' KARAM ELAHEE CHAUHAN, J.-The dispute in this case is about the custody and ownership of truck bearing Registration No, DC-2424 (Bedford 1970 Model). The case of the petitioner Dilshad is that he is the owner of this truck and was driving it on 18-11-77 from Multan to D. G. Khan. It is pleaded that when the petitioner, along with cleaner Sarwar and Driver Fakhruddin reached near, the Boat Bridge on Indus River, they got down to ease themselves but Abdul Rashid, Sher Muhammad, Iqbal and Abrar (accused) came on a Toyota car and seized the truck and took it away.
2. Two days thereafter, i. e. On 20-11-77 the petitioner filed an application before the P. D. S. P.
Whereupon F. I. R. No, 37 at P. S. Darhama was registered under section 382, P. P. C. Against the aforesaid four accused. It appears that Noor Muhammad (respondent No, 2 herein) also claimed the ownership of this truck which had, in pursuance of the aforesaid F. I. R. Been taken into custody by the police on 21-11-77 from Sher Muhammad the alleged accused. The said Nur Muhammad, therefore, applied that the custody of the truck be given to him on supardari. The matter was attended to by a learned Magistrate who on 7-12-77 found Nur Muhammad prima facie eligible for being given the custody of the truck, which was, consequently, handed over to him on supardari on the basis of a Bank guarantee in the tune of Rs, 150,000,
3. The petitioner filed a Revision against the aforesaid Order of the Magistrate but without any success as the same was dismissed by the learned Sessions Judge, D. G. Khan on 10-4-78. The petitioner did notchallenge this order further and thus acquiesced to the truck being handed over on supardari to Nur Muhammad.
4. It appears that the petitioner then adopted another course and that was that he filed an application on 15-4-78 before the Magistrate complaining that the Bank guarantee furnished by Nur Muhammad was spurious. The learned Magistrate, without issuing any notice to Nur Muhammad, and without hearing him or giving him an opportunity to show cause or to defend himself, passed an order on 20-4-78 cancelling the earlier supardari order, and on 4-7-1978 handed over the truck to the petitioner without taking any security from him.
5. Nur Muhammad filed a Revision being Cr. Revision No, 371 of 1978 which was accepted by a learned Single Judge of the Lahore High Court on 25-10-78 whereby he set aside the aforesaid subsequent order of the learned Magistrate on the short ground that it had been passed ex parte against Nur Muhammad without issuing him any show cause or withoat giving him any opportunity to defend himself. The learned Single Judge further noticed that the police had taken a stand that there had not taken place any theft of the truck and that they had applied for the cancellation of the case/ F. I. R. As that matter was still pending, therefore, the learned Single Judge directed that in these circumstances the truck should be retained in the Malkhana for the interim period. The petitioner has come up in a petition for special leave to appeal against the aforesaid order, to this Court.
6. Learned counsel for the petitioner argued that if the truck was allowed to be retained in Malkhana, it was liable to undergo a decay, therefore, the order of the High Court in the circumstances, was illegal.
' He prayed that as the truck has been stolen or snatched away from his custody, it should have been returned to him in the form of a supardari. We have considered the points raised by the learned counsel but we are of the view that these have no merit.So far as the entitlement and eligibility of the petitioner to have the truck in dispute, on supardari, is concerned, that chapter stands closed with the order of the learned Sessions Judge dated 10-4-78 passed in the Revision Petition of the petitioner wherein he did not hold the petitioner eligible for the custody of the truck.
The petitioner did not challenge that order further in any forum and so long as that order is in operation, the claim of the petitioner for supardari of the truck on his own merits cannot be re- opened.
7. So far as the order of the learned Magistrate dated 20-4-78 is concerned, it is sufficient to mention that it was passed behind the back o Nur Muhammad without issuing any notice to him, and without giving B him any opportunity to defend himself. The High Court, in the circumstances, was justified to quash the said order on that short ground, and we find no reason to interfere with the same. Learned counsel referred to .Fazal Dad v. State (1), Ghulam Akbar v. Muhammad Ilyas and another (2), Hamidullah v. The State and another (3) and Mahboob Yar Khan and another v.
Municipal Committee, Mian Channu (4), for the proposition that it was not necessary to issue any notice to a supardar for cancelling his sapurdari if {{FOOT NOTE}} (1) 1974 P Cr. L J 452 (2) 1974 P Cr. L J Note 53 at p. 34
(3) 1975 P Cr. L J 1148 (4) PLD 1975 Lab. 748{{FOOT NOTE}} ' the guarantee furnished by him turned out to be spurious. These cases do not lay down any such law and hold rather to the contrary.
8. At this place learned counsel for the caveator/respondent submitted that not the guarantee furnished by his client but instead the very. F. I. R. In this case as made by the petitioner was rather a spurious document especially when it was belated by two days and there was given no reason as to why the petitioner approached the P. D. S. P. Instead of reporting the matter to the nearest police station. Another fact brought to our notice was that if the truck had been stolen away how could it have been parked at the Adda of Qureshi Goods, Muzaffargarh in the open so that it may be recovered on 20-11-77 as pretended by the petitioner. He submitted that the real facts are that his client was the owner of the truck having purchased it for valuable consideration from the petitioner, but as the petitioner later turned dishone st, he wanted to get the truck back from Nur Muhammad and for that purpose, concocted a fake story and a fake F. I. R. The police, however, found out the truth and recommended for cancellation of this case. We do not want to express any opinion on this aspect of the matter which has already been taken up by the police and is pending before the appropriate authorities. For our purpose it is sufficient to hold that in the context and the circumstances hereinbefore mentioned, we think that the order passed by the learned Single Judge does not suffer from any illegality nor does it violate any principle of law warranting interference by this Court at this stage.
9. The result is that this petition has no merit and i3 dismisse.