2017 PLP 1638 (YLR)

SHAHNAWAZ TARIQ, J.

Through captioned miscellaneous application, applicant Jewan Kosh has impugned order dated 02.12.2008, passed by the Court of learned Civil Judge and Judicial Magistrate, Daharki and order dated 10.06.2009, passed by the Court of learned II-Additional Sessions Judge, Ghotki, whereby Criminal Revision No.06 of 2009 filed by the applicant, was dismissed.

2. Relevant facts spelt out from instant application are that on 17.07.2006 ASI Muhammad Qasim Kolachi of Police Station, Wasti Jiwan Shah seized 18 cattle suspected to be stolen and seizure mashirnama was prepared in presence of PC Ali Akber and PC Manzoor Ahmed and such report was submitted before the Court of learned II-Civil Judge and Judicial Magistrate, Ubauro.

3. Subsequently, one Sodho Kosh moved an application under section 516-A, Cr.P.C. for the release of said cattle and learned Magistrate after calling report from police passed order dated 20.07.2006 on the report under section 523, Cr.P.C. and restored the cattle to Sodho Kosh on furnishing surety of Rs.500,000/-.

4. Thereafter, Ghulam Yasin and Muhammad Akram Jatt agitated order dated 20.07.2006 before the Court of learned Sessions Judge, Ghotki and same was set aside vide order dated 01.06.2007 and case was remanded to the Court of learned II-Civil Judge and Judicial Magistrate Daharki for deciding the same afresh. Learned Magistrate again allowed the application for restoration of animals on Superdari basis vide order dated 04.06.2007 on furnishing solvent surety in the sum of Rs.200,000/- and P.R. Bond in the like amount and applicant stood surety and also executed bond that in case of any default, he will pay Rs.200,000/- as fine.

5. Subsequently, learned trial Court issued several notices to surety to produce buffaloes before the Court but he failed to produce the same and ultimately intimated the Court that said buffaloes have been stolen away and also produced copy of FIR No.36 of 2008, under sections 380, 457 and 215, P.P.C. at Police Station, Wasti Jiwan Shah lodged by one Jiwan regarding commission of theft of said buffaloes.

6. Learned Magistrate after hearing the parties, imposed fine amounting to Rs.200,000/- upon applicant vide order dated 02.12.2008 and directed him to pay the same within 15 days. Applicant impugned said order by filing Cr. Revision No.6 of 2009 before the Court of learned Additional Sessions Judge Ghotki, which was also dismissed vide judgment dated 10.06.2009, hence instant application.

7. Learned counsel for applicant contended that applicant stood surety for release of buffaloes on the request of Sodho in the name of Almighty Allah; that on receipt of notices issued by the Court, applicant approached said Sodho for production of buffaloes before the Court but he came to know regarding commission of theft of said buffaloes, hence he produced copy of FIR before the learned trial Court; that applicant is a poor person, hence lenient view may be taken.

8. Learned counsel for claimant files copy of judgment dated 03.08.2009, passed in Criminal Case No.60 of 2008, Re-State v. Muhammad Akram and others, arising out of Crime No.36 of 2008 of Police Station Wasti Jiwan Shah, registered under sections 457, 380, 215, P.P.C. regarding commission of theft of said buffaloes. Learned counsel contended that Jiwan Kosh being uncle of Sodho lodged a false FIR, hence accused persons were acquitted by the learned Magistrate, Ubauro; that applicant since very beginning has been violating the terms of the bond and also failed to produce any good ground for leniency. Copy of the judgment is taken on record.

9. While controverting above submissions, learned APG vehemently contended that applicant has not come to the Court with clean hands; that applicant filed Criminal Misc. Application No.162 of 2009 before this Court, which was too dismissed for non-prosecution vide order dated 13.09.2013; that applicant with unexplained delay of 44 days, has again filed instant miscellaneous application for the same relief, which is barred by time and even no good ground has been shown for interfering with the orders passed by the Courts below.

10. Perusal of record reflects that applicant stood surety and executed bond in compliance of order dated 01.06.2007, passed by the learned trial Court. Thereafter learned trial Court issued repeated notices to applicant to produce buffaloes before the Court but he failed to comply with the said order. Subsequently, he appeared before the trial Court and produced copy of FIR No.36 of 2008 lodged by Jiwan Kosh uncle of Sodho regarding commission of theft of buffaloes released on superdari to Sodho. Perusal of judgment dated 30.08.2009 passed by the Court of learned Judicial Magistrate, Ubauro in Criminal Case No.60 of 2008 vide FIR No.36 of 2008 emanates that 7 accused persons were implicated by the complainant for the commission of theft of said buffaloes but in absence of any tangible evidence, they have been acquitted by the trial Court from the charge under section 245(i), Cr.P.C., thus the plea agitated by the applicant was false.

11. Conversely, it was incumbent upon the applicant to inform the trial Court regarding commission of theft of buffaloes instantly but he deliberately avoided to come forward to perform his duty and remained silent and despite issuance of notices by the learned trial Court. Thereafter he appeared before the Court in compliance of notice issued to him under section 514, Cr.P.C. with the plea that said buffaloes have been stolen away but said stance has been disproved vide judgment passed by learned Judicial Magistrate, whereby accused persons have been acquitted. Consequently, applicant has failed to perform his duty as per terms and conditions mentioned in the bond executed by him before the learned trial Court. It is significant to mention that vide order dated 02.12.2008, applicant was directed to deposit the fine amount within 15 days' time but during the period of 8 years, he has failed to deposit the said amount, hence he does not deserve for any concession. It is well settled that execution of surety bond on humanitarian grounds by the applicant for release of any accused on bail or property on superdari, is no ground to extend any lenient view.

12. Previously, applicant had filed Criminal Misc. Application No.162 of 2009 before this Court, but he continuously remained absent, thus same was dismissed for non-prosecution vide order dated 13.09.2013 and at present applicant has filed instant miscellaneous application with unexplained delay of 44 days for claiming same relief, which is barred by time and even no sound ground has been shown by the applicant for interfering with concurrent findings passed by learned both the Courts below.

13. Considering the above fact and circumstances, instant criminal misc. application stands dismissed being non-maintainable under the law. Learned trial Court is directed to initiate all the possible legal measures to ensure recovery of fine amount imposed upon the applicant. Copy of this order may be transmitted to the learned trial Court for information and compliance. JK/J-1/Sindh Application dismissed.