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Criminal Miscellaneous No.87-Q of 1984, decided on 8th July, 1985.

---Ss.561-A & 516-A--Penal Code (XLV of 1860), Ss.380/411--Applica tion for quashment of order of Magistrate rejecting prayer for Superdari of case property--Magistrate, rejecting prayer, directed parties to get title of case property decided by civil Court--Civil Court deciding title of property--Accused petitioner directed to repeat their application before Magistrate, if so advised.

Raja Muhammad Sabir for Petitioner.

Hamid Ali Mirza for the State.

Date of hearing: 8th July, 1985.

The facts giving rise to this petition briefly are that Mst.Rasulan Bibi petitioner No.3 was married to Muhammad Yar respondent No.2. The relations between them became strained. Therefore, petitioner No.3 was deserted by Muhammad Yar respondent No.2. Muhammad Yar also got a case under section 380/411, PPC registered at Chak Jhumra against Ahmad Yar, the father of Mst.Rasulan Bibi and others on the allegations that his ornaments were 'stolen away by them from his house. During investigation of that case, the Police recovered ornaments which were given on Superdari to Muhammad Yar respondent No. 2.

2. The case of the respondent was found false during the investigation and was cancelled by the Magistrate vide his order dated 15-8-1982. Ahmad Yar petitioner No.1 moved application for the cancellation of Superdari before Illaqa Magistrate, Faisalabad. The Magistrate summoned respondent No.2 and directed him to produce ornaments in the Court but he did not comply with the order. Consequently a case under section 406, PPC was registered against him at Police Station Chak Jhumra under the orders of the Magistrate.

The police recovered ornaments from respondent No.2. The ornaments were kept in the 'Malkhana'. Ahmad Yar petitioner No.1 then moved application for Superdari of ornaments.- The application was dismissed by the Magistrate on 12-2-1983. The parties were directed to seek declaration of ownership of the ornaments from the civil Court. Feeling aggrieved of this order, Ahmad Yar and others filed revision before the learned Sessions Judge, Faisalabad who dismissed the same on 14-2-1984. The learned Sessions Judge stated in his order that:

"In these circumstances, the trial Magistrate was justified to refer the parties to go to the civil Court to declare their title to the ornaments in question. The order of the learned Magistrate dated 12-2-1983, therefore suffers from no illegality and is thus quite lawful and is maintainable." Hence this revision.

3. The learned counsel for the petitioners submitted that-since the case under section 380/411, P.P.C. lodged by Muhammad Yar respondent has been cancelled and the civil suit filed by him for declaration to the effect that he 'was the owner of the disputed ornaments has been dismissed, therefore, the ornaments may be given on superdari to the petitioner.

4. ' I have considered the arguments advanced by the learned counsel for the parties with care. I find that in the peculiar circumstances of the case there was no option for the Magistrate but to give direction to the parties to get their title determined 'by the civil Court and as such no exception can be taken to the impugned orders. Since the civil Court has by now decided the suit filed by respondent for declaration to the effect that he was the owner of the ornaments therefore, the petitioners may repeat their application for Superdari of the ornaments before the learned Ilaqa Magistrate if so advised. In case the application is moved before him, the learned Magistrate shall decide the same in accordance with law.

M.Y.H./A-158/L Order accordingly.

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