2001 S C M R 795

 
[Supreme Court of Pakistan]
 
Present: Munir A. Sheikh and Iftikhar Muhammad Chaudhry, JJ
 
REHMATULLAH---Petitioner
 
versus
 
MUHAMMAD QADEER and another---Respondents
 
Criminal Petition for Leave to Appeal No. 391-L of 2000, decided on 26th
July, 2000.
 
(On appeal from the judgment dated 9-6-2000. of the Lahore High Court
passed in Criminal Revision No. 175 of 2000).
 
Criminal Procedure Code (V of 1898)---
 
-----S.516-A---Penal Code (XLV of 1860), S.380---Constitution of Pakistan,
(1973), Art. 185(3)---Trial Court had cancelled the Superdari of stolen cash
already granted to petitioner for non-production of the same as case
property in, the Court without providing any opportunity of hearing to
him and his surety---Such order, therefore, was void ab initio and could
be recalled by the Trial Court on reconsideration after hearing the
parties---No illegality was attachable to the order of Trial Court restoring;
a Superdari of the case property to the petitioner which was mot only
just and proper but also correct in the facts and circumstances of the
case---Petition for leave to appeal was converted into appeal and the
same was accept in circumstances--- Impugned order of High Court
cancelling the restoration of Superdari of case property in favour of
petitioner by the Trial Curt, was set aside accordingly.
 
Shahid. Hussain Kadri, Advocate Supreme Court and Tanvir Ahmad,
Advocate-on-Record for Petitioner.
 
Abdul Wahid Ch., Advocate Supreme Court and Mehdi Khan Mehtab,
Advocate-on-Record and A.H. Masood, Advocate Supreme Court for
Respondents.
 
Date of hearing: 26th July, 2000.
 
JUDGMENT
 
MUNIR A. SHEIKH; J. ---This petition is directed against the judgment
dated 9-6-200() of the Lahore High Court through which Criminal
Revision No.175 of 2000 filed by respondent No.l against the order dated
15-2-2000 passed by the learned Additional Session as 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 .l and his
wife. It was also alleged in the F.I.R that the said accused persons had
also taken away an mount 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. l before he 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 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.
 
N.H.Q./R-21/S Appeal allowed.
 
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