' The relevant facts are that case F.I.R. No,146/88 was registered at Police Station Lalian on 27-5- 1988 under sections 406 and 420, P.P.C. On the report of Shera respondent on the allegations that he had delivered golden ornaments to Liaqat Ali, Rafique and Amanat for their renovation but they misappropriated the same. He further alleged that they had also cheated other persons in the same manner.
2. Another case F.I.R. No,9/91 was also registered at Police Station Lalian on 28-1-1991 under sections 406 and 420, P.P.C. 'on the report of Mst. Jallan respondent against Mst. Sardaran, Liaqat Ali, Rafique and Amanat All etc. On almost the same allegations.
3. It is stated that on 4-2-1989, Shera and Mst. Jallan respondents produced buffaloes and cows alongwith their young ones before the police disclosing that the accused had delivered them in pursuance of a 'Punchayat' decision in lieu of the gold ornaments entrusted to them.
4. Shera and Mst. Jallan respondents submitted applications to R.M., Rabwah for the Superdari of the cattle in question which were accepted and in consequence, the cattle were delivered to them on Superdari.
5. Haq Nawaz petitioner submitted an appliction to R.M., Rabwah contending that the said cattle were owned by him and that the police had illegally recovered them as case property and that he not being the accused of the case of misappropriation was entitled to their custody. Rafique and Liaqat All also moved a separate application contending that the police had recovered the cattle from their house and they had never given the same to Shera and Mst. Jallan in pursuance of any 'Punchayat' decision. Their plea did not find favour with the learned R.M. Who dismissed their applications on 27-4-1989.
6. Feeling aggrieved, Haq Nawaz and Liaqat All etc. Filed Criminal Revisions Nos.18 and 19/CR of 1989 in the Court of the learned Additional Sessions Judge, Chiniot who dismissed the same on 19-8- 1989.
' Hence this writ petition.
7. It is contended that the cases against the petitioners under sections 406 and 420, P.P.C. Are based on absolutely false allegations and pertain to an incident allegedly taking place as back as 1985. It is further stated that Asghar Ali, Inspector/S.H.O. Police Station, Lalian, District Jhang had raided the house of the petitioners on 4-2-1989 and took away five buffaloes and three calves belonging to Haq Nawaz petitioner and a cow and ralf belonging to Liaqat Ali and Rafique petitioners and handed them over to Shera and Mst. Jallan respondents. It is added that Writ Petition No,2321 of 1989 was also filed for getting a case registered against the S.H.O. And other police officials. In order to legalize his illegal raid, the S.H.O. Approached Resident Magistrate, Rabwah and got the order of delivery of cattle on Superdari in favour of Mst. Jallan and Shera.
8. It is further contended that the cattle could not be seized by the police as those were not the case property as the case pertained to a fraud about ornaments.
9. Learned counsel for the respondents contends that writ petition is not competent against an interim order of Superdari.
10. Admittedly the impugned order of Superdari was passed by Resident Magistrate, Rabwah under section 516-A, Cr.P.C. Which provides that:-- "When any property regarding which any offence appears to have been committed, or appears to which have been used for the commission of any offence, is produced before any Criminal Court during any inquiry or trial, the Court make such orders as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial. ... "
' The question that falls for determination in this case is as to whether the cattle in question were the case property and any offence had been committed in their respect. As per prosecution allegations, the accused had deprived them of their golden ornaments. In the F.I.R. No,146/88 registered at the instance of Shera, there was absolutely no mention of any cattle or any Tunchayar decision. According to the S.H.O. Police Station, Wiwi, the cattle were not recovered by the police but they had been produced before them by Mst. Jallan and Shera which he took into possession under section 550, Cr.P.C. Their seizure under section 550, Cr.P.C. Is also subject to serious challenge, for, that section empowers the police to seize property, suspected to be stolen.
The cattle in question were never alleged to be stolen.
11. It is regretfully noted that the learned Resident Magistrate, Rabwah did not properly decide the question of Superdari and failed to take notice of the relevant provisions of law on the subject.
Before passing the order of Superdari of cattle, he was required to satisfy himself that they were the case property and the circumstances under which they were seized by the police and who was entitled to their custody but he carelessly handled the matter. The learned Additional Sessions Judge who disposed of the revision petitions also did not do better and avoided to go to the root cause of the matter and confirmed the order passed by the lower Court in a slipshod manner.
12. Consequently, I accept the writ petition, declare the impugned orders to be unlawful and of no legal effect and set aside the same. The matter is remanded to the learned Resident Magistrate, Rabwah for the passage of a fresh order. He shall afford a reasonable opportunity to the parties of presenting their view points before the disposal of the matter. Needless to say that none of the observations, made above, will prejudice him.
Writ .