2000 PLP 3040 (YLR)

(d) Criminal Procedure Code ( V of 1898)‑‑‑ ‑‑‑‑S. 561‑A‑‑‑Inherent jurisdiction of High Court is to be utilized for fostering justice and not defeating the same. Arshad Iqbal Tarrar for Petitioner. Dispensation sought for is allowed. Disposed of.

2. On 7‑9‑1999 the petitioner took some cattle‑head on Superdari but subsequently on an application moved by respondent No. l that order of Superdari was recalled by the learned Ilaqa Magistrate on 27‑4‑2000 and Superdari of the said cattle- head was ordered to be given to respondent No. l. A revision petition filed by the petitioner against that order was subsequently dismissed by the learned Sessions Judge, Sheikhupura vide judgment, dated 10‑7‑2000. Hence, the present petition filed under section 561‑A, Cr.P.C. before this Court.

3. In support of this petition it has been argued by the learned counsel for the petitioner that the learned Magistrate had no jurisdiction to review his earlier order of Superdari passed in favour of the petitioner and, therefore, the order, dated 27‑4‑2000 passed by the learned Magistrate was coram non judice and void ab initio. In this respect a reference has been made by the learned counsel for the petitioner to the cases of Sh. Liaqat Hussain v. The State (1997 PCr.LJ 61) and Anwar Waheed v. The State 1979 PCr.LJ Note 29 at page

19. It has further been argued by the learned counsel for the petitioner' that whenever the title of some property is in dispute a Superdari of the said property cannot be claimed unless title of the said property is first established before a Civil Court. In this regard the learned counsel for the petitioner has placed reliance upon the cases of Muhammad Safdar v. Muhammad Nazir (1996 SCMR 496), Ghulam Nabi v. The State (PLD 1961 Lah. 205) and Arbab Khan v. The. State (1990 PCr.LJ 649). It has, thus, been canvassed by the learned counsel for the petitioner that the order passed by the learned Magistrate on 27‑4‑2000 as 'Well as the impugned judgment passed by the learned Sessions Judge, Sheikhupura on 10‑7‑2000 call for interference by this Court through its inherent jurisdiction under section 561‑A, Cr. P. C.

4. After hearing the learned counsel for the petitioner and going through the documents appended within this petition it has been felt by this Court that the reasons advanced by the learned Courts below for deciding the matter of Superdari against the petitioner are quite valid and justified on the merits of the case. The petitioner had obtained an order of Superdari of the cattle- head in question from the learned Magistrate at a time when the petitioner was not possessed of any material supporting his claim of ownership of the said cattle‑head. In these circumstances the learned Magistrate was amply justified in cancelling the said order subsequently on an application of respondent No. l who apparently had a better claim of ownership or possession of the cattle‑head in question. In these circumstances at least the justness of the cause tilts heavily in favour of respondent No. l rather than in favour of the petitioner.

5. As regards the objection jurisdiction of the learned Magistrate taken by the learned counsel for the petitioner before this Court suffice it to observe that the language of section 516‑A, Cr.P.C. itself‑provides that "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". The said language employed by the Legislature does not restrict the Court concerned to pass an order on a one‑time basis while shutting any possibility of a reconsideration of the matter when a better claim to the said property comes forward with a formal application in that regard. There may be a case in which some property is obtained on Superdari by, a person by practising fraud upon the Court or by concealing the relevant facts. I am not ready to interpret the abovementioned words used in section 516‑A, Cr.P.C. in a manner which deprives the Court concerned the necessary jurisdiction to reconsider the matter in the light of some fresh material coming before it so as to protect and advance the interests of justice. It goes without saying that no premium can be put on a mistake or an error and while interpreting a provision of law this Court would lean in favour of such an interpretation which keeps a window open for correction or rectification of a mistake or an error or where the ends .of justice so require. The language of section 516‑A, Cr.P.C. surely does not close all such windows. Therefore, I am inclined to keep at least one window open for reconsideration of the matter of Superdari by the Court concerned where it is called for.

6. There is also another angle from which this matter can be looked at. Granting of Superdari of a property to a person pending an inquiry or trial does not create any vested right in favour of such a person qua that property. Superdari is only a temporary arrangement and the Court granting the Superdari never looses its overall control of the property concerned. A Superdar acts only as a trustee and, therefore, he can never claim that the Court concerned cannot retake the property in question from him at any time. Looked at from this angle the whole argument of the learned counsel for the petitioner in this respect appears to be misconceived and nugatory to the very essence of the concept of Superdari.

7. As regards the second submission made by the learned counsel for the petitioner that respondent No. l ought to have established his title before a Civil Court first before approaching the learned Magistrate for seeking Superdari of the cattle‑head in question suffice a to remark that the impugned order passed by the learned Magistrate and the impugned judgment passed by the learned Sessions Judge show that the petitioner was apparently possessed of no material to lay any claim on the cattle‑head in question whereas respondent No. l had some material available with him to lay such a claim on the said cattle‑head. In this view of the matter if at all anybody had to go to civil Court to establish his title in the first instance it was the present petitioner rather than respondent No. 1.

8. The impugned‑ order and the impugned judgment passed by the Courts below have appeared to this Court to be quite valid and justified in the circumstances of this case and the same, therefore, do not call for any interference by this Court through exercise of its inherent jurisdiction under section 561‑A, Cr.P.C. It goes without saying that the inherent jurisdiction of this Court under section 561‑A, Cr.P.C. is to be utilized for fostering justice and not for defeating the same. This petition is, I therefore, dismissed in limine. Criminal Miscellaneous No.2 of 2000

9. As the main petition has been dismissed in limine by this Court today, therefore, the present application seeking interim relief has lost its relevance. Dismissed. N.H.Q./M‑267/L Petition dismissed: