The petitioner has assailed the vires of order dated 22.12.2010 passed by the learned Judicial Magistrate, Faisalabad, whereby he cancelled "Superdari" of 19 batteries in favour of the petitioner.
2. The facts in brief are that the petitioner lodged FIR No. 502/2008 dated 2.7.2008 Police Station Thikriwala District Faisalabad alleging therein that some unknown persons broke open his shop and committed theft of 36 Exide Batteries, other valuable articles and cash amount of Rs. 18,000/-.
Nineteen batteries were recovered by the police which were ordered to be handed over to the petitioner on "Superdari" vide order dated 15.11.2010. Muhammad Saeed, Respondent No. 5, who is complainant of FIR No. 1082/10 dated 1.11.2010 Police Station Jhang Bazar, Faisalabad, moved an application with the contention that 56 batteries were stolen from his shop and 19 batteries given on "Superdari" were his property and were wrongly released in favour of the petitioner so "Superdari" in his favour be cancelled and the same be handed over to him. This petition was accepted after verification of the numbers of the batteries.
3. The learned counsel for the petitioner has contended that the learned Magistrate had no jurisdiction to review the order dated 15.11.2010 and as such the impugned order is patently illegal. It is urged that the direction of the learned Allaqa Magistrte that the parties should establish their claim in the Civil Court is not sustainable as the petitioner is lawful owner and claimant of the batteries which were stolen from his shop on 2.7.2008. In support of this contention, reliance is placed on 1997 PCr.LJ 61, PLD 1968 Lahore 1290 and 1970 PCr.LJ 1235.
4. The learned counsel for Respondent No. 5 has contended that these batteries were specifically mentioned in the FIR lodged by Respondent No. 5 after commission of theft in his shop. It is urged that the batteries owned by the petitioner were stolen in 2008 whereas all these batteries were manufactured in the year 2010 so the same cannot be the stolen property of case FIR No. 502/2008.
5. The petitioner had lodged FIR on 2.7.2008 without giving the details of batteries stolen from his shop whereas Respondent No. 5 gave the details of the batteries stolen from his shop. The learned trial Court got the batteries inspected through the local commission and found that these batteries were mentioned in FIR No. 1082/10 Police Station Jhang Bazar, Faisalabad, lodged by Respondent No. 5 on 1.11.2010. It is not denied that these batteries were manufactured in 2010. In these circumstances, prima facie, these batteries were not the case property of FIR registered at the instance of the petitioner in the year 2008.so the learned Illaqa Magistrate was fully justified in passing the order for cancellation of "Superdari". Whether this order is hit by the provisions of Section 369 Cr.P.C. or not is to be seen in true perspective of the facts as elaborated above. The Court granting the bail or passing an order for release of the case property on "Superdari" has the power to cancel the same, if sufficient grounds are available in this respect. The impugned order was passed on a subsequent application after bringing under consideration all the relevant. and important facts so it is not hit by the provisions of Section 369 Cr.P.C. The case law cited at the bar is not applicable on the facts of the present petition. However, there is another important aspect of the matter i.e the batteries are consumable/perishable commodities. Till the final conclusion of proceedings on civil side, these will be reduced into empty boxes and would not be of any use for any one. This would ultimately defeat the ends of justice. The learned trial Court should sell the same through the District Nazir in presence of the petitioner and Respondent No. 5 and keep the sale proceeds in government treasury as "Amanat" to be paid to the person entitled to the same as per judgment of the Civil Court. With this direction, the writ petition stands disposed of.