' SHAHNAWAZ TARIQ, J.---This conunon order will dispose of .Criminal Revision Application No,67 of 2015 filed by applicant Loung Gopang and Criminal Revision Application No,61 of 2015 filed by applicant Mohammad Hayat Suhag, as the same have been filed against the orders passed by the Court of learned Additional Sessions Judge, Kandiaro, whereby their applications for restoration of the custody of buffaloes, were declined.
2. The relevant facts spelt out from criminal revision application No, S-67 of 2015, are that applicant Loung Gopang lodged FIR No,2 of 2015 under sections 395, 337-H(2), P.P.C. At Police Station Tagar, District Naushehro Feroze on 07.03.2015, at 0900 hours, stating therein that complainant owns cattle and on fateful day, he was grazing his cattle near Muqam of Mullan Hameed at about 7:00 a.m., when accused Ashique Hussain armed with pistol along with 4 other accused persons with open faces, out of them, 2 culprits were armed with guns and 2 with pistols, reached there. The culprits on gun point robbed his cattle and took away the same towards river side. Applicant raised cries which attracted PWs Haji, Abdul Karim and Bachal and other villagers to whom he narrated the above incident and they took their licenced weapons and chased the culprits by riding motorcycles. Applicant in the meantime informed Taggar poliGe through phone about the incident, and police party headed by HC Sher Mohammad Sahito along with two police constables also accompanied complainant party and they intercepted the culprits near river. The culprits made aerial firing and in retaliation, complainant party also fired gun shots and accused persons seeing the police party, left the cattle and fled away by taking the advantage of forest. Police took over the custody of said cattle and brought the same at Police Station where complainant lodged instant FIR.
3. The relevant facts narrated by applicant Mohammad Hayat in Criminal Revision Application No,S-61 of 2015, are that on 07.03.2015, at about 6:00 a.m. Police of District Naushehro Feroze boarded in 10/12 police mobiles raided the houses of applicant and others and maltreated them and forcibly taken away 16 buffaloes, 10 goats, Rs,15000/- cash and other valuable articles. Police also arrested 5 persons namely Abdul Rasheed, Bashir, Abdul Majeed, Aijaz and Ashique Hussain all by caste Suhag, whereupon they raised cries which attracted Ghulam Nabi Pahi, Rafique Depar, Mohammad Essa and Muhbat Ali Khoso but police took away the cattle and other articles.
4. Applicant Loung filed application under Section 516-A Cr.P.C. Before the Court of Sessions Judge, Naushehro Feroze vide Criminal Misc. Application No,12 of 2015 which was disposed of vide order dated 30.05.2015 directing the parties to approach the competent Civil Court to resolve the controversy of ownership of buffaloes. Subsequently, applicant Mohammad Hayat Suhag also filed Criminal Misc. Application No,61 of 2015 before the same Court for restoration of the custody of buffaloes under section 516-A, Cr.P.C. Which was also disposed of vide order dated 13.06.2015, with same directions to approach the concerned Civil Court. Consequently, both applicants have challenged the above referred impugned orders separately by filing criminal misc. Applications mentioned supra.
5. Mr. Bakhshan Khan, learned counsel for applicant Loung .Vehemently contended that he is owner of 5 buffaloes which were snatched by accused Ashique Hussain Suhag and his companions on gun point from applicant who instantly informed the police as well as his village people and they followed the accused persons and interrupted them near bank of river. He further contended that accused Ashique Hussain was arrested and Challan has been submitted before the concerned Court. He emphasized that applicant being owner of the cattle moved application for handing over the temporary custody of his buffaloes till disposal of the case, which was malafidely resisted by 'respondent Mohammad Hayat only to save accused Ashique Hussain from the, consequences of criminal case, and learned trial Court without considering the circumstances properly, had directed the parties to approach the. Concerned Civil Court for determination of ownership of the said buffaloes. He further contended that respondent Mohammad Hayat has neither lodged any FIR nor made any complaint to any higher authority regarding the alleged highhandedness of police immediately but later on filed a Constitution Petition before the High Court of Sindh Circuit Court at Larkana but no any order was passed by the Court in this regard. He also urged that it is not possible to take away 26 animals including 10 buffaloes in police mobiles from across the river considering the distance of village of applicant Hayat from Police station Naushehro Feroze, therefore, the temporary custody of the buffaloes may be handed over to applicant Loung for'safe.Ty and proper care of his buffaloes.
6. While controverting the above submissions, Mr. Achar Khan Gabole, learned Counsel for applicant Mohammad Hayat has contended that on 07.03.2015, in the morning a heavy contingent of police raided the house of applicant and others and maltreated their family members and taken away buffaloes, goats, cash and other valuables with them. He further contended that cattle of the applicant are lying at Police Stations Taggar and Tharo Shah. He further urged that applicant Loung has 'lodged FIR with mala fide intention with the support of political persons. He further emphasized that applicant filed Constitution Petition No,313 of 2015 which is still pending before IIigh Court of Sindh Circuit Court, Larkana, but no order has been passed in the said petition. He further submitted that applicant Mohammad Hayat being the owner of buffaloes, is entitled for restoration of custody of 5 buffaloes.
7. Mr. Syed Sardar Ali Shah, learned APG contended that applicant Loung, has lodged FIR immediately after the incident and recovered 5 buffaloes which were brought at police station within two hours, while it is not possible to bring 26 animals from the village of applicant Hayat within 2 hours at police station Naushehro Feroze. However, he candidly supported the impugned orders and submitted that both parties may be directed to seek declaration of ownership of 5 buffaloes from the concerned Civil Court.
8. Perusal of the material available on record and consideration of arguments advanced by learned Counsel for the parties emanate that both parties are claiming to be the owners of 5 buffaloes which are in the custody of Naushehro Feroze police. Indeed, the alleged incident occurred on 07.03.2015, at 07:00 a.m. And applicant Loung lodged FIR No,2 of 2015, at 9:00 a.m. On the same day. In said FIR, a specific role has been assigned to the nominated accused Ashique Ali Suhag and incident was witnessed by the eye-witnesses and after completion of investigation, case has been Challaned before the concerned Court and accused Ashique has been facing his trial. It is also pertinent to mention that applicant Mohammad Hayat is residing within the jurisdiction of Police Station Dadu which is across the river Indus, while accused Loung is residing within the jurisdiction of Police Station, Naushehro Feroze and allegedly 5 buffaloes were recovered near from the bank of river within the jurisdiction of Police Station, Naushehro Feroze and same were brought within 2 hours at said police station.
9. Respondent No,2 SHO Police Station Taggar filed statement dated 06.07.2015 and denied the allegations leveled by applicant Muhammad Hayat regarding detaining his animals and narrated the relevant facts reproduced criminal record of accused party. The relevant paras are reproduced as under:- "2. That on 07.03.2015, AS! Muhammad Patyal Kato of PS Taggar arrested the nominated accused Ashique Hussain Suhag. During Course of interrogation undersigned recovered weapon of the offence viz pistol from the arrested accused and lodged a separate case Vide crime No,3 of 2015, under section 24, Sindh Arms Act, 2013, at PS Taggar. After usual investigation both cases were challaned in the Court of law.
4. That the applicant's father Dhani Bux, brother Azam, arrested accused Ashique Hussain, his brothers and other relatives are criminal type persons and are involved in following series of cases hence the applicant is in habit to file applications/CPs in order to save his criminal type relatives from clutches of law:-- i. FIR No,40/ 1999, under sections 324, 323, 147, 148, 504, 114, P.P.C., P.S. Mehar. ii. FIR No,111/2007, under sections 302, 147, 148, 149, 504, P.P.C., P.S. Mehar. iii. FIR No,172/2007, under sections 337-A(i), 147, 148, 149 P. P. C., P.S. Mehar. iv. FIR No, 272/2007, under section, 324, 147, 148, 149, P.P P. C., P.S. Mehar. v. FIR No,17/2009, under section, 302, 324, 148, 149, P.P.C., P.S. Mehar. vi. FIR No,05/ 2004, under sections 382, 457, 215, P.P.C. & 14 11.0, P.S. Mehar. vii. FIR No,18/2009, under sections 302, 324, 148, 149 P.P.C., PS Mehar. viii. FIR No,159/ 2012, under sections 324, 353, 402, 399, 427, 34, P. P. C., P. S. Mehar. "
10. Undoubtedly., applicant Mohammad Hayat has neither lodged any FIR after the alleged occurrence nor approached the concerned Justice of Peace for lodgment of FIR nor filed any direct complaint before the concerned Court regarding the highhandedness of the police. However, he filed Constitution Petition No,313 of 2015 against 8 police officers and others which is still sub judice before the High Court of Sindh, Circuit Court at Larkana and till date no order has been ...Passed in the said petition. SHO Police Station, Taggar vide the above referred statement has categorically stated that applicant Mohammad Hayat's father Dhani Bux, his brother Azam, arrested accused Ashique Hussain and his other relatives are Criminal type of persons and they are involved in 8 criminal cases and he also filed photostat copies of said FIRs, In the case of A. K. A. R. A. .Chettyar v.
Ma Saw Hla, AIR 1937 Rangoon 450, it was observed as under:-- "Where the known facts plainly show that the property has been stolen, it would be intolerable to allow the person in whose possession the property is found to retain it as against the rightful owner and force the latter to a civil suit for its recovery if the accused absconds. "
11. It is significant to mention that in both impugned orders, the Court of learned Additional Sessions Judge, Kandiaro, had directed both the parties to approath the concerned Civil Court for seeking declaration regarding the ownership of above 5 buffaloes, Indeed, learned trial Court has not examined the peculiar circumstances of the instant controversy judiciously but he seems to be influenced from mere the claim raised by The applicant Muhammad Hayat. Undeniably, in our villages, people do not maintain any documentary record regarding the sale and purchase of animals, therefore, it would not be possible for both the parties to establish their right of ownership by producing any documentary proof or tangible evidenced regarding 5 recovered buffaloes.
Conversely, applicant Loung had lodged FIR No,2 of 2015 instantly with Police Station Naushehro Feroze and one accused Ashique Hussain was arrested and after submission of Challan, he has been facing trial before the .Concerned trial Court. It is worthwhile to mention that it is incumbent upon the trial Court to examine the claims raised by the parties, in juxtaposition while deciding application for restoration of seized property as temporary custody till final decision of the criminal case and Court should not be influenced mere raising any objection by the 'accused or any objector in absence of any solid legal substance.
12. As the sequel of the above discussion of the facts and circumstances, both impugned orders passed by learned Additional Sessions Judge, Kandiaro being devoid of legal merits stand recalled and 'set aside. Consequently, Criminal Revision Application No,67 of 2015 stand allowed and the temporary custody of above 5 buffaloes is handed over to applicant Loung under Section 516-A, Cr.P.C. On furnishing solvent surety in the sum of Rs,5,00,000/- (five Lacs) and PR bond in like amount to the satisfaction of the learned trial Court. It is also made clear that applicant Loung will neither sell nor dispose of any buffalo till final disposal of the subject criminal case and in case of death or any damage caused to any of the buffaloes, he shall inform the learned trial Court instantly and the Court will pass appropriate orders in this regard. However, applicant Muhammad Hayat is at liberty to avail the legal remedy by filing appropriate proceedings before the competent forum, if he is so advised.
13. For the facts and reasons referred supra, Criminal Revision Application No,61 of 2015 filed by applicant Mohammad Hayat and Criminal Revision Applicant No,67 of 2015 filed by applicant Loung Gopang stand disposed of in the above terms.