ORDER.
Through this petition u/S. 561-A Cr.P.C. the petitioner has challenged the legality of the order dated 04.12.2009 passed by the learned Magistrate Section-30 Mailsi District Vehari and order dated 22.01.2010 passed by the Addl. Sessions Judge Mailsi District Vehari with the prayer that both these orders may be set-aside and earlier order dated 12.09.2009 passed by the learned Magistrate Section-30 Mailsi may be restored and upheld.
2. Facts giving rise to this petition are that on 22.08.2009 Pervaiz Akhtar SI of Police Station Mitru received spy information that Muhammad Arshad S/o Muhammad Ali, caste Kharal, r/o 73/WB, accused of case FIR No, 136/09 dated 14.04.2009 u/S. 379 PPC PS: Mitru was present at his Dera along with stolen articles. If raided, he can be caught red handed. On this a raiding party was constituted and a raid was conducted at the said Dera. On seeing the police party. Muhammad Arshad succeeded in decamping from the Dera. However, the police took into custody one buffalo along with her 'katta' and another young buffalo from the said Dera u/S. 550 Cr.P.C. As per record this recovery was not reported to the Area Magistrate as required u/S. 523 Cr.P.C. by the SI.
However, the fact of taking into custody of the aforesaid cattle from the Dera of Muhammad Arshad was duly entered into Rapt No, 23 dated 22.08.2009 at Police Station Mitru District Vehari by the police.
3. Zahoor Ahmad petitioner also' got registered case FIR No, 477/09 dated 11.09.2009 u/S. 411 PPC at Police Station Mitru District Vehari about the alleged theft of his cattle i,e, buffalos etc valuing Rs, 75,000/-. On coming to know that Police Station Mitru had recovered some cattle, he along with others identified the same. He then moved an application to the learned Magistrate Section-30 Mailsi for getting the said cattle on superdari. Learned Magistrate called report from the SHO in which he stated that in case FIR No, 477/09 dated 11.09.2009 u/S. 411, PPC Police Station Mitru one buffalo, a katta and young buffalo are in the custody of police of Police Station Mitru District Vehari.
The local police has no objection if the same are given to the petitioner on superdari. In the light of the said report, learned Magistrate Section-30 Mailsi vide order dated 12.09.2.009 accepted the application of superdari moved by Zahoor Ahmad petitioner subject to his furnishing surety bonds in the sum of Rs, 1,00,000/- with one surety in the like amount to the satisfaction of the Court.
4. On coming to know about it, Mst. Bashiran Mai wife of Muhammad Ali and Muhammad Arshad s/o Muhammad Ali moved an application for cancellation of order dated 12.09.2009 before the learned Magistrate Section 30 Mailsi who vide order dated 04.12.2009 accepted the same and ordered to hand over the cattle to Mst. Bashiran Mai and Muhammad Arshad on superdari.
5. Against this order dated 04.12.2009, Zahoor Ahmad/petitioner filed revision petition which was dismissed by the learned Addl. Sessions Judge Mailsi vide order dated 22.01.2010. Hence, this petition.
6. Learned counsel for the petitioner contends that the learned Magistrate firstly passed the order dated 12.09.2009 whereby he gave the cattle on superdari to the petitioner. Later on he passed the order dated 04.12.2009 by which' superdari of the cattle was given to the Respondents No, 2 and 3.
It is stated that there is no provision in the Cr.P.C. for reviewing the order dated 12.09.2009. By doing so the learned Judicial Magistrate has exceeded his jurisdiction. This being so, the subsequent order passed by the learned Judicial Magistrate dated 04.12.2009 is not sustainable in the eye of law. Likewise learned Revisional Court has also not considered this fact while passing the order dated 22.01.2010. The same is, therefore, liable to be set-aside.
7. On the other hand, DDPP on behalf Of the State assisted by Rai Moin-ud-Din Advocate for Respondents No, 2 and 3 strongly opposed this petition.
8. Arguments heard. Record perused.
9. Admittedly for about one month and eight days Zahoor Ahmad/petitioner did" not lodge any FIR in his local Police Station regarding any theft of his cattle. There is no denying the fact that the disputed cattle i,e, buffalo along, with his katta and another young buffalo were taken into possession by Pervaiz Akhtar SI from the Dera of Muhammad Arshad/Respondent No, 2 u/S. 550 Cr.P.C. This fact also finds mentioned in Rapt No, 23 dated 22.08.2009 registered at Police Station Mitru District Vehari. It is also not disputed that as required u/S. 523 Cr.P.C. Pervaiz Akhtar SI never reported this recovery to the Area Magistrate. He also did not disclose this fact and the aforesaid Rapt while submitting report to the Area Magistrate on the superdari application moved by Zahoor Ahmad petitioner which speaks of his mala fide and collusion with Zahoor Ahmad/petitioner. Due to concealment of the actual facts, the petitioner succeeded in getting a wrong order of superdari from the Area Magistrate vide order dated 12.09.2009. When Mst. Bashiran Mai and Muhammad Arshad/Respondents No, 2 and 3 came to know about it, they moved an application for cancellation of order of superdari dated 12.09.2009 in favour of Zahoor Ahmad/ petitioner. After hearing both sides, learned Judicial Magistrate Section 30 accepted their application vide, order dated 04.12.2009 and SHO Police Station Mitru was directed to return the cattle. They were also directed to submit surety bond in the sum of Rs, 1,00,000/- with one surety in the like amount to the satisfaction of the Court.
In this case concealment of material facts has been made by Pervaiz Akhtar SI in collusion with Zahoor Ahmad/petitioner at the time of submission of his report to the Area Magistrate which amounts to cheating and fraud with the Court. Every Court has inherent jurisdiction to undo an order obtained by any party by playing fraud and cheating. After making seizure Pervaiz Akhtar SI of Police Station Mitru did not follow the law in as much as he had not reported the recovery of cattle to the Magistrate as required u/S. 523 Cr.P.C. The seizure of the cattle was, therefore, illegal and so was the detention of the cattle by the police. The cattle recovered was to be restored to the person from whom recovery had been actually made i,e, Muhammad Arshad Respondent No, 3.
The order passed by the learned Magistrate vide impugned order dated 04.12.2009 cancelling his earlier order dated 12.09.2009 and giving the cattle to Zahoor Ahmad petitioner on superdari is perfectly legal and justified. Likewise learned ASJ Mailsi rightly dismissed the revision petition filed by Zahoor Ahmad petitioner against the order dated 04.12.2009 passed by the learned Magistrate Section 30 Mailsi District Vehari. (1972 P.Cr.L.J 363 (Lahore), 1976 P.Cr.L.J 730 (Lahore), 1995 P.Cr.L.J 1947 (Lahore), 2005 M LD 176 (Karachi) and 2008 YLR 918 (Lahore) relied upon).
10. The upshot of the above discussion is that petition u/S. 561- A Cr.P.C. filed by Zahoor Ahmad/petitioner is not maintainable., The same stands dismissed.