Tuesday, 10 February 2015

Vehicle Forgery Quashment Judgment

PLJ 2013 Cr.C. (Peshawar) 114
Present: Irshad Qaisar, J.
ARSHAD HAYAT and another--Petitioners
versus
STATE--Respondent
Crl. M. Q.P. No. 116-P of 2012, decided on 18.1.2013.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 561-A--Quashment--Forgery and bogus document of vehicle--Confiscation of vehicle--Alleged crime of forgery could neither be proved against the purchaser nor against the vendor as they were acquitted in the case and no appeal was preferred against their acquittal--Petitioner and his sons were no only the last possessors of the vehicle, they were also the only claimant of its ownership--In the case of movable property possession is the major proof of ownership--Moreover the accused also admitted the owner ship of and sale-deed of the car--Inspite of registration of case in the year 2010 and about three years having been passed no rival claimant of the vehicle has emerged--There was nothing on record to suggest that the vehicle was stolen one--Only allegation against the vehicle was that its chassis number was tempered and registration book was bogus--For such objection a vehicle cannot be confiscated to State when it is proved that the owner was the bonafidepurchaser and he has nothing to do with the tempering of chassis number and preparation of bogus registration book--The mechanism provided in the West Pakistan Motor Vehicles Ordinance 1965 can be followed for rectification of fault related to the vehicle in question on payment of prescribed fees etc.--Confiscation of vehicle in question was not justified in law--Application was accepted and the order of confiscation was hereby quashed subject the condition that the vehicle shall be delivered to the petitioner owner after he gets it properly registered and doing the needful and payment of prescribed fee etc including the custom duty, if any--Thereafter, the valid papers shall be presented before the trial Court and the trial Court after getting satisfied about proper registration of the vehicle deliver it to the petitioners.  [Pp. 116 & 117] A, C & D
Mensrea--
----Principle--It is settled law that when no mensrea is proved against some one, he cannot be penalized in any manner.            [P. 116] B
Mr. Shakeel Khan Gillani, Advocate for Petitioners.
Miss Mamres Gul, Advocate for Respondent.
Date of hearing: 18.1.2013.
Judgment
The petitioners Muhammad Qasim and his son Arshad Hayat have submitted the present petition under Section 561-A, Cr.P.C for the quashment of the order dated 31.03.2012 passed by learned ASJ-III, Swabi, whereby he refused to return Vehicle No. LXN-3628 Chassis No. CE 100-9008835, Engine No. 3780204, Model 1999,colour green to the petitioners.
2.  The brief and relevant facts of the case are that vide D.D. No. 21 dated 10.01.2010 Motor Car No. LXI-3628 has been recovered from the possession of oneHameed Khan son of petitioner Muhammad Qasim by complainant Mushtaq Hussain ASI under Section 523/550, Cr.P.C. being suspected to be stolen one as he could not produce any relevant documents of the car. Inquiry under Section 156(3), Cr.P.C. was conducted qua the car and it was got examined from FSL Peshawar. According to the FSL report, the chassis number of the vehicle was found welded by refitted by chassis plats piece measuring 2« x 1" bearing number CE 100-9008835 and the documents of the vehicle was found bogus and forged as per the report of MRA, Lahor. During the course of investigation accused Sher Zamin and Muhammad Saeed were charged for the commission of offence Sher Zamin admitted the execution of deed dated 21.06.2009 in favour of petitioner MuhammadQasim on behalf of Muhammad Saeed. After the completion of investigation challan was submitted in the Court of Judicial Magistrate Swabi who after the conclusion of trial acquitted the accused where as the motor car in question was confiscated to State vide order dated 23.01.2012. The petitioners being aggrieved upon the confiscation of the vehicle impugned the judgment of trial Court which was dismissed by learned ASJ-III, Swabi vide order dated 31.03.2012, hence the present petition.
3.  Record shows that Hameed khan driver of the car was though arrested under Section 54, Cr.P.C. during inquiry in D.D. No. 21 but neither he nor the present petitioners have been nominated as accused in case FIR No. 242 dated 04.02.2010 under Section 419/420/468/471, PPC of P.S. Swabi, which was registered on the basis of inquiry on D.D No. 21 dated 10.01.2010. The other persons were charged and acquitted. With regard to the vehicle in question the learned trial Court made the following observation "From the record it transpired that the vehicle in question was sold to one Muhammad Qasim son of Muhammad Akbar who for all intents and purposes appears to be its bona fide purchaser".
4.  It is abundantly clear on record that the alleged crime of forgery could neither be proved against the purchaser Muhammad Qasim nor against the vendor as they were acquitted in the case and no appeal was preferred against their acquittal. It is settled law that when no mensrea is proved against some one, he cannot be penalized in any manner. The petitioner Muhammad Qasim and his sons including Hameed are no only the last possessors of the vehicle, they are also the only claimant of its ownership. In the case of movable property possession is the major proof of ownership. Moreover the accused also admitted the owner ship of Muhammad Qasim and sale-deed of the car dated 21.06.2009. Inspite of registration of case in the year 2010 and about three years having been passed no rival claimant of the vehicle has emerged. There is nothing on record to suggest that the vehicle is stolen one. The only allegation against the vehicle are that its chassis number is tempered and registration book is bogus. For such objection a vehicle cannot be confiscated to State when it is proved that the owner is the bona fide purchaser and he has nothing to do with the tempering of chassis number and preparation of bogus registration book. The mechanism provided in the West Pakistan Motor Vehicles Ordinance 1965 can be followed for rectification of fault related to the vehicle in question on payment of prescribed fees etc.
5.  I, therefore, hold that the confiscation of vehicle in question was not justified in law, as discussed above. Therefore the application is accepted and the order of confiscation is hereby quashed subject the condition that the vehicle shall be delivered to the petitioner owner after he gets it properly registered and doing the needful and payment of prescribed fee etc including the custom duty, if any. Thereafter, the valid papers shall be presented before the trial Court and the trial Court after getting satisfied about proper registration of the vehicle deliver it to the petitioners.
 (A.S.)  Application accepted

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