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Petition for Special leave to Appeal No. 42 of 1968, decided on 14th March 1968.
(On appeal from the order of the High Court of West Pakistan, Lahore, dated the 24th January 1968, in Criminal Miscellaneous No. 275 of 1968).
, Ss. 491 & 439‑Police seizing 30 heads of cattle from A on suspicion that they were stolen and detaining A in custody‑‑S claiming 6 animals to be his and Magistrate handing over 6 animals to S on Superdari‑Mean while A filing habeas corpus petition under S. 491 for his release -Single Judge of High Court releasing A and simultaneously ordering all recovered animals to be placed in Superdari of A‑Petition for Special Leave to Appeal to Supreme Court by S 'On ground that High Court was not justified in passing any order in respect of custody of cattle inasmuch as no prayer to that effect was made in petition under S. 491‑‑Held: High Court under S. 4.39 has jurisdiction to pass under‑‑‑Special leave refused.
Aftab Farrukh, Advocate Supreme Court instructed by M. Sarjees Nagi, Attorney for Petitioners.
Nemo for Respondents.
Date of hearing: 14th March 1968.
In this case some 30 heads of cattle were seized from the possession of Amir, the second respondent, by a Sub‑Inspector of Police merely on the suspicion that they may be stolen property. After the recovery the petitioners claimed 6 heads of cattle, oat of the 30 recovered by the Police, as their property and alleged that the v had been stolen from their possession. The petitioner, however, bad lodged no report to the Police prior to the recovery. A learned Magistrate handed over these 6 beads of cattle to the petitioners on superdari. The respondent, in the meantime, was alleged to have been detained illegally by the Police. On a petition being filed under section 491 of the Code of Criminal Procedure on his behalf in the Highs Court he was brought up from Police custody and released by an order of a learned Single Judge. At the same tune it was directed by the learned Single Judge that the recovered animals should be placed in the superdari of the second respondent pending further investigation. From this order the petitioners seek special leave to appeal.
Mr. Aftab Farrukh, on behalf of he petitioners, has contend ed before us that there was no prayer far relief in respect of custody of the cattle in the application, made under section 91 of the Code of Criminal Procedure of behalf of the second respondent and he learned Single Judge, therefore, exceeded his jurisdiction in ordering that the recovered animals should be Placed in the superdari of the respondent. Secondly, it is argued that if any such order had to be passed a notice should have been given to the petitioners and they should have been heard.
Technically perhaps learned counsel may be right in suggesting that it would have been proper to give a notice to the petitioners before passing the impugned order in respect of the cattle. We are not, however, impressed by this technical point in the circumstances of this case. The order in question was within the jurisdiction of the learned Judge under section 439 of the Code of Criminal Procedure. We are not, therefore, disposed to interfere in the matter and dismiss the petition. If so advised, the petitioners can even now apply to the High Court for possession of the six heads of cattle claimed by them.
Leave refused.
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