' SHAHID HAMEED DAR, J.---The petitioner has filed the instant petition under section 561-A, Cr.P.C.
Against order dated 5-5-2010 passed by the learned Additional Sessions Judge, Jhang, whereby the revision petition filed by respondent No,1, against an order dated 14-4-2010 passed by the learned Judicial Magistrate section 30, Jhang, has been accepted and the order under revision was set aside.
2. The brief facts germane to the filing of the instant petition are that the petitioner got lodged an F.I.R. No,190 of 2010 dated 30-3-2010 under sections 379, 411 P.P.C. Read with section 13 of the Arms Ordinance XX of 1965 at Police Station, Mochiwala, District Jhang with the allegation that he was fond of keeping Bully dogs and obtained one from Ali Muhammad son of Ahmad Khan on barking of the dogs at about 12-30 a.m. On 30-3-2010, he woke up and saw Muhammad Afzal and Muhammad Azeem with two unknown armed men, filch his bitch; he raised hue and cry which attracted many co-villagers and they chased above said thieves who opened straight firing upon the complainant, and other chaser; the pursuers returned firing in self defence and it continued for about half an hour; the accused covered a distance of about four squares while firing when, all of a sudden, they stopped firing; the complainant and others drew nearer and round Muhammad Afzal lying dead, with a pistol fallen close to his dead body; in the meantime the bitch returned to the complainant who produced her before the police along with above said pistol, as the case property who took these articles into possession through separate recovery memos.
3. One Muhammad Azeem son of Noor Muhammad set up a cross-version in this case by contending that he along with Muhammad Afzal, Riaz and Muhammad Ashraf went to Muhammad Fjaz (complainant of F.I.R.) at 8/9-00 p.m. On 30-3-2010 to fetch the doggess of Muhammad Afzal but he refused to return the same; Muhammad Afzal forcibly untied the bitch and they all walked away, whereupon Muhammad Ejaz etc. Exhorted loudly that the bitch be returned otherwise, they would kill Muhammad Afzal on his refusal to succumb to their demand Muhammad Ejaz etc. Opened indiscriminate firing and murdered Muhammad Afzal at the spot.
4. The petitioner filed an application for seeking Superdari of the above said doggess before the learned Judicial Magistrate, section 30, Jhang which was accepted vide order dated 3-4-2010 and the custody of the animal was ordered to be delivered to the petitioner. The respondent No,1, thereafter, moved an application seeking cancellation of the above-mentioned order of Superdari before the learned Magistrate which was dismissed vide order dated 14-4-2010. Feeling aggrieved of the order dated 14-4-2010, respondent No,1 filed a revision petition before the learned Additional Sessions Judge, Jhang who vide order dated 5-5-2010 accepted the revision petition and set aside the order dated 14-4-2010 passed by the learned Magistrate. The custody of the bitch, however, could not change hands because of a restraining order passed by this court on 12-5-2010. The petitioner being dissatisfied, has challenged the validity of the above said order through the instant petition.
5. Learned counsel for the petitioner submits that the impugned order passed by the learned Additional Sessions Judge is patently illegal, unjust, unwarranted and superfluous as it has been passed in violation to the settled principles of law on the subject; the impugned order is self discrepant as on one hand it has been observed by the learned A.S.J. That the Superdari of the case property has to be given to the person whom-from it had been recovered by the police and on the other hand has allowed the revision petition of respondent No,1 against the record which shows that the petitioner had presented the above noted case property to the Investigating Officer at the time of registration of F.I.R.; the impugned order is based on surmises, conjectures and presumptions, hence, may not be sustained; the first order passed by the learned Magistrate in favour of the petitioner has not been challenged by respondent No,1 which still holds ground and has attained finality under the law; lastly contends that the principle of restoring the possession of the last possessor of the case property under section 516-A, Cr.P.C. Has been violated through the impugned order by the learned A.S.J. Which may be set aside.
6. On the other hand, learned counsel for respondent No,1 submits that the above said bitch belonged to Muhammad Afzal as is evident from the cross version recorded during the course of investigation, on the complaint of Muhammad Azeem the bitch was nurtured and brought up by respondent No,1 and his brother Muhammad Afzal (deceased) together and she could identify the actual owner even today if she was put to such a test; the impugned order has been passed by the learned A.S.J., after hearing both the sides and the earlier order of the Magistrate dated 3-4-2010 had been passed on the back of respondent No,1 which is inherently illegal; the impugned order has been passed judiciously by the learned A.S.J., Jhang which may be sustained and the custody of the bitch may be handed over to respondent No, 1.
7. Learned Deputy Prosecutor General has opposed the contentions of learned counsel for the petitioner and submits that the impugned order does not suffer from misinterpretation or misconstruing of law which has been passed correctly and lawfully by the learned A.S.J. In accordance with the record of this case.
8. I have heard learned counsel for the parties and perused the relevant record. The bitch might not have been as important a piece of evidence as it has rendered into by the Investigation Officer who, on registration of the F.I.R., took her into possession through a recovery memo when it was presented to him by the petitioner as the case property. The petitioner, being the complainant, has contended in F.I.R. No,190 of 2010 supra that the above said doggess rescued herself from the clutches of Muhammad Afzal etc. And managed to return to him. This is not a bald version of the petitioner as he, at the same moment, had produced the bitch, as the case property to the Investigating Officer. The moot point involved in the instant case relates to the last possession of the animal which, in the attending circumstances, can be resolved easily by adverting to the facts of this case. The petitioner in his F.I.R. And respondent No,1 in his cross version have both admitted that the bitch was in the custody and control of the petitioner at the time of occurrence i,e, 12-30 a.m. On 9-3-2010 when according to the version of the former, it was stolen by Muhammad Afzal and his co-assailants whereas, the latter has alleged in the cross version that after a heated debate between the parties, Muhammad Afzal (deceased) had forcibly untied the bitch and taken her away, causing anger and provocation to the accused party of the cross case. The petitioner, in whose favour, the learned Magistrate had passed the order dated 3-4-2010 has prima facie established the fact that he was the last possessor of the above said bitch and that she had returned to him after the occurrence, as contended by both the parties in their respective versions before the police, so, in these circumstances, the contention of respondent No,1 that the bitch may be opened at an open place in presence of both the parties and be signalled to identify the actual owner, has lost relevance. The petitioner has of course offered something to the Investigating Officer as to how he had sought the possession of the above said bitch but respondent No,1, for the time being, has failed to impress upon his version regarding possession of the said case property, as the last possessor.
9. The learned trial Court, in exercise of his powers under section 516-A, Cr.P.C. Was competent to pass an order for custody and disposal of the case property, in the instant case, pending trial, by keeping in view the attending facts and circumstances which appears to have been judiciously and meticulously done by him while passing both the orders dated 3-4-2010 and 14-4-2010.
Section 516-A, Cr.P.C. Empowers the learned Magistrate to pass the appropriate order qua the case property pending trial in the following words:-- "When any property regarding which any offence appears to have been committed, or which appears to have been used for the commission of any offence is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy or natural decay, may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of "
10. The learned Magistrate while passing order dated 3-4-2010 observed the required precautions and rightly directed the petitioner to produce the case property as and when directed by the learned trial Court during the course of the trial. A reasonable surety bond in the sum of Rs,1,00,000 has also been required to be furnished by the petitioner for securing the custody of the bitch.
11. It is manifest from the impugned order that the learned A.S.J, Jhang has rightly hinted at the principles governing the custody and control of the case property pending trial by observing that the last possessor of such property was entitled to the custody thereof under section 516-A, Cr.P.C.
But after having made the said observation, he has been swayed away by the terms "rightful claimant" and "sufficient material" as nothing of the sort, at the moment, exists on the investigation file of this case, favouring respondent No,
1. The impugned order as to the change of custody of the case property has been passed on whimsical grounds, which- do not appeal to reason and logic.
The first order dated 3-4-2010 passed by the learned Magistrate has not been called in question by respondent No,1 in his revision petition, decided by the learned A.S.J., Jhang vide the impugned order which is declared to have been passed in an arbitrary and perverse manner. The impugned order therefore, is set aside being not sustainable.
12. The possession of the case property i,e, the bitch shall be retained by the petitioner till the final adjudication of the trial of the above said criminal case by the learned trial Court who shall also deal with the disposal of the above said case property through the same judgment.
With the above observations, the instant petition stands allowed.