2024 CCJ 12

Other citations: Original Judgment = 2024 PCrLJ 113

[Islamabad High Court]

Before Miangul Hassan Aurangzeb and Arbab Muhammad Tahir, JJ

Sheikh Rasheed Ahmed—Appellant

versus

SHO Police Station Kohsar, Islamabad and others—Respondents

Intra Court Appeal No.236 of 2023, heard on 30^th August, 2023.

HEADNOTES

(a)   Constitution of Pakistan —

— Art. 199 — Constitutional jurisdiction — Alternate remedy — Scope — Availability of alternate remedy is not an absolute bar for availing the remedy before High 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 mala fide, perverse, passed without jurisdiction, unjust and oppressive. [Para. No. 12]

FIA through Director General, FIA and others v. Syed Hamid Ali Shah and others [PLD 2023 SC 265] relied.

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] referred.

(b)   Constitution of Pakistan —

— Art. 199 — Constitutional jurisdiction — Alternate remedy — Scope — Illegal and unlawful acts of the public functionaries cannot be allowed to perpetuate merely on the ground of availability of alternative remedies. [Para. No. 15]

(c)   Criminal trial —

— Case property — Meaning — 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. [Para. No. 10]

(d)   Criminal trial —

Sardar Abdul Raziq Khan, Advocate, Irfan Javed Abbasi, Advocate, Sh. Moazin Rashid, Advocate, Sardar Shahbaz Khan, Advocate, Umair Shafiq Mughal, Advocate for appellant.

Hazrat Younus, State Counsel for Respondents.

Tahir Kazmi, Head Law Officer for ICT Police.

Shafqat Faiz, SHO P.S. Kohsar.

Talha ASI/I.O. with record.

ORDER

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 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.

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 Incharge 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 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 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 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 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 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 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.

Petition allowed