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Petition for Special Leave to Appeal No. 220 of 1973, decided on 10th October 1973.

(On appeal from an order of the Lahore High Court, made on the 1st of June 1973, in Criminal Miscellaneous No. 1211/B of 1973).

‑‑‑ Ss. 516-A & 517‑Custody of case property‑Case property entrusted on superdari‑Superdar continues under obligation to produce it in Court as and when required‑Superdari continues as long as to property not disposed of in terms of S. 517‑Mere recommendation of police for cancellation of case‑Does not automatically put superdari to end and entitle superdar to retain property as of right.

Sh. Muhammad Shafi, Senior Advocate instructed by S. Wajid Hussain,

Advocate‑on‑Record for Petitioner.

M. A. Bajwa, Advocate instructed by Abdul Karim, Advocate‑on‑Record for Respondent No. 1.

Nemo for Respondent No. 2.

Date of hearing : 10th October 1973.

.‑The connection with the theft of a tractor, a first information report was registered by the petitioner Khan Muhammad on 16‑1‑1972 against the respondent Mohammad Abdullah and others. During, the investigation of the case, both the parties applied to the Assistant Commissioner, Okara, for receiving the tractor on superdari, hot the applications were dismissed by the learned Magistrate on 16‑2‑1972. There upon; the parties filed revision petitions which were disposed of by a learned Single Judge of the Lahore High Court by his order dated the 10th of April 1972, directing that during the pendency of the case, the tractor be entrusted to the respondent, Mohammad Abdullah. That order was challenged by the present petitioner in this Court by means of Criminal Petition No. 90 of 1972, but leave was refused on the 28th of June 1972.

In the meantime, the petitioner filed a private complaint in the Coin of a local Magistrate on 9‑5‑1972, on the ground that no effective action had been taken by the Police on the first information report lodged him. It was stated at the Bar, on behalf of the respondent, that the who had reported to the Magistrate for the cancellation of the case arising out of the F. I. R. dated the pith of January 1972, but it was not known whether the Magistrate had accepted the report. However, it was asserted that tug police case is not now proceeding in the Court. The petitioner applied to the High Court for a review of its order dated the 10th of April 1972, he the prayer was rejected by the learned Judge on 1‑6‑1973.

Special leave to appeal is now sought from this latest order of the, High Court on the ground that the respondent is abusing his position us a superdar by not producing the tractor at the hearing of the case, the result that the prosecution evidence cannot be recorded. It is submitted that the case had to be adjourned at least on three occasions, viz, the 20th of March 1973, the 11th of April 1973, and the 17th of April 1973 on this account. It is contended that by his conduct the respondent had disentitled himself to retain the custody of the stolen tractor.

Mr. M. A. Bajwa, advocate, who has entered a caveat for the respondent submits that the case arising out of the F. I. R. having been sent up for cancellation, the superdari made in that case is no longer operative, and, therefore, the respondent is under no obligation to produce the tractor during the trial of the complaint case initiated by the petitioner.

There is no merit in the position taken up on behalf of the respondent. It is clear that the case property having been entrusted to the respondent, he continues to be under an obligation to produce it in Court as and which required, until such time as a proper order is made by the Court concerned in terms of section 517 of the Code of Criminal Procedure regarding the final disposal of the tractor. The mere fact that the police has recommended', the cancellation of the case registered on the 16th of January 1972 does not mean that the superdari made in favour of the respondent has automatically come to an end, and he has become entitled to retain the tractor as of right. It is clear that the respondent continue to be under a legal obligation to produce the tractor in the trial Court as and when required to do so.

In the circumstances, we are of the view that while no justification is made out fur granting special leave to appeal against the latest order of the High Court, we would like to observe that the respondent must produce the tractor in Court as and when required, and that his failure to do au shall retied him liable not only to cancellation of the superdari but such penal action ay may be admissible under the law. The trial Court is clearly competent to pass the necessary order in this behalf, even though the superdari may have been directed by the High Court acting in revision.

The petition is, therefore, dismissed with these observations.

Petition dismissed

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