The petitioners herein who belong to village Tallianwala (Dakhli Hussain Garh), Tehsil Okara, are basically labourers but they also sell the milk of their buffaloes.
2. One Anwar Bhutta of village Lundianwala got registered a case at Police Station Renala Khurd in May, 1984 regarding the theft of jewellery and clothes worth Rs.23,500. He named one Mst. Kubra, her two brothers Jafar and Aslam and also Shamma petitioner No. 2 herein, as suspects. Another case under section 380/457, P.P.C. Regarding the theft of a bicycle was also got registered at Police Station Renala Khurd in August, 1984 by one Hidayatullah. In the latter case Umar son of Nawab petitioner, Sadiq and their two relations were suspected.
3. On 20-9-1984, Noor Ahmad, the then A.S.I. Police Station Renala Khurd seized 21 heads of cattle including buffaloes and their kids belonging to the petitioners under section 550 of the Code of Criminal Procedure. These cattle were not returned to the petitioners for quite sometime. They, therefore, moved an application before the Ilaqa Magistrate on 4-10-1984, for seeking a direction to the police to deliver the aforesaid cattle to the petitioners, which were wrongfully seized from their possession. The learned Magistrate obtained a report from the S.H.O., Police Station Renala Khurd.
The A.S.I. Reported that these cattles were seized on 20-9-1984, under section 550 of the Code of 'Criminal Procedure, as the same were suspected to be stolen property but thereafter no person came forward to claim the ownership of these cattle and it transpired as a result of investigation that the cattle in fact belonged to the petitioners. The A.S.I. And the S.H.O., therefore, submitted that they had no objection to the cattle being given on Sapurdari to Nawab, etc. The petitioners. An order was passed by the learned Illaqa Magistrate on 8-10-1984 that the cattle be returned to their owners on Sapurdari to the satisfaction of the S.H.O. It is alleged by the petitioners that they approached the S.H.O. With the aforesaid order, dated 8-10-1984, passed by the learned Magistrate but he declined to comply with the same. Consequently, they filed the present Constitutional petition praying that this Court might direct the S.P., Okara, S.H.O.; Police Station Renala Khurd and the Ilaqa Magistrate, Renala Khurd to return the aforementioned cattle to the petitioners in compliance with the order passed by the Ilaqa Magistrate on 8-10-1984.
The aforementioned police officers took up the plea that in fact the petitioners did not approach the local police or the S.P. For return of cattle to them in compliance with the order passed by the Ilaqa Magistrate and that in the meantime seven other persons who have since been arrayed as respondents 4 to 10 came forward and claimed seven buffaloes to be their ownership. On their statements theft cases were registered, and the buffaloes were given to these respondents 4 to 10 on Sapurdari under the orders of the Ilaqa Magistrate.
4. It is really fantastic that respondents 4 to 10, who belong to district of Lahore, Sahiwal and Okara got registered seven cases of theft on the same day i.e. 26-10-1984, within a shirt duration of an hour and a half before Noor Ahmad A.S.I. Who happened to be present at the bus-stand of Renala Khurd. Such a co-incidence that seven complainants belonging to different districts would per chance assemble at the bus-stand and get their cases of theft registered before the A.S.I. Cannot be conceived of.
5. Without prejudice to the merits of the seven theft cases got registered by respondents 4 to 10, it may be observed that about the return of the cattle in question, a lawful order passed by a Court of competent jurisdiction was already in the field. This order, dated 8-10-1984, should have been given effect to and in the presence of this order, the learned Ilaqa Magistrate, had no jurisdiction to pass a fresh order of Sapurdari in supersession of the order, dated 8-10-1984. The lawful course which should ordinarily have been followed by the respondents was to return the cattle to the petitioners in compliance with the order, dated 8-10-1984. Thereafter, if new theft cases were registered they could deal with the stolen property in accordance with law.
Needless to add that 14 heads of cattle have already been returned by respondents 1 to 3 to the petitioners in compliance with this Court's order, dated 20-11-1984 and regarding the remaining seven buffaloes which have been given on Sapurdari to respondents 4 to 10, the matter has been heard today. As already observed, the order of Sapurdari subsequently passed by the learned Magistrate in favour of respondents 4 to 10 is illegal inasmuch as this order has been passed in supersession of the earlier order of Sapurdari which could not be superseded or cancelled by the learned Magistrate himself.
6. The original seizure of the cattle in question under section 550, Cr.P.C. In the circumstances of the present case was certainly uncalled for and is not supportable by the provisions of section 550, Cr.P.C. Under the said provisions a police officer may seize any property which may be alleged or suspected to have been stolen or which may be found under circumstances which create suspicion of the commission of any offence. In the present case, the two cases registered against one of the petitioners or their relatives related to theft of household effects and there was no allegation of any cattle having been stolen. Moreover, under section 523, Cr.P.C. Seizure by any police officer of property alleged or suspected to have been stolen or found under circumstances which create suspicion of the commission of any offence, is required to be reported fort with to a Magistrate having jurisdiction in the area. Admittedly the seizure in the present case has never been reported by the police, to the Ilaqa Magistrate. Apart from the question of seizure being illegal or in violation of the provisions of section 523, Cr.P.C., the respondents were bound to comply with the order passed by the Ilaqa Magistrate whereby he ordered the return of the cattle to the petitioners. The non-compliance of the order of the Magistrate on the part of the respondents is illegal. In Mian Faiz Ahmad v. The State and another 1970 P Cr. L J 1235 it was held that a Magistrate ounce having made an order regarding Sapurdari under section 523, Cr.P.C. Was left with no jurisdiction to cancel his own earlier order. In the present case the subsequent order of. Sapurdari in favour of respondents 4 to 10 was passed without affording an opportunity of hearing to the petitioners. The subsequent order is, therefore, unlawful on this short ground alone.
7. In the light of the foregoing conclusions, the Constitutional petition is allowed and the remaining seven cattle wrongfully given on Sapurdari to respondents 4 to 10 are directed to be returned to the petitioners. It is further ordered that respondents 1 to 3 shall bear the costs of this Constitutional petition.
S. G. D.Writ issued.