REHMATULLAH vs MUHAMMAD QADEER and anothers

' MUNIR A. SHEIKH, J.---This petition is directed against the judgment dated 9-6-2000 of the Lahore High Court through which Criminal Revision No,175 of 2000 filed by respondent No,1 against the order dated 15-2-2000 passed by the learned Additional Sessions Judge/trial Court of recalling of his earlier order dated 22-11-1999, has been accepted and the said order set aside, restoring the original order dated 22-11-1999.

2. The facts of the case are that the petitioner lodged an F.I.R. Under sections 10/11/16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and section 380, P.P.C. Against respondent No,1 and his wife. It was also alleged in the F.I.R that the said accused persons had also taken away an amount of Rs,1,43,000 alongwith them. The trial Court passed an order for ' Superdari' of the said amount of. Rs,1,43,000 recovered from the accused persons who claimed that the said amount was their as the same had been planted on them after recovering of the same from their parents which plea was not accepted while deciding the application of ' Superdari'. Muhammad Shafique son of Abdur Rehman stood surety for the petitioner in connection with the said Superdari'. The petitioner was time and again called upon by the trial Court to produce the said amount as case property but he failed to do so and ultimately on 22-11-1999, it (trial Court) proceeded to pass an order for cancellation of 'Superdari' of the petitioner and directed the S.H.O. To recover the said amount from his surety which order was passed in the absence of the petitioner and his surety and without issuing them notice to show cause against the proposed order of cancellation of 'Superdari'.

3. On 15-12-1999, the petitioner moved an application for recalling of order dated 22-11-1999. It was stated that he had in an accident got broken his legs and was under treatment and in order to save his life was to spend the money. He stated that the order dated 22-11-1999 for cancellation of 'Superdari' may be recalled and he may be exempted from the production of amount in the Court on every date of hearing.

4. The learned Additional Sessions Judge/trial Court after having been satisfied passed order dated 15-12-1999 for recalling order dated 22-11-1999 and exempted the petitioner from producing the money in the Court or depositing the same in the trial Court till the disposal of the case which order was challenged by respondent No,1 before the High Court through Criminal Revision Petition No,175 of 2000, which has been accepted. Through the impugned judgment dated 9-6-2000, on the main ground that after having passed order dated 22-11-1999, the trial Court had no jurisdiction to recall it.

5. Learned counsel for the petitioner submitted that in the case of cash amount, the concept of '

Superdari' was not strictly applicable as was applicable in the case of other immovable property such-like car, etc., because the same currency notes could not be retained till the disposal of the case for indefinite period. The petitioner was at the most liable to produce the money at the time of final disposal of the case if it was found that the same belonged to respondent and had not been stolen. Learned counsel also submitted that since the order dated 22-11-1999 for cancellation of 'Superdari' was passed without issuance of notice of show cause to the petitioner or his surety and without affording them opportunity of hearing, therefore, it was void, ab initio being violative of not only the law but also principle of natural justice, as such, the trial Court was bound under the law to recall the same and there was no lack of jurisdiction and the High Court has proceeded on wrong legal assumption that the trial Court stood divested of the powers to recall the earlier order in the circumstances of this case.

6. The arguments of learned counsel for the petitioner have considerable force. Order dated 22-11- 1999 having been passed without providing opportunity of hearing to the petitioner and his surety as regards cancellation of 'Superdari', therefore, was void ab initio and could be recalled on reconsideration after hearing the petitioner, therefore, no illegality is attachable to the order dated 15-12-1999 which is not only just and proper but also correct in the facts and circumstances of this case.

7. For the foregoing reasons, we convert this petition into appeal, the same is accepted, judgment dated 9-6-2000 of the Lahore High Court is set aside and that of the trial Court dated 15-12-1999 restored with the modification that the petitioner and his surety would furnish additional bond before the trial Court binding themselves to produce the amount of Rs,1,43,000 at the time of final disposal of the case if it is found that it was not the stolen property of the petitioner but belongs to the respondent.