2016 P Cr (PLP)

ERUM SAJAD GULL, J.

Through this petition, the petitioner has assailed the order dated 21.9.2015 passed by the learned Judicial Magistrate Section-30, Kasur and order dated 29.9.2015 passed by the learned Sessions Judge Kasur whereby the application for superdari of donkey hides moved by the petitioner was dismissed.

2. Brief facts of the case are that the petitioner a Chinese citizen has alleged that he is a businessman and bought a number of donkey hides from the wholesale market of hides, in Kasur. That the hides were stored in his rented premises situated at Salamat Pura Kasur which he got on rent from the respondent No.3 (Noor Elahi). The police on 05.09.2015 raided his rented premises and suspected that the donkey hides were of stolen donkeys whose meat was sold illegally to the butchers. An FIR No.570/2015 dated 5-09-2015 under sections 379/429/270, P.P.C. was registered at Police Station B-Division, District Kasur in which the respondents Noor Elahi Masih, Saleem Elahi and Tariq Masih, were nominated as accused persons being members of the gang, who stole donkeys for illegally selling their meat in the local market. The donkey hides were confiscated by the police as case property as several other such FIRs were also registered for donkey theft.

3. The learned counsel for the petitioner argued that the courts below without appreciating the true facts misread the evidence before it and dismissed the application of the petitioner for superdari on frivolous grounds; that the petitioner is aware of the ban imposed by the government and will sell the donkey hides in the local market to recover his money; that if this writ petition is dismissed it will affect the economy of the country as foreign investors will hesitate to initiate any business in the country; that the impugned order be set aside and the superdari of the donkey hides be handed over to the petitioner.

4. The learned Law Officers assisted by the learned counsel who have moved an application to be impleaded in this writ petition have argued that there is a ban on the export of the donkey hides and the petitioner is not entitled to be handed over the said hides; that the citizens have suffered at the hands of these businessmen who have sold 'harram' meat in the market and made good money by exporting the donkeys hides; that the petitioner has failed to prove that he was in the possession of the case property when the police confiscated the donkeys hides; that for the claimants of superdari this is the main and essential ingredient; that the order impugned is legal, be upheld and the writ petition may be dismissed.

5. The arguments advanced by the learned counsel for the parties have been heard and the record perused.

6. In earlier June 2015 a resolution was moved in the Punjab Assembly against the sale of donkey hides and meat after the Punjab Food Authority discovered that donkey meat was sold in the market as beef. To control this illegal activity the Federal Government on 3.9.2015 banned the export of donkey hides. Earlier the price for one donkey hide was not even worth Rs.200/- but now the said hide has become very expensive and one hide can easily fetch Rs.10,000/-. Donkey hides in China and some other countries are used for making shoes, bags and other leather goods. It has been informed that donkey meat in China is a delicacy and one kilogram is sold for more than Rs.800/-.

7. The petitioner is not a Chinese company but is a private person, it is pertinent to mention here that though the petitioner moved the application for superdari before the Magistrate but the rent agreement of the rented premises was made between respondent No.3 Noor Elahi and Yongfu Jia few days before the registration of the FIR, Yongfu Jia never appeared before any Court.

8. Ordinarily, under section 516-A, Cr.P.C. the custody of the case property is handed over to the person, who was last in possession of the said property. Section 516-A, Cr.P.C. is applied only when an offence is committed in respect of any property or the said property is used for the commission of any offence. The case property has to be produced before the trial court when required during the trial and if a perishable item, it is sold or ordered to be disposed of by the Court.

9. The petitioner is unable to prove that he is the owner of the donkey hides or the donkey hides were last in his possession when the police confiscated the hides as case property in FIR No 570/15. It is not a good enough reason to hand over the case property to the petitioner just because he is a Chinese.

10. The petitioner's claim is that he is in the business of donkey hides since many years but no company has been formed in this regard. Prima facie, it appears that the respondents procure donkeys from their sources and after treating the hides store them in the tannery which afterwards is sold to the Chinese and other foreigners who visit Pakistan for purchasing these hides.

11. Admittedly, the respondents are nominated in the FIR as accused for stealing donkeys. Stolen property cannot be given on superdari to a person who purchased it from a thief.

12. The FIR for stolen donkeys has been registered and the trial is under progress it will be advisable that the government sells the donkey hides and hand over the money to the donkey owners whose donkeys were stolen, after the owners are ascertained on conclusion of the trial. Till then the money can be deposited with the trial court.

13. As reiterated above, this writ petition and C.M.No.7542 of 2015 having no force are dismissed and the order dated 21.9.2015 passed by learned Magistrate Section-30, Kasur and order dated 29.9.2015 passed by the learned Sessions Judge, Kasur are upheld. MH/G-45/L Petition dismissed.