2017 PLP 62 (YLRN)

MUHAMMAD TARIQ ABBASI, J.

This writ petition is directed against the order dated 10.6.2014, passed by the learned Additional Sessions Judge, Burewala, District Vehari, whereby in revision, the order dated 30.3.2010 of the learned Judicial Magistrate, Burewala, District Vehari has been set aside and 'superdari' of buffaloes in favour of the petitioner has been cancelled and their 'superdari' to the respondent No. 4 has been granted.

2. The precise facts are that on complaint of the petitioner, a case FIR No.151 dated 14.3.2010 under Section 379, P.P.C. at Police Station Saddar Burewala, District Vehari was registered, with the contentions that on 26.2.2010, the complainant while locking his tube well, went to sleep and in the morning, it was found that tube well wires valuing Rs.35,000/- were stolen; in presence of the witnesses, foot prints of five unknown accused were searched, which ended at the metalled road; the complainant of his own had been searching for the accused and stolen property when Sabir Hussain alias Bhutto, Muhammad Siddique, Safdar Hussain and Muhammad Hussain, in a 'panchait' admitted commission of the offence and return of the wires, but later on refused; during the same night, the accused also committed theft of the wires belonging to Faqir Muhammad and Haji Muhammad Aslam Kamboh, amounting to Rs.35,000/- and Rs.30,000/- respectively. The investigation of the case was in progress, when on 16.3.2010, the petitioner told the Police that Safdar Hussain, an accused had given him two buffaloes, with the contention that they were purchased from the sale amount of the wires. Thereafter, the complainant applied before the learned Trial Court for 'superdari' of the buffaloes and succeeded in getting the same through order dated 30.3.2010. The respondent No.4 filed an application before the learned Trial Court for cancellation of 'superdari' of the buffaloes, in favour of the petitioner and their 'superdari' to her, with the contention that her buffaloes, with mala fide, were taken by the petitioner into the Police Station and on the basis of the false proceedings and pretext, he got their 'superdari' in his favour. The learned Trial Court through order dated 11.10.2011, dismissed her above said application. She preferred a revision petition, which came up for hearing before the learned Additional Sessions Judge, Burewala, District Vehari, from where the impugned order was passed, whereby 'superdari' of the buffaloes in favour of the petitioner was cancelled, and their 'superdari' to respondent No. 4 was ordered. Consequently, the writ petition in hand.

3. Arguments heard and record perused.

4. The above mentioned FIR was registered, with the contention that electric wires, belonging to the petitioner and the above named others were stolen by the above named accused person. In this way, the case property was the above said wires and not at all any cattle. Even if the accused had sold out the electric wires and purchased the buffaloes the said cattle do not become case property. It is very strange and astonishing that on 16.3.2010 i.e. third day of the registration of the FIR, the petitioner himself produced the buffaloes in the Police Station, with the contention that they were given to him by Safdar Hussain, an accused and also obtained their 'superdari'. It is pertinent to mention here that the above named Safdar Hussain during pendency of the revision petition, appeared in the court and by submitting a sworn affidavit, contended that he never handed over the buffaloes in question to the petitioner and that in connivance with the Police, the petitioner had taken them from the house of respondent No. 4 to the Police Station and obtained on 'superdari'. The Hon'ble Supreme Court of Pakistan in the case of Mazhar Ali v. Ansar Ali and others (2014 SCMR 1536) held that the superdari could not be given with regard of an alternate property. Furthermore, as stated above the buffaloes were not stolen property as the same were produced by the petitioner before the police with the contention that they were purchased by the accused from sale proceed of stolen electric wires. In such like situation the petitioner was not entitled for superdari of the buffaloes and their owner was entitled to get the same. Reliance in this respect may be made to the case of "Khalid Saleem v. Muhammad Jameel alias Billa and 6 others" (1996 SCMR 1544) 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."

5. When, as stated above, no concern of the petitioner with the buffaloes was developed and his above mentioned stance was rebutted by Safdar Hussain accused in the above mentioned manner and even otherwise the cattle were never case property, then their 'superdari' in favour of the petitioner was not warranted, hence the learned revisional court had rightly passed the impugned order and by cancelling the 'superdari' of the cattle, in favour of the petitioner, handed over them to the respondent No. 4 as her stance was found to be cogent and convincing.

6. As a result of the above discussion, the writ petition in hand being devoid of any force and merit, is dismissed. HBT/M-94/L Petition dismissed.