2016 PLP 100 (YLRN)

SHAHNAWAZ TARIQ, J.

Through captioned criminal miscellaneous application, applicant has impugned orders dated 21.05.2015, passed by the Court of Additional Sessions Judge, Ubauro, whereby order dated 12.03.2015, passed by the Court of II-Civil Judge and Judicial Magistrate, Ubauro, was maintained and custody of 5 buffaloes was handed over to respondent No.1, Qabil:

2. The relevant facts spelt out from instant criminal miscellaneous application are that on 02.03.2015, police of Wasti Jeewan Shah raided the house of applicant to cause arrest of his brother Jial Rind, but he was not available at their house. Consequently, police arrested his younger brother Mir Hamza Rind and also took away 17 buffaloes from his house.

3. It is, inter alia, contended by learned counsel for applicant that applicant is owner of 17 buffaloes which were seized by the police from his house and out of the same 12 buffaloes have already been handed over to applicant by learned Judicial Magistrate vide order dated 12.03.2015, and custody of 5 buffaloes was declined; that the appellate Court while maintaining the order dated 12.03.2015 passed by Judicial Magistrate, Ubauro has not touched the material aspects of the case; that learned trial Court on the same day passed two orders i.e. first in favour of the applicant and second in favour of respondent No.1 without considering the material placed before it; that as per inquiry report and Roznamcha Entry No.4, 17 buffaloes were seized from the house of the applicant.

4. While controverting the above submissions, learned counsel for respondent No.1 contended that he is owner of 5 buffaloes which were taken away by the police and he approached the concerned Court for restoration of custody and learned trial Magistrate after hearing the parties vide order dated 12.03.2015, restored such custody to respondent No.1 and applicant may approach the Civil Court for the determination of ownership of buffaloes.

5. Learned A.P.G. contended that order passed by learned Judicial Magistrate is erroneous and not maintainable under the law, as learned Magistrate has mentioned in both orders that no other person has come forward to claim the custody of buffaloes, while applications moved by both the parties were decided simultaneously. However, he extended no objection for grant of instant application in view of the report submitted by Enquiry Officer.

6. Perusal of material available on record and consideration of arguments advanced by learned counsel for the parties, emanate that Wasti Jeewan Shah police raided the house of applicant to cause arrest of the brother of applicant namely Jial Rind but he was not available at house, whereupon police apprehended applicant's younger brother Mir Hamza Rind and also took away his 17 buffaloes. Subsequently, applicant filed application under section 516-A, Cr.P.C. for restoration of custody of his 17 buffaloes. Simultaneously, respondent No.1 also moved application for the custody of 5 buffaloes. After hearing arguments of both the parties, learned Judicial Magistrate decided both applications by separate orders on 12.03.2015, and restored 12 buffaloes to applicant and 5 buffaloes to the respondent No. 1.

7. From bare perusal of two impugned orders dated 12.03.2015 passed by learned trial Magistrate separately on two applications moved by both the parties independently, are similar in findings and it is mentioned that no other person has come forward and to claim ownership of the cattle/buffaloes, which from the face of it is contradictory to the facts and material placed before the learned trial Magistrate. From the perusal of order dated 21.05.2015, passed by learned Additional Sessions Judge, Ubauro, it is crystal clear that learned Court has not considered the material facts nor any justification has been furnished for maintaining the impugned order passed by learned Magistrate, while respondent No.1 has failed to file any cogent proof to strengthen his claim.

8. Perusal of entry No.4, lodged on 02.03.2015, at 1150 hours, at P.S Wasti Jeewan Shah, available at Page No.37 of the file, emanate that police raided the house of applicant for the arrest of his brother Jial Rind who was not available there and his younger brother namely Mir Hamza Rind was apprehended and at the same moment 17 buffaloes were also taken away by the police, which were brought at P.S. and such proceedings were initiated under section 550, Cr.P.C.

9. Subsequently, applicant filed C.P No.S-761 of 2015, before this Court and this Court vide order 20.3.2015, directed Inspector Ghulam Ali Jumani, Incharge Complaint Cell of DIG Office, Sukkur Range, to conduct concrete enquiry in the matter and submit report. Pursuant to above directions, Enquiry Officer filed a comprehensive report on 07.05.2015, which is available at Page 43 of the file. Perusal of inquiry report reflects that inquiry Officer has thoroughly discussed each and every aspect of the event and lastly concluded that 17 buffaloes were taken away by Wasti Jeewan Shah police from the house of applicant. The operative part of findings of Enquiry reports is reproduced as under:- "After hearing the petitioner party so also respondent Police officials and examining the defence as well as independent witnesses and as per secret and open enquiry of the undersigned, the facts came on surface that:- a) Actually, petitioner himself and his close relatives are criminals, having sufficient criminal record. On 27.02.2015, respondent Police officials of PS Wasti Jeewan Shah along with sub-ordinate staff conducted raid upon the house of petitioner for the arrest of petitioner's brother Jeeal Rind, but could not succeed to arrest him, so that petitioner's younger brother Mir Hamza Rind was captured and also 17-Buffaloes of petitioner were seized by Police. (b) Subsequently, petitioner approached to Honourable Court of Sessions Judge, Ghotki and filed such petition, on which Raid Commissioner was appointed by Honourable Court, who conducted raid at PS Wasti Jeewan Shah. (c) Consequently, Police of PS Wasti Jeewan Shah frustrated and shown the arrest of petitioner's brother Mir Hamza in Crime No.25/2015, under sections 302, 311, 34, P.P.C. of PS Wasti Jeewan Shah by recording further statements of complainant ASI Shabir Ahmed Arain and PWs Police officials, whereas, cattles of petitioner were also shown in Karwai No.1/2015, under section 550, Cr.P.C. of PS Wasti Jewan Shah. (d) Later, out of (17) seized Cattles, 05-Cattles were handed over to one Qabil son of Qadir Bux Tart, while remaining 12-Cattles were handed over to the petitioner, vide Honourable Court of IInd Civil Judge and Judicial Magistrate Ubauro's letter No.394 dated 14.03.2015 and No.410 dated 17.03.2015, respectively. (e) However, from the entire enquiry so far conducted by the undersigned, it has concluded that all afore mentioned 17-Cattles pertain to the petitioner Allah Diwayo Rind, as witnessed by the independent persons of vicinity. As such, Police has shown incorrect place of offence of above Karwai because cattles were seized from the house of petitioner."

10. It is well settled that while considering the application for restoration of the temporary custody of seized property by the original owner or from whose possession police has seized such property, preference must be given to said application. In case any other party controverts the claim of preceding party, and moves an application for restoration of temporary custody of said property, the Court must examine said application judiciously and consider whether second party has lodged FIR or moved any complaint before any competent authority in respect of seized property, and also consider the proof of his ownership as well as last possession over seized property. And mere raising of a counter-claim by other party will not frustrate the rights of the first party over the seized property. Moreover, in absence of cogent material placed by the objector, parties should not be directed to seek declaration from the Civil Court regarding their title of the seized property which otherwise will cause prejudice to the party having preferential right and from whose possession disputed property was seized by the police.

11. Applicant has prima facie established his claim of ownership over 5 buffalos through cogent material that Wasti Jewan Shah police had seized 17 buffaloes from the house of applicant. Conversely, respondent No.1 has neither mentioned the date, time and venue from where the police had taken away said 5 buffalos nor lodged FIR instantly after commission of the alleged offence nor moved any written complaint to any competent authority nor approached the concerned Court for redressal of his grievance. Despite the above circumstances, both the Courts below restored the custody of 5 buffalos to respondent No.1, merely on his simple application without considering the material available on record judiciously. Consequently, the concurrent findings passed by both the Courts below are suffering from illegality and material irregularity, hence not maintainable under the law.

12. Considering the facts and circumstances referred supra, applicant has established his claim over 5 buffaloes and impugned orders dated 21.05.2015, and 12.03.2015, being devoid of legal substance stand set-aside. Consequently, instant criminal misc. application stands allowed as prayed. Learned II-Judicial Magistrate, Ubauro is directed to restore the custody of 5 buffaloes to applicant Allah Diwayo on furnishing surety in the sum of Rs.300,000/- and P.R. bond in the like amount to the satisfaction of learned trial Court. Copy of this order may be transmitted to the Court of learned II-Judicial Magistrate, Ubauro as well as SHO P.S Wasti Jewan Shah for information and strict compliance. SL/A-2/Sindh Application allowed.