GHULAM HUSSAIN vs THE STATE and others

ORDER

' This petition under section '561-A, Cr.P.C. Has been moved by Ghulam Hussain, petitioner with the prayer that the order dated 23-7-2003 passed by learned Additional Sessions Judge, Hasilpur, District Bahawalpur, be set aside who had upheld the order dated 15-7-2003 passed by learned Special Judicial Magistrate, Hasilpur.

2. Brief facts, as emanate from the record and upon hearing the learned counsel for the parties, are that from the custody of the petitioner, two mares were taken into possession under section 550, Cr.P.C. By Riaz Ahmad, S.-I. Of Police Station Sadar, Hasilpur on 8-7-2003. Aforesaid Ghulam Hussain was granted time to produce proof of ownership of these mares by above noted Riaz Ahmad, S.-I.

Vide Report No,5 of even date of Roznamcha Police. In the meantime, one Muhammad Sajwar Khan applied to the Special Judicial Magistrate, Hasilpur through the police, for delivery of the custody of aforesaid mares allegedly belonging to him. The learned Special Magistrate, Hasilpur after receipt of report from the S.H.O., Police Station, Sadar, Hasilpur, directed the handing over of the custody of mares to him on 12-7-2003. A day after it, on 13-7-2003 Ghulam Hussain, petitioner produced receipt which displayed the purchase of aforesaid two mares in his favour before the police of above noted police station and a few respectables of the Illaqa also. Rapat No,6 to this effect was entered in Register of Rapat Roznamcha of the aforesaid police station. On 14-7-2003, S.H.O. Moved application before the learned Special Judicial Magistrate, Hasilpur in which he requested the learned Special Magistrate to review his earlier order dated 12-7-2003 and to direct the delivery of the possession of the aforesaid mares to Ghulam Hussain, petitioner/owner instead of Muhammad Sajwar Khan. Learned Special Judicial Magistrate turned down the request of Ghulam Hussain vide his order dated 15-7-2003. Aggrieved from this order dated 15-7-2003 passed by learned Special Judicial Magistrate, Ghulam Hussain filed Criminal Revision Petition No,25 of 2003 before learned Additional Sessions Judge, Hasilpur, which was dismissed on 23-7-2003 and the petitioner was directed to avail another proper remedy. Feeling aggrieved from this order dated 23-7-2003 the petitioner has moved this Court.

3. Lamentable state of affairs appears from the way, the case has been handled with. The owner of the mares has been deprived from his mares without any fault on his part, whereas a stranger has been inducted in and graced with the mares. The violation of right guaranteed under Article 24 of the Constitution of Islamic Republic of Pakistan, 1973 has occurred in. Non-comprehension of facts and the law on the subject has been allowed to be crept in.

4. It is an admitted fact that the disputed mares were taken into possession by the police under section 550, Cr.P.C. From the possession of Ghulam Hussain, petitioner. It is also an admitted fact that till today no first information report with regard to the alleged theft of the disputed mares has been lodged by Muhammad Sajwar Khan or anyone with the police or any complaint has been filed in any Court. In these circumstances learned Special Judicial Magistrate had no jurisdiction to grant the possession of the mares to Muhammad Sajwar Khan, who had no apparent claim with regard to the ownership of the mares in question. I am, therefore, astonished as to how tha learned Special Magistrate had granted the custody of the disputed mares to Sajwar Khan. When there was no allegation of theft levelled against the petitioner in any Court regarding mares through any legal proceedings, the impugned order dated 12-7-2003 passed by learned Special Judicial Magistrate was illegal. As the learned Special Judicial Magistrate had not bothered to grant an opportunity of hearing to Ghulam Hussain, petitioner from whose custody the mares. Were taken into possession by the police. Therefore, without notice and hearing and without pendency of any criminal proceedings, the order dated 12-7-2003 was illegal and coram non judice. This faulty order dated 12-7-2003 could have been corrected on 15-7-2003 by the grant of opportunity of hearing to both Muhammad Sajwar Khan and Ghulam Hussain, petitioner. But the learned Special Judicial Magistrate had dismissed the application of Ghulam Hussain without any lawful justification. The same attitude was adopted by the learned Additional Sessions Judge, Hasilpur while deciding the criminal revision, filed by petitioner, Ghulam Hussain. The mares had not been shown or proved to have been stolen or involved in any case of theft or any commission of theft. When such was the state of affairs, the proper course was to direct its return to the petitioner, from whose custody these mares were taken into possession. The precedents reported in Muhammad Yousuf v.

Muhammad Ramzan 1999 PCr.LJ 968; Awuwu Hamid Muhammad and 4 others v. The State 1999 M LD 1531 and Muhammad Saleem v. State 1992 PCr.LJ 750 can be referred to for the above noted proposition. Muhammad Sajwar Khan was to be directed, if he had pleaded or asserted any ownership with regard to these mares, to approach the proper forum and not the petitioner, Ghulam Hussain. Both the learned Additional Sessions Judge and the learned Special Judicial Magistrate by passing the impugned orders have transgressed the limits and adopted the procedure of deciding the civil dispute of ownership between Sajwar Khan and the petitioner, especially when the former had not lodged any report of theft of aforesaid mares with any police or complaint in any Court. The seizure of mares and taking those cattle into custody by S.-I. On 8- 7-2003 was not based on any legal foundational grounds. Power exercised under section 550, Cr.P.C. By the S.-I. Does not display the above board conduct of aforesaid official. Both the learned Courts below have failed to comprehend the Chapter XLIII of the Criminal Procedure Code, which has provided the provisions and the procedure for the disposal of property. Therefore, I accept this petition and ouash the impugned order dated 23-7-2003 passed by learned Additional Sessions Judge, Hasilpur in revision petition filed by Ghulam Hussain, petitioner (Ghulam Hussain v.

Muhammad Sajwar Khan, etc.) whereby' orders dated 12-7-2003 and 15-7- 2003 passed by Special Judicial Magistrate, Hasilpur were upheld. Consequently it is ordered that the custody of the aforesaid mares be returned to Ghulam Hussain, petitioner. If Muhammad Sajwar Khan, respondent No,2 has any claim with regard to the ownership of these two mares, he is at liberty to move the proper Court for resolution of ownership dispute.