1976 P Cr (PLP)

These three Criminal Revisions bearing Nos. 271, 272 and 273 of 1973, have been filed to assail the one and the same order, dated the 7th of March, 1973, passed by the Magistrate First Class, Lahore under section 523, Cr. P. C., in respect of custody of twenty‑one heads of cattle recovered earlier by the police.

7. It appears that the cattle in question had been seized by the Police on the 5th of February, 1973 from one Muhammad Ashraf alias Bashru. The police did not make any report to the Magistrate as required under section 523, Cr. P. C., nor did any body apply for the custody of the cattle until the 7th of March '1973 on which date respondent Zahur Ahmad, admittedly a nephew of the said Muhammad Ashraf moved an application for custody of the cattle, claiming ownership of all the twenty- one cattle. On this application, the learned Magistrate passed the following order on the same date:‑ "Sapurdari of twenty‑one cattle mentioned in the applications it in possession with the police be released on sapurdari against reasonable sureties on usual terms to the applicant". At the instance of the petitioner, the learned Magistrate made the following order on the 9th of March 1973:‑ "Surety worth rupees two thousand have been given by the applicant which has been accepted. The cattles be delivered to sapurdari with the direction that these will be produced, when required by the Police/Court." It so happened that learned Magistrate, oblivious of the aforesaid orders of his, passed simultaneous orders on the relevant police file awarding custody of six cattle to Sardar Dais Muhammad, the petitioner in Criminal Revision No. 271 of 1973, on 9th March 1973; two cattle to Ahmad (not a party before this Court) on 9th March 1973; four cattle to Manzur Husain the petitioner in Criminal Revision No. 272 of 1973, on 9th March, 1973; and two cattle to Khuda Bakhsh (not a party before this Court) on 12th March, 1973. Zahur Ahmad, having failed to secure the custody of the cattle in pursuance of the orders passed in his favour. again moved the learned Magistrate who by his order dated 16th March 1973 expressed his dissatisfaction with the police for their no licence in not reporting the seizure of the cattle to the Court and for having obtained on their file the orders of custody, dated 9th March 1973 and 12th March 1973, without clarifying that an order had already been passed on 7th March 1973, in respect of the same cattle. He, however expressed his inability to review the orders made on the police File on 9th and 12th March 1973. Aggrieved, Zahur Ahmad moved Criminal Revision No. 221 of 1973 and succeeded in getting an order from this Court on 22nd March, 1973 to the effect that the order of the learned Magistrate, dated 7th March, 1973, alone was to be implemented. While passing the said order I had observed that if any party wished to challenge the order of the Magistrate, dated 7th March, 1973, it could do so to accordance with law. Sardar Dais Muhammad, Manzur and one Shaman have filed the present three revision applications.

3. The case of all the petitioner is that they are owners of some of the cattle, Sardar Dais Muhammad claiming ownership of six, Manzar Hussain of four, and Shaman of‑five. On the other hand, as already stated Zahur Ahmad respondent had approached the learned Magistrate asserting his own ownership of the entire lot of cattle.

4. The requirement of the law, as laid down under section 523 Cr. P. C, for seeking custody, is era entitlement to tide possession of the property. The Magistrate was, therefore, to satisfy from the papers available before him as to who was entitled to the possession of the cattle, and he could award the custody of the cattle in accordance with such satisfaction. On 7th March, 1973, the only party which had approached the learned Magistrate was Zahur Ahmad. it is stated that he had filed as many ac ten affidavits in support of his claim of ownership. On that state, the present petitioners were not there. There was, therefore no occasion for the learned Magistrate to examine the rival claims of the parties. All he was required to do was to satisfy that Zahur Ahmad was entitled to possession of the cattle.

5. We have, therefore, to examine if the order, dated 7th March, 1973, was an order validly passed. An order under section 523, Cr. P. C. can be passed on the material before the Magistrate without any Independent inquiry regarding the ownership of the property. In Chuni Lal v. Ishar Das (A I R 1924 Lah. 76) it was held that it is not incumbent on a Magistrate to hold a judicial inquiry on oath before passing an order under this section. Such an order can be passed on police reports and papers alone. It is, however root the intention of the law that the Magistrate shall act in an arbitrary manner. The duty of the Magistrate under this section as to make some inquiry in order to satisfy himself as to the person entitled to possession before making an order. See In re K. Chinnavadu (A I R 1942 Mad. 726). Its the present case, however, the learned Magistrate, as is obvious from his order dated 701 March, 1973 had not called for the police file. In fact, he had not even cared to ascertain if the cattle in question were, in fact, with the police. Nor, is there any thing in the order to show that he had applied his mind to the entitlement of Zahur Ahmad. When the person from whom the cattle had been recovered i e., Muhammad Ashraf alias Bashro, had himself riot come up asking for custody of the cattle, the learned Magistrate should have proceeded warily in acting upon the assertion of ownership of Zahur Ahmad, nephew of that Muhammad Ashraf. Even the right of ownership by itself may not entitle a person to receive custody of the property under section 523, Cr. P. C. It is true that a formal inquiry is not a mandatory condition but it does not mean 4 that the Magistrate can approach the question of awarding custody in a perfunctory or casual manner. It was his duty under the law to have recorded his satisfaction as to the entitlement of Zahur Ahmad to receive the cattle. It is obvious that for recording such satisfaction he had to examine the police files and other records that could be available. He should have sent for the police papers which unfortunately he did not do. It was held in Ghulam Ali v. Emperor (A I R 1945 Lah. 47): "Even that order is not free from defect, because it would appear from a strict reading of the section that that order should be passed not on the application of tile party, but on a report by the police." The order in question, i.e., the one passed on the 7th of March, 1973, a also the subsequent orders dated 9th March, 1973 and 12th March 1973, was passed in haste and without due care; the result was the existence of conflicting orders in respect of the custody of the same cattle. The dis cretion given by law was thus not exercised by the learned Magistrate in a judicial manner and is accordingly liable to correction by this Court.

6. The order of the learned Magistrate, dated the 7th of March, 1973, is, therefore, set aside and it is directed that he shall decide the matter afresh in accordance with the law. As prayed for by the parties. It is further directed that until such decision is made, the cattle shall remain wherever they are at the present. The three revision applications stand disposed of accordingly. Order accordingly.