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Official Citation: 2026 LHC 4480
Court / Jurisdiction: Lahore High Court (Honorable Mr. Justice Tariq Mahmood Bajwa)
Parties: Nisar Ahmad Khan vs The State etc.
Ruling Summary: This decision was rendered by the Lahore High Court (Honorable Mr. Justice Tariq Mahmood Bajwa), officially reported as 2026 LHC 4480. In this matter between Nisar Ahmad Khan and The State etc., the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
COURT: Lahore High Court (Honorable Mr. Justice Tariq Mahmood Bajwa) DECISION DATE: 01-06-2026 TAGLINE: Conversion of case property by the accused is understandable but to support it there must be tentative incriminating material otherwise converted property would be restored to the accused party. CASE DETAILS: Crl. Misc. 3189/26 ============================================================ Stereo. H C J D A 38. JUDGMENT SHEET LAHORE HIGH COURT LAHORE JUDICIAL DEPARTMENT
Crl. Misc. No. 3189-M of 2026 JUDGMENT
Nisar Ahmad Khan
VERSUS
State, etc.
DATE OF HEARING: 01.06.2026 PETITIONER BY: Mr. Zabih Ullah Nagra, Advocate. STATE BY: Mr. Hammad Iftikhar Syed, D.D.P.P. RESPONDENT BY: Mian Pervaiz Hussain, Advocate for respondent No.3.
TARIQ MAHMOOD BAJWA, J. By means of the instant petition filed under Section 561-A, Cr.P.C. the petitioner has put into question the legality of order dated 09.08.2025 passed by the learned Judicial Magistrate whereby the application for superdari filed by respondent No.3 was allowed and the application of the petitioner for the same relief was dismissed. The petitioner has also challenged the order dated 03.11.2025 passed by the learned Additional Sessions Judge, whereby the criminal revision filed by the petitioner against the aforesaid order was dismissed. 2. In essence, respondent No.3 got lodged a criminal case F.I.R. No.476/2025 under Sections 406, 411 P.P.C. Police Station Sukheki Mandi, District Hafizabad against the petitioner and his co-accused (his brothers) on the allegation of misappropriation of wheat bags (1024 in number). During investigation, Investigating Officer took into possession cattle including buffalos and cow along with cash amount, treating the same as allegedly linked with the proceeds of the offence. The petitioner/accused moved an application before the learned Judicial Magistrate for grant of superdari claiming him to be the owner and last possessor of the said cattle/cash, asserting that the Crl. Misc. No. 3189-M of 2026 2
same were wrongly taken from his dera. Respondent No.3, being the complainant of the case, also filed a application for superdari alleging that the cattle were purchased from sale of alleged misappropriated wheat bags. 3. The learned Judicial Magistrate, vide consolidated order dated 09.08.2025, accepted the application of respondent No.3 and dismissed that of the petitioner. The revision petition filed by the petitioner was further dismissed by the learned Additional Sessions Judge vide order dated 03.11.2025, thereby maintaining the findings of the trial Court, the present petition has been filed seeking setting aside of both the impugned orders and grant of superdari in favour of petitioner. 4. Mr. Zabih Ullah Nagra, Advocate for the petitioner has submitted that the tenor of the F.I.R. itself negates the accusation of entrustment. Adds that the parties were having prior business relations and a civil dispute has been culminated into a criminal one. It is further contended that the investigating officer adopted a novel mode of recovery by showing one cow, three buffaloes, one bull, one young buffalo and cash amount of Rs.300,000/- as case property without establishing any nexus between the alleged entrustment of wheat bags, their sale and subsequent purchase of the said cattle from that amount. Learned counsel argues that no incriminating material was collected regarding the amount allegedly received from sale of entrusted wheat bags, the source of purchase of cattle, or their market valuation through any independent cattle dealer. He maintains that before deciding the question of superdari, it was incumbent upon the learned fora to tentatively satisfy them that the recovered cattle/cash represented the proceeds of the alleged offence. He further submits that the alleged confession/ disclosure of the petitioner/accused made before police is inadmissible and could not legally be relied upon for determining interim custody. He concludes that both the courts below have misread the record and thereby unlawfully deprived the petitioner of interim custody of the cattle/cash. In order to augment his arguments, learned counsel for the petitioner relied upon the following precedents Crl. Misc. No. 3189-M of 2026 3
I. “Muhammad Akram Vs. The State and 3 others” (2017 YLR Note 62), II. “Khalid Saleem Vs. Muhammad Jameel alias Bilal and 6 others” (1996 SCMR 1544), III. “Muhammad Riaz Vs. The State” (2014 P.Cr.L.J. 1716) IV. “Sheikh Rasheed Ahmad Vs. S.H.O. Police Station Kohsar, Islamabad” (2024 P.Cr.L.J. 113 Islamabad).
5. Conversely, Mian Pervaiz Hussain, Advocate, for respondent No.3 while supporting the impugned orders and repelling the contentions of learned counsel for the petitioner has contended that the investigating officer, after conducting a fair investigation, found that the accused persons had sold out the misappropriated wheat bags and purchased the recovered cattle from its proceeds. He adds that the recovery of case property was effected from co-accused Jamshaid Ahmad Khan vide recovery memo dated 27.06.2025, therefore, the petitioner had no locus standi to file the application for superdari with the claim of ownership/last possessor or to challenge the acceptance of the application of respondent No.3. Learned counsel further contends that co-accused Jamshaid Ahmad Khan had also sought superdari of the same case property, as noticed by the learned Revisional Court in its order. He lastly submits that the impugned orders are well-reasoned and, after lapse of considerable time since the interim disposal of the case property, any interference by this Court would unsettle the existing interim arrangement and caused prejudice to the case of respondent No.3. He, therefore, prays for dismissal of the petition. 6. Hearkened, annexed record perused. 7. Before attending the respective contentions of learned counsel for the parties and impugned orders, it would be apt to have a fresh glance upon the relevant Section i.e. Section 516-A Cr.P.C. which deals/controls the disposal of the property during pendency of trial, the same reads as under: “ 516A. Order for custody and disposal of property pending trial in certain cases. When any property regarding which any offence appears to have been committed, or which appears to have been used for the commission of any offence, is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property Crl. Misc. No. 3189-M of 2026 4
pending the conclusion of the inquiry or trial, and, if the property is subject to speedy or natural decay, may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of.” (Underline is supplied for emphasis).
8. The word superdari is not used in the supra relevant section, however, “interim custody”, “interim disposal” and “Superdari” are interchangeably used in criminal practice. Every word employed by the legislature in a statutory provision is presumed to have been used with a definite purpose. The expression "any property" occurring in the relevant section clearly signifies that where the property involved in the commission of an offence has been converted into another form, the question regarding such converted property is also to be determined by the competent Court under the said provision. However, such converted property cannot be treated as case property merely on the assertion of the Investigating Officer in the absence of incriminating material establishing the alleged conversion. 9. The use of the expression “appears” in Section 516-A, Cr.P.C. is also of considerable significance, the legislature has consciously employed this expression to indicate that at the stage of interim custody, the court is not required to record a final determination regarding the ownership of property or its ultimate evidentiary worth, however, the provision requires a tentative judicial satisfaction, based upon available material, that the property has some apparent nexus with the alleged offence or that a particular person has a better prima facie entitlement to its custody, however, the word “appears” does not mean a mere suspicion or an assertion by the investigating agency, rather it requires the court to apply its judicial mind and to reach a tentative conclusion on the basis of legally admissible/tangible material. It is also significant that the power under Section 516-A, Cr.P.C. has been deposited/vested in the Judicial Officer and not in the investigating agency. 9. The police may seize and produce the property during investigation, but the question as to its interim custody is to be determined by the Court after examining the circumstances of the case on the touchstone of incriminating material. The investigating Crl. Misc. No. 3189-M of 2026 5
officer cannot, merely by treating an article as case property, conclusively determine its character. Thus, the court is required to act as a neutral judicial forum and ensure that the property is preserved during trial without allowing the process of criminal law to become a means of unjustified deprivation of possession. 10. After discussing the legal aspect, a tentative examination of the police record reveals that the entrusted wheat bags were in huge quantity and at present, prima face, no incriminating material is available, how the considerable stated physical article/wheat bags were shifted/sold out, how much amount was received after selling the entrusted wheat, the person to whom it was sold, thereafter, subsequent purchase of cattle/case property from the said sale proceeds, rather the entire next chain to the alleged entrusted wheat bags, their disposal, purchase of cattle and cash rests upon simply and solely on the confession/ disclosure statement allegedly made by co-accused Jamshaid Ahmad Khan before the police/ Investigating Officer. Under Articles 38 and 39 of the Qanun-e-Shahadat Order, 1984, a confession made before police/Investigating Officer is inadmissible whereas the Article 40 of the supra Order is applicable on certain limitations, which are completely missing, no cavil to the proposition that the duty of an Investigating Officer is to collect incriminating material and not to create it. To hold otherwise would amount to conferring unfettered discretion upon the Investigating Officer to seize any property of the accused under the guise of conversion without judicial scrutiny. It is a settled principle that every interlocutory issue, including grant of bail, release of an accused from the jail and to give his hand to the surety, or interim disposal of case property, is to be decided on the basis of a tentative assessment of the material available on record. The law neither contemplates nor permits such matters to be decided solely on the opinion or assertion of the Investigating Officer. In an identical controversy, superdari was dealt and decided by this Court in the case law reported as “Muhammad Riaz Vs. The State and 3 others” (2014 P.Cr.L.J. 1716). In order to better understand the ratio and its Crl. Misc. No. 3189-M of 2026 6
applicability to the attending facts, it would be apposite to refer its paragraph No.6 and 7 herein below: “ 6. Admittedly, the petitioner is an accused person in case F.I.R. No.172 of 2013 facing charges of theft of cash and gold ornaments etc. According to the F.I.R., the petitioner committed to, give buffaloes to the complainant for compensation in lieu of case property while admitting his guilt. It was during the investigation when the above said buffaloes were taken into possession by the police, which in my humble opinion cannot be termed as case property as the same were not stolen and the complainant had never claimed to have owned the same. Since it is not a case property, therefore, same cannot be refused to the petitioner who is an accused person of theft. The said buffaloes are not required in any case and were taken into possession, therefore, same were to be returned to the person from whom it was taken. My reliance is upon 1996 SCMR 1544 (Khalid Saleem v. Muhammad Jameel alias Billa and 6 others) in which it was held as under:-- “.......Similarly the articles recovered by the police during the investigation of the case allegedly belonging to Muhammad Ashraf alias Mehboob which are stated to have been purchased from the money which he had received by the sale of ornaments the subject of dacoity in this case, which were later on given on Superdari to the complainant, along with Mazda Car and Honda Motorcycle belonging to Nain Sukhia, who had allegedly purchased it with the sale proceed of the case property, all these are to be returned to their respective owners. If there is involved any question of title the same shall be left to be determined by the Civil Court.” In my humble opinion, the Area Magistrate and the learned Additional Sessions Judge were required to satisfy that the buffalos were the case property in the criminal case and the person Niko is entitled to the custody of the same. Even otherwise, the original principle is that if the property is not proved subject matter of the offence it should be restored to the person from whom it had been taken.”
11. Now adverting towards the objections of the learned defender of the impugned orders, firstly lack of locus standi of the petitioner to file application for superdari as the case property was recovered from the co-accused Jamshaid Ahmad Khan, as in the preceding paragraph, it is observed that the incriminating material was deficient relating to the conversion of the alleged entrusted wheat bags, it will be mere disposal, if the orders are set side and matter is remanded to the learned trial court to decide the matter afresh. Another objection raised by learned counsel for respondent No.3 that co-accused Jamshaid Ahmad Khan had also sought superdari of Crl. Misc. No. 3189-M of 2026 7
the property, the record of that application was summoned but that does not support said contention, the application filed by Jamshaid Ahmad Khan co-accused was not with respect to the cattle and cash involved in the present proceedings/applications, rather it pertained to other articles. Furthermore, neither Jamshaid Ahmad Khan, co- accused (brother of the petitioner) nor any other co-accused has, despite lapse of considerable time, approached any court for interim custody/superdari of the cattle/cash, subject matter of the present petition or for setting aside the orders passed in favour of respondent No.3. No doubt, while granting post-arrest bail to a co-accused, certain observations were made by this Court regarding the nature of the prosecution case, however, in observance of judicial discipline, it was examined, it is specifically clarified therein that the observations were tentative in nature and confined to the disposal of the bail petition, therefore, the present matter has been examined independently on the basis of the material available on record. 12. The recovery memo itself reflects that the cattle were recovered from a cattle shed. Before entrusting/allowing the application of superdari of the cattle to respondent No.3, the learned Magistrate was required to first satisfy itself that there existed some legal/tangible material connecting the recovered articles with the subject matter of the crime, however, no such material is available on the record. At present, prima facie, the Investigating Agency has failed to show/collect incriminating material that the recovered cattle and cash were outcome of the proceeds of the alleged misappropriated wheat bags. 13. The final contention of learned counsel for respondent No.3 that considerable time has elapsed since the passing of the impugned orders, is devoid of force, mere passage of time cannot validate an order otherwise found to be unsustainable in law. Both the courts below have failed to attend the applications in their true perspective and the facts of the case. 14. As a necessary corollary to the discussion made above, the petition stands allowed, consequently, the orders dated 09.08.2025 and 03.11.2025 passed by the learned Judicial Magistrate and Crl. Misc. No. 3189-M of 2026 8
learned Additional Sessions Judge, respectively, are set aside. Resultantly, the petitioner is held entitled to the superdari of one cow, three buffaloes, one bull, one young buffalo and cash, subject to furnishing his surety bonds in the sum of Rs.3,000,000/- with one local surety in the like amount for the satisfaction of the learned Area Magistrate, however, the petitioner is bound to produce the same, whenever required by the competent court. 15. Before signing it off, it is observed that observations given supra being tentative in nature would not influence the learned trial Court and that Court would be fully competent to decide the question of final disposal of property under section 517 Cr.P.C. independently in the light of evidence.
(Tariq Mahmood Bajwa) Judge
Approve for reporting.
Judge
MuzamilMohsin*