2018 PLP 278 (YLRN)

MALIK HAQ NAWAZ, J.

The instant petition has been filed by the petitioner against the orders of learned Sessions Judge Hunza-Nagar, who refused to allow superdari of the various kind of mobile sets and accessories vide order dated 04-11-2016.

2. As per the prosecution story narrated in FIR No. 06/2016 of Police Station Sost dated 30.09.2016, under sections 457/380, P.P.C., finds mentioned in the order/judgment of learned Sessions Judge Hunza/Nagar dated 04.11.2016, which is reproduced here under for the purpose of convenience. "Brief facts of the connected case as per prosecution story are that on 30.09.2016 at 1930 hours FCs Raziq Shah and Shamsher Khan of KSF were on patrolling duty outside Silk Route Dry Port Sost when they noticed that some persons dropping cartons of goods outside from the premises of Silk Route Dry Port Sost by scaling the wall. They had dropped 03 cartons when two of them on seeing them jumped and landed outside while others went inside of the port. The two persons jumped outside tried to run-away with the cartons but they overpowered them and when asked they gave their names as Sajjad Hussain son of Qalb-e-Ali resident of Sumayar, District Nagar and Syed Naqib Shah son of Syed Sadiq Shah resident of Jalalabad District Gilgit respectively. In the meantime, the customs authorities and security staff of Customs Dry Port also reached and when checked 481 mobile phones (out of which 157 were of Samsung, 131 of LG, 20 of Motrolla, 135 of HTC and 38 of Huawei) besides some casings, batteries and screens found in the cartons. The value of the stolen property was estimated at Rs. 30,00,000/-. Accordingly, on the murasila of FC Raziq Shah, the SHO, Police Station, Sost registered the titled case. During the course of investigation the police also arrested the 3rd accomplice namely Iftikhar Gul son of Gul Muhammad resident of Phaker Nagar who had succeeded in coming out of the port through main gate by dodging the gatekeeper."

3. The petitioner applied for superdari of the above items in the Court of learned Judicial Magistrate, Hunza, which was declined vide order dated 20.10.2016. The petitioner challenged the orders of learned Judicial Magistrate Hunza in the Court of learned Sessions Judge Hunza/Nagar, who also declined the petition for superdari vide order dated 04.11.2016. Being aggrieved from the orders of both the Courts below the petitioner has approached this Court by filing an application under section 516, Cr.P.C.

4. Mr. Muhammad Saleem Khan, the learned counsel for the petitioner raised a new plea that in fact all the above items were purchased from Rawalpindi and brought to Gilgit through PIA currier. The learned counsel when asked to substantiate his plea from any documentary evidence, he kept his lips tight and could not satisfy the Court. The learned counsel was asked as to why these items were taken into custody by the local police of Police Station Sost, the learned counsel stated that these mobiles were being taken to Sost bazaar for sale but on the way the local police intercepted the carrier and seized the mobiles.

5. On the other hand the learned Dy.A.G. also opposed the petition and stated at bar that the petitioner is not entitled for superdari of above items, as these were taken into possession by the local police at Sost and two accused were caught red handed, when they were stealing the mobiles from Dry Port Sost and throwing the same out from the compound wall of the Dry Port. Per learned Dy. A.G, the petitioner later on managed and prepared some fake receipts, which shows his mala fidies and he should not be allowed superdari of stolen mobiles.

6. Having heard both the parties at considerable length and perusal of record and the papers annexed with the petition, it is crystal clear that the above items were taken into possession by the local police at Sost and FIR No. 6/16 was lodged on the complaint of Razaq Shah Senior Constable Silk Route Dry Port Sost. The FIR is natural narration of the occurrence, containing all the details of the items, which were taken into possession through a recovery memo. It is pertinent to mention here that the two accused namely Sajjad Hussain and Syed Naqib Shah were caught red handed and after completion of necessary investigation, they were sent to judicial lockup and statedly they are still in judicial lockup. As held by the learned Sessions Judge Hunza/Nagar that there is ample evidence on record to show that the police patrolling party caught the above named two accused red-handed along with the above mobile phones, while stealing from the premises of Silk Route Custom Dry Port after scaling the boundary walls of the Dry Port. The perusal of record further shows that these mobiles were imported directly in container No.P-75374 by Safdar Enterprises by illegal means as for import of such items special PTA license was required and IMEI Nos. are also required to be supplied to PTA. The petitioner has brought these mobiles illegally to Pakistan, and later on tried to play with the Court by preparing fake and fictitious receipt of Yousuf Mobiles NLI Market Gilgit. There is more than sufficient evidence that the petitioner illegally brought these mobiles from China and when caught red handed, he got prepared some bogus receipts. The petitioner has not approached the Courts with clean hands, therefore, the superdari of the items mentioned above cannot be allowed to the petitioner. The judgments/ orders of both the Courts below have been passed after due application of mind and the concurrent findings of both the Courts regarding refusal of superdari does not merit interference by this Court.

7. Before parting with the judgment, I, direct SSP Hunza to ensure safe custody of the above items in Malkhana and a proper entry will be made in Stock Register No.19 which is maintained in every police station and the details/ description of above items will be mentioned therein to avoid any pilferage A detail list of the above items duly signed by concerned SHO and countersigned by the SSP will be submitted to the Registrar of this Court till 12.12.2016, which will be made a part of Cr. Misc. 165/2016. A copy of this order be immediately dispatched to SSP Hunza for compliance.

8. The I.O. of the case stated at bar that the challan of the case shall be put in Court on 07.12.2016 positively. The trial Court will take up proceedings of this case on day to day basis and shall decide the case in accordance with law without being influenced by any observations made by this Court in the above mentioned judgment.

9. The result of above discussion is that the petition is dismissed being meritless. WA/247GB Petition dismissed.