which was stolen and then
recovered from the accused persons, and (iv) it itself is an
evidence of the commission of offence.
11. There is yet another eventuality where the property
of a person can be attached under section 88 Cr.P.C. by order of
a competent court, if such person has absconded or is
concealing himself from execution of warrants issued against
him and consequently declared as proclaimed offender under
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section 87 Cr.P.C. after following the due process of law. Section
88(3)(a) Cr.P.C. deals with attachment of immoveable property
through seizure. The remedy available to the accused person in
case of attachment of property under section 88 Cr.P.C. is
provided in section 89 Cr.P.C., whereas, in case the property
has been seized as “case property” on the ground that it has
been used for or in relation to commission of offence, then
remedy lies in section 516-A Cr.P.C. For the sake of
convenience, section 516-A Cr.P.C. is reproduced below.-
“516-A. Order for custody and
disposal of property pending trial
in certain cases : When any property
regarding which any offence appears to
have been committed or which appears
to have been used for the commission
of any offence, is produced before any
Criminal Court during any inquiry or
trial, the Court may' make such order
as it thinks fit for the proper custody of
such property pending the conclusion
of the inquiry or trial, and, If the
property is subject to speedy or natural
decay, may, after recording such
evidence as it thinks necessary, order
it to be sold or otherwise disposed of.”
12. The learned State Counsel has argued that as the
Vehicles are case property, therefore, alternate remedies were
available and have already been availed by the appellant;
therefore, the writ petition was not maintainable. The argument
of the learned State Counsel is misconceived for the reason that
availability of alternate remedy is not an absolute bar for
availing the remedy before this Court under Article 199 of the
Constitution, particularly in situations when it deprives a party of
the right to protect its legitimate rights and results in great
hardship on that technical ground, the order of the authority is
challenged on the ground that it was wholly without lawful
authority, it violates fundamental rights, impugned order is
arbitrary, based on malafide, perverse, passed without
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jurisdiction, unjust and oppressive. Reliance is placed on the
cases of “The Murree Brewery Co. Ltd. v. Pakistan through the
Secretary to Government of Pakistan, Works Division and 2
others” [PLD 1971 SC 279], “Farzand Raza Naqvi and 5 others
v. Muhammad Din and others” [2004 SCMR 400], “Dr. Akhtar
Hassan Khan and others v. Federation of Pakistan and others”
[2012 SCMR 455], “Town Committee, Ghakkar Mandi v.
Authority under the Payment of Wages Act Gujranwala and 57
others” [PLD 2002 SC 452] “Chief Engineer, A.E.B. v.
Commissioner for Workman’s Compensation Authority” [2000
PLC (CS) 1082].
13. This Court in writ jurisdiction is competent to
judicially review the acts done by the respondents and pass
appropriate order. The august Supreme Court in the case titled
“FIA through Director General, FIA and others v. Syed Hamid Ali
Shah and others” [PLD 2023 SC 265] has held and observed as
follows.-
“Article 199(1)(a)(ii) of the Constitution
empowers the High Courts to judicially review the
acts done or proceedings taken by the persons
performing functions in connection with the affairs
of the Federation, a Province or a local authority
and if find such acts or proceedings to have been
done or taken without lawful authority, to declare
them to be so and of no legal effect. The
registration of an FIR and the doing of an
investigation are the acts of officers of the police
department (a provincial law enforcement agency)
who perform functions in connection with the
affairs of a Province and are thus amenable to the
jurisdiction of the High Courts under Article
199(1)(a)(ii) of the Constitution. The High Courts
can declare such acts of the police officers, to
have been made without lawful authority and of no
legal effect if they are found to be so and can also
make any appropriate incidental or consequential
order to effectuate its decision, such as quashing
the FIR and investigation proceeding. The acts of
registering the FIR and conducting investigation by
the officers of the FIA, in the present case, are
also subject to said jurisdiction of the High Court,
as they have been done by the officers performing
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functions in connection with the affairs of the
Federation.”
14. In the case in hand, admittedly, the Vehicles were
not used in the commission of offence as the appellant has been
merely nominated through supplementary statement for
allegedly committing the offence of abetment. The FIR
registered on 10.05.2023 and the supplementary statement
recorded on 28.05.2023, are silent regarding presence of the
appellant alongwith the Vehicles at the place of occurrence. The
Incharge Police Station Kohsar, Islamabad appears to have
seized the Vehicles only to pressurize the appellant to surrender
before him. There is no cavil to the proposition that a
proclaimed offender loses some of his legal rights, however, in
the case in hand, the police officials were only interested in
seizing the Vehicles belonging to the accused person/appellant
without initiating the procedure provided under the Code of
Criminal Procedure, 1898. The Incharge Police Station has no
legal authority to discharge his statutory functions while
deviating from the express provisions of law. Perusal of the
record shows that the process under sections 87 and 88 of
Cr.P.C. has not yet been initiated so as to compel the accused
persons to surrender before the lawful process.
15. Public functionaries cannot be allowed to manipulate
the lawful process through deliberate illegal actions and
strangulate the constitutional jurisdiction of this Court under the
garb of availability of alternate remedies and ultimately put the
victims of such illegal actions to face the rigors of cumbersome
legal process before various other forums. Illegal and unlawful
acts of the public functionaries cannot be allowed to perpetuate
merely on the ground of availability of alternative remedies. In
the case in hand, the Incharge Police Station Kohsar was aware
that there is no order of attachment of property of the appellant
under section 88 of Cr.P.C. He was also aware that the property
was not used in the commission of offence, therefore, he initially
seized the same under section 550 Cr.P.C. and later after
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realizing the legal complications, managed to make the Vehicles
as case property and even this action is also not backed by any
valid reason. We, therefore, hold the seizure of the Vehicle by
the Incharge Police Station Kohsar was without lawful authority
and liable to be struck down.
16. For what has been discussed above, we allow the
instant Intra Court Appeal and hold that the Vehicles were
illegally and unlawfully seized by the Incharge Police Station
Kohsar, therefore, it is ordered that the Vehicles be returned to
the premises from where they were seized. The impugned order,
dated 03.08.2023, passed by the learned Single Judge is,
therefore, set aside and the Writ Petition (W.P. No.2363/2023)
filed by the appellant, therefore, stands allowed in the above
terms.
Needless to mention that the observations made in
this order shall not in any manner prejudice the right of fair trial
of the parties before the learned trial court.
(MIANGUL HASSAN AURANGZEB) (ARBAB MUHAMMAD TAHIR)
JUDGE JUDGE
Approved for reporting.
Luqman Khan/*
