2014 PLP 1536 (SCMR)

IJAZ AHMED CHAUDHRY, J.

Mazhar Ali, petitioner, by way of this petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, seeks leave to appeal against the order dated 29-11-2012, passed by the Lahore High Court, Lahore in Writ Petition No.9311 of 2012 filed by respondent No.1, whereby, while accepting the same, superdari of buffalo, subject matter of case F.I.R. No.478, dated 16-11-2011, registered under sections 457, 380, 215, P.P.C., read with section 14, Offences Against Property (Enforcement of Hudood) Ordinance, 1979 at Police Station Rajoa, District Chiniot, was restored to respondent No.1.

2. Tersely, the facts relevant for the disposal of the instant petition for leave to appeal are that Ansar Ali, respondent No.1, lodged F.I.R. No.478/2011, dated 6-11-2011, under sections 451, 380, 215, P.P.C. read with section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 at Police Station Rajoa, District Chiniot alleging therein that his buffalo was taken away by five unknown accused persons. Fazal Ali alias Phali son of Ali Muhammad, one of the accused of theft of buffalo of the petitioner (whose name, as per F.I.R., was introduced on the information of one Wajid son of Fazal Karim) sold the buffalo and from the consideration amount of that he had purchased a new buffalo which had been recovered from his possession as case property by the police in the aforesaid case. Respondent No.1 and the petitioner filed applications for superdari of the buffalo which were decided by the learned Judicial Magistrate through consolidated order dated 10-12-2011, whereby superdari of the buffalo was handed over to respondent No.1 while the application of the petitioner was dismissed. The petitioner assailed the said order by filing a revision petition before the learned Additional Sessions Judge who vide order dated 12-1-2012 set aside the same and directed the learned Judicial Magistrate to inquire into the matter summarily. Thereafter the learned Judicial Magistrate vide order dated 28-1-2012 granted superdari of the buffalo in favour of Mazhar Ali, petitioner while accepting his application and the application filed by Ansar Ali was dismissed. Ansar Ali challenged the aforesaid order by filing a revision petition before the learned Additional Sessions Judge, Chiniot which stood dismissed vide order dated 3-4-2012. Ansar Ali, being dissatisfied with the orders of the learned Additional Sessions Judge and that of Judicial Magistrate filed Writ Petition No.9311 of 2012 before the Lahore High Court. The said writ petition was accepted and the superdari of the buffalo was granted in favour of respondent No.1. Feeling aggrieved by the aforesaid order, the petitioner has called in question the legality thereof by filing instant petition for leave to appeal.

3. Learned counsel for the petitioner contends that the impugned order is against law and facts of the case; that the learned High Court has upset the findings of fact recorded by the learned courts below without any cogent reasons and pointing out any legal infirmity therein; that the learned Lahore High Court has acted illegally while accepting the writ petition without affording an opportunity to the petitioner of being heard; that the findings of the learned High Court are based on misreading and non-reading of the evidence on record and has illegally drawn an inference of cancellation of case F.I.R. No. 478/2011; that the superdari could not have been given with regard to an alternate property other than the subject matter of the F.I.R. in question; that the learned High Court illegally restored the order dated 10-2-2012 passed by the learned Judicial Magistrate which was set aside by the revisional court, the case was remanded back to the learned Judicial Magistrate and the said order had attained finality.

4. Learned counsel for the respondent, on the other hand, has supported the impugned judgment and contended that the petitioner had stolen the buffalo and sold out the same and with the said sale amount, he had purchased another buffalo and now the said buffalo is the case property and the learned High Court has rightly directed for handing over the said buffalo to the respondent.

5. We have heard the learned counsel for the parties and also perused the available documents. The case of the petitioner is that the disputed buffalo belongs to his sister, namely, Mst. Nasreen Bibi and the police forcibly took away the said buffalo from his house on 27-11-2011 and prepared a false recovery memo of the same against his brother who has alleged to have stolen the buffalo and is accused of F.I.R. No.478/2011 whereas the case of Ansar Ali, respondent, is that the buffalo in question has been recovered from the accused of F.I.R. No.478/2011, namely, Fazal alias Phalli as he had exchanged the buffalo in question with the stolen buffalo.

6. Although the stances taken by the petitioner as well as respondent No.1 are supported by affidavits sworn by the witnesses, yet, the affidavits placed on record in support of his claim by the petitioner are duly supported by the circumstances of the case and keeping in view those circumstances the learned Judicial Magistrate granted superdari of the buffalo under dispute to the petitioner which findings of fact were upheld by the learned revisional court finding no illegality in the said order whereas the learned High Court has illegally restored the said order of learned Judicial Magistrate which was set aside by the revisional court and had attained finality in favour of the respondent while upsetting the findings of fact recorded by both the learned courts of learned Judicial Magistrate and the learned Additional Sessions Judge and has granted superdari of the buffalo in question in favour of respondent Ansar Ali without pinpointing any legal infirmity therein. The learned High Court, merely on the statement of the Investigating Officer while appearing before the said court that the buffalo in question was already with respondent No.1 on superdari for the last about one year and that crime report lodged at the instance of respondent No.1 was found false and had been recommended for cancellation, granted the superdari of the buffalo; whereas the fact of the matter is that there is nothing on record to suggest that the F.I.R. has been cancelled, as such, the order of the learned High Court is based on surmises and conjectures.

7. As far as the contention of learned counsel for respondent No.1 that the original buffalo stolen by the petitioner has been sold out and with the money received from the sale of stolen buffalo he has purchased another buffalo, which is now the case property, be given to the respondent on superdari, we may observe that section 12 of the Offences Against Property is applicable at the time of final decision of the case/F.I.R. Furthermore, no evidence had yet been brought on record that the buffalo under dispute was purchased from the money gained through sale of the stolen bufallo which was the original case property. In such circumstances, we find no force in the contention of the learned counsel for respondent.

8. For what has been discussed above, we, while converting this petition into an appeal, allow the same and set aside the order of the learned High Court passed on 29-11-2012 in Writ Petition No.9311 of 2012. MWA/M-36/SC Appeal allowed.