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Criminal Appeal No. 666 of 1975, heard on 27th April 1976.
---S. 517‑Petitioner objecting to custody of recovered buffalo being given to respondent and claiming its custody on ground of its recovery from his dera and ownership‑Record, however, indicating recovery from possession of petitioner's father and belonging to respondent ---Petition, held, could not proceed, in circumstances‑Trial Court directed to decide issue before close of prosecution case.
Abdul Aziz Qureshi for Petitioner.
Bashir Ahmad Khan for Respondent No. 1.
Riaz Hussain Abbasi for A: G. for the State.
Date of hearing : 27th April 1976.
A buffalo was recovered from Anwar Ali father of the petitioner and a case under section 411, P. P. C. was registered against him at Police Station, Kupp, Multan. The learned Magistrate in the first instance on 17‑5‑1975, direct ed that the buffalo recovered from the accused be given on superdari to the "owner after verification to the satisfaction of the S. H. O. Kupp, Multan. The latter gave it in superdari to Ghulam Muhammad, the alleged owner. The buffalo was not produced before the Court. Order of superdari was cancelled but, subsequently, it was restored. The petitioner filed an application before the learned Magistrate asking for superdari to be given to him on the ground that he was the real owner. The learned Magistrate observed that "I am afraid at this stage the question of ownership cannot be decided and is not relevant in view of the fact that the case property has been recovered from one Anwar who incidentally does not claim the superdari of the case property. Sadiq Hussian, the petitioner who is a third person cannot be considered at all for the purpose of superdari. This is vide order dated 21‑7‑1975. Sadiq Hussain has challenged this order by means of a petition under section 435/439, Cr. P. C.
2. Learned counsel for the petitioner has submitted that the petitioner is an actual owner of the buffalo in question and that it was recovered from his house, though in the recovery memo. it has been stated that the buffalo was recovered from Anwar Ali, the father of the petitioner. The petitioner has 1P produced a copy of a receipt of purchasing the buffalo from Rehmatullah and Barkat Ali. A photostat copy of the receipt is placed on record as Annexure A'. The investigating officer is present with record and has stated that, during the course of investigation, Ghulam Muhammad, the complainant, has pro duced witnesses from the village where he resides that the buffalo belonged to him. On the other hand, Rehmat Ullah and Barkat Ali have also stated that they had sold a buffalo mentioned in Annexure A' to the petitioner.
3. Learned counsel for Ghulam Muhammad has submitted that the buffalo belonged to the later who is a villager and has reared the same. It was stolen from his dera and was, subsequently, recovered.
4. Learned counsel for the State has contended has the accused in the case who is nobody than the father of the petitioner is not appearing before the Court. Without recording evidence, it is not possible to say at this stage as to whom, the buffalo belongs.
5. After hearing the learned counsel for the parties, it appears that, this is a small case and that the learned Magistrate might as well dispose' of it at an early date. The petitioner can assist in the disposal of the case' by requesting his father not to be absent from the proceedings and the learned Magistrate may use his powers to see that the prosecution produces its evidence at the earliest opportunity. In these proceedings, it is no possible, nor, desirable to determine the ownership of the buffalo in question. The buffalo was not recovered from the petitioner. Therefore, in the circumstances, the petition cannot succeed. The learned counsel for the petitioner has submitted that whosoever may be the superdari of the buffalo; should be made responsible for its upkeep and be liable for loss, negligently incurred. This is obviously the duty of the superdari concerned.
6. Subject to the above observations, this petition is dismissed.
Petition dismissed
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