2014 P Cr (PLP)

ALI BAQAR NAJAFI, J.

Through this constitutional petition, the petitioner seeks setting aside of the order dated 29-8-2012 passed by the learned Area Magistrate, Arifwala and that of dated 14-9-2013 passed by the learned Additional Sessions Judge, Arifwala and to have 3 buffaloes on superdari.

2. Briefly, the necessary facts are that F.I.R. No. 172 dated 3-8-2013 was registered under sections 457, 380, 411, P.P.C. at Police Station Ahmed Yar, District Pakpattan Sharif, at the behest of one Zahoor Ahmed, respondent No.4 against petitioner for committing theft of cash Rs.1,00,000 and 6-1/2 Tolas of gold ornaments valuing Rs.3,90,000 and 24 Tolas of silver ornaments valuing Rs.24,000 etc. Later, he confessed his guilt and under took to give the buffalos mentioned in the F.I.R. along with stolen articles from which he backed out. On 6-8-2013 respondent No.4 was granted superdari on the basis of police report as the petitioner is the complainant of F.I.R. and there is no rival claimant. Later, its cancellation was also moved by the petitioner which was dismissed on 29-8-2012 whereas application of respondent No.4 for seeking possession of Rs.20,000 recovered as case property, on superdari was accepted on 29-8-2012. The above said two orders were challenged in criminal revision which was dismissed on 14-9-2013 with the observation that his order would have no effect upon the final conclusion of case F.I.R. No.172.

3. The main argument of the learned counsel for the petitioner is that the buffaloes were the personal property of the petitioner who cannot be directed to go to civil court to clarify his title as the said buffaloes were not the part of the case property. Places reliance upon 1996 SCMR 1544 (Khalid Saleem v. Muhammad Jameel alias Billa and 6 others) 1993 PCr.LJ 1004 [Lahore] (Haq Nawaz and 2 others v. S.H.O., Police Station Lalian, District Jhang and others) and PLD 1950 Lahore 97 [Single Bench] (Sardara v. Boota).

4. Conversely, the learned counsel for the complainant vehemently opposes the petition and submits that the said buffalos were the case property which the accused-petitioner admitted to have purchased by selling the stolen articles and as many as 17 F.I.Rs. stood registered against him. Places reliance upon 1993 PCr.LJ 2252 [Lahore] (Ghulam Farid v. Muhammad Nawaz and another). He also submits that this petition is not maintainable as the order for superdari of Rs.20,000 was not challenged.

5. Arguments heard. Record perused.

6. Admittedly, the petitioner is an accused person in case F.I.R. No.172 of 2013 facing charges of theft of cash and gold ornaments etc. According to the F.I.R., the petitioner committed to, give buffaloes to the complainant for compensation in lieu of case property while admitting his guilt. It was during the investigation when the above said buffaloes were taken into possession by the police, which in my humble opinion cannot be termed as case property as the same were not stolen and the complainant had never claimed to have owned the same. Since it is not a case property, therefore, same cannot be refused to the petitioner who is an accused person of theft. The said buffaloes are not required in any case and were taken into possession, therefore, same were to be returned to the person from whom it was taken. My reliance is upon 1996 SCMR 1544 (Khalid Saleem v. Muhammad Jameel alias Billa and 6 others) in which it was held as under:-- ".......Similarly the articles recovered by the police during the investigation of the case allegedly belonging to Muhammad Ashraf alias Mehboob which are stated to have been purchased from the money which he had received by the sale of ornaments the subject of dacoity in this case, which were later on given on Superdari to the complainant, along with Mazda Car and Honda Motorcycle belonging to Nain Sukhia, who had allegedly purchased it with the sale proceed of the case property, all these are to be returned to their respective owners. If there is involved any question of title the same shall be left to be determined by the Civil Court."

7. In my humble opinion, the Area Magistrate and the learned Additional Sessions Judge were required to satisfy that the buffalos were the case property in the criminal case and the person Niko is entitled to the custody of the same. Even otherwise, the original principle is that if the property is not proved subject matter of the offence it should be restored to the person from whom it had been taken. My reliance is upon PLD 1950 Lahore 97 [Single Bench] (Sardara v. Boota).

8. The judgment cited by the learned counsel for the respondent 1993 PCr.LJ 2252 [Lahore] (Ghulam Farid v. Muhammad Nawaz and another) is not applicable to the facts of the instant case as in that case the property purchased from the stolen articles was agreed to be handed over on the basis of a settlement which was taken into possession by the police. In the instant case there existed only a 'Salsi agreement' dated 15-7-2013 with terms to hand over the buffalos if the petitioner was found guilty by the 'Punchayat' and admittedly the buffaloes were not handed over to the complainant.

9. In this view of the matter, I am of the opinion that the buffaloes were not the case property, therefore, were required to be handed over to the owner with detailed inquiry and if subsequently the civil court found the title defective the law will to take its own course. 10 In view of the above discussion, I allow this petition and set aside the orders passed by the Area Magistrate and the learned Additional Sessions Judge. Resultantly, the petitioner is entitled to superdari of buffaloes subject to the security to be fixed by the learned Area Magistrate. MWA/M-155/L Petition allowed.