' CH. MUSHTAQ AHMAD, J.---What brought the petitioner before this Court was the order passed by respondent No,1 dated 16.08.2013 whereby order dated 19.06.2013 passed by learned Magistrate 1st Class, Sahiwal granting Spurdari of the stolen cattle in favour of petitioner, was set-aside.
2. On the complaint of petitioner, a criminal case was registered on 03.04.2013 at Police Station Noor Shah District Sahiwal vide FIR No,155/2013. Petitioner alleged that his cattle 8-in number duly described in the body of FIR were stolen at night in between 04/05.01.2013 from his cattle-shed within the area of Chak No,68/4-R. During search one Waqar Amin and Muhammad Abbas admitted to have stolen the cattle and promised to return the same but later on refused to honour their word on which case was got registered. Muhammad Abbas son of respondent No,3 Mst.
Nooran Bibi, was nominated accused of FIR. During his physical remand he got recovered three buffalos from his Dera which were then into possession by the 1.0 as stolen property. Present petitioner then filed application before Illaqa Magistrate/trial court for Spurdari of his buffalos.
Learned Illaqa Magistrate after obtaining report from the police, allowed application vide order dated 19,06.2013 and directed the pollee to handover buffalos to petitioner. Respondent No,3, mother of accused Muhammad Abbas filed revision petition on 27.06,2013 against order of the learned Magistrate stating that his son was not involved in theft Me and that in fact the cattle belonging to her were taken into possession by the police, custody whereof' was given by learned Magistrate to the complainant of the criminal case. Revision petition was allowed vide order dated 16.08.2013, which is called in question through this petition,
3. Contention of learned counsel for the petitioner is that the learned Magistrate, under Section 516- A Cr. P.0 was competent to temporarily handover custody of stolen cattle to the complainant who was true owner of the same and that the learned Additional Sessions Judge in revisional jurisdiction, has wrongly interfered in the order passed under Section 516-A, Cr. P.0 .
4. Petition has been opposed by learned AAG assisted by learned counsel for the respondent No,3 who has supported the impugned order contending that according to findings of learned Additional Sessions Judge, respondent No,3 was the last possessor of the cattle and entitled to custody of the same on Spurdari. Learned counsel for the respondent has placed reliance on the cases i.e, "Abdul Rashid v. Arshad Ali and 2 others" "(2000 YLR 2619)" and "Mazhar All v. Ansar Ali and others" (2014 SCM R 1536).
5. Heard. Perused.
6. Respondent No,3 Mst. Nooran Bibi had not approached the Illaqa Magistrate when the cattle were taken into possession by the police in criminal case registered against her son and others.
The learned Magistrate also noted in the order dated 19.06.2013 that no rival claimant has come forward to claim custody of the cattle. The application was granted on the following terms and conditions:-- i) Petitioner shall produce the cattle before the Court as and when it was required. Ii) Petitioner shall submit the surety bond to the Rs,5,00,000/- with one surety. Iii) Petitioner shall not further transfer the cattle to anybody else. Without permission of this Court.
' Without moving application before the trial court, respondent No,3 Mst. Nooran Bibi filed revision petition which was accepted vide impugned order. It is evident from the record that a theft case was registered on the complaint of present petitioner. Stolen cattle were taken into possession by the 1.0 on pointation of accused Muhammad Abbas son of Nooran Bibi respondent No,3.
Description given in the recovery memo of the recovered cattle, tallies with the description given in the body of FIR. The learned Additional Sessions Judge in the impugned order mentioned that at the time of recovery of cattle, accused Muhammad Abbas son of Mst. Nooran Bibi was confined in jail in a murder case registered vide FIR No,620/2011 registered at Police Station Sadar Okara and was brought from Central Jail and after obtaining his physical remand, recovery of cattle was effected on his pointation. The reason that prevailed with the learned Additional Sessions Judge for accepting the revision petition was that Muhammad Abbas accused who was nominated in the FIR would not have kept the stolen cattle at his own Dera and that Mst. Nooran Bibi would be considered as last possessor of cattle in absence of her son who was confined in judicial lock up in the murder case. The above reasoning, however, is not in line with the facts of the case. The complainant who was victim, had lodged FIR in which he had given full description of the stolen cattle. FIR was got registered much before recovery of cattle on pointation of accused Muhammad Abbas who happened to be son of respondent No,3 Mst. Nooran Bibi and was also involved in criminal cases which fact has come on record as many cases of theft were registered against him.
7. Under Section 516-A, Cr.P.0 it is provided that "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. It is further provided under Section 517, Cr.P.C., that the Court, on conclusion of trial, may deliver stolen property to any person claiming to be entitled to possession thereof. Under Section 520, Cr.P.C. It is provided that "any court of appeal, confirmation, reference or revision, may direct any order under Section 517, Section 518 or Section 519 passed by a Court, subordinate thereto, to be stco4d pending consideration by the former Court, and may modify, alter or annul such order and make any further orders that may be just." Above referred provisions of Cr. P.C.
Reveal that during pendency of criminal case, temporary custody of case property can be given by the court to a person who is prima facie entitled 'thereto and on conclusion of trial, the court would make final order A regarding disposal of the property in question. The revisional court, during pendency of the case was, therefore, not competent to interfere in the order passed by the learned trial court. Reference in support of above view may be made to cases titled "Muhammad Shafi v.
Abdul Razak and 2 others" reported in (2003 YLR 324), "Mst. Gul Shan v. The State" (1971 PCr.LJ 1279), "Malik Saif Ullah v. Ch. Rehmat Ali, S.-I" (1993 M LD 542) "Haji Ghulam Kadir v. State" (1974 PCr.LJ 228) and "Mumtaz Akhtar v. State" (1977 PCr.LJ 168).
8. It is further to be noted that respondent No,3 Mst. Nooran Bibi had not approached the learned Illaqa Magistrate claiming to be owner of the cattle/buffalo which were taken in possession during investigation of the criminal case nor her claim was rejected by Illaqa Magistrate in the order dated 19.06.2013, hence there was no decision given by the court of first instance which could be challenged in revision by respondent No,3 Mst.Nooran Bibi. She could file a petition before learned Magistrate for cancellation of order dated 19.06.2013 with the prayer that the cattle belonging to her be returned to her by the police.
9. The cases cited by learned counsel for the respondent being distinguishable on facts, were not attracted to the case in hand. In the first cited case i.e, "Abdul Rashid V. Arshad Ali and 2 others" "
(2000 YLR 2619)", it was observed that investigating officer had come to definite conclusion that motor-car in question, had been taken into custody by local police and thereafter, police officials had facilitated petitioner to get forged transfer of registration prepared, showing the same to be in favour of petitioner--Revisional Court was, thus, quite justified in maintaining that petitioner was not entitled to get Spurdari of said motor-car. In the second case cited by learned counsel for the respondent i.e, "Mazhar All v. Ansar Ali and others" (2014 SCM R 1536), it was version of the petitioner that disputed buffalos belonged to his sister and that police forcibly took away the said buffalo from his house and prepared a false recovery memo of the same against his brother who was alleged to have stolen the buffalo and was accused in the FIR. After considering the respective contentions, it was observed that learned Judicial Magistrate granted Spurdari of the buffalo under dispute to the petitioner which finding was upheld by the learned revisional court finding no illegality in the said order. It was further observed that High Court merely on the statement of investigating officer that buffalo in question was already with respondent No,1 on Spurdari for the last about one year and that crime report lodged by respondent was found false and recommended for cancellation, granted Spurdari of the buffalo whereas fact of the matter was that there was nothing on record to show that case had been cancelled. In the above context order of the High Court was held to be passed on surmises and conjectures. It was further noted in the cited case that original buffalo which was stolen, had been sold out and with the money received from the sale of stolen buffalo, accused had purchased another buffalo which was given to the complainant on Spurdari whereas no evidence was available on record to show that disputed buffalo was purchased from the money gained through sale of the buffalo which was original case property.
10. In the light of the discussion made above, it is not difficult to conclude that respondent No,3 Mst.
Nooran Bibi could only approach the learned Illaqa Magistrate by filing proper proceedings claiming to be owner of disputed cattle and the learned Illaqa Magistrate, if so moved, could consider her claim and decide the matter after providing an opportunity of hearing to both the parties. The above mentioned course was not adopted by respondent No,3 in this case, hence, revisional court was not competent to set-aside the order dated 19.06.2013.
11. Consequently, this petition is allowed and impugned order is declared to have been passed without lawful authority and of no legal effect, hence, is set-aside.