' FAZAL-E-MIRAN CHAUHAN, J.--- By filing the instant petition, the petitioner has called in question the orders, dated 17-11-2006 and 14-2-2007, respectively passed by the learned Magistrate 1st Class, Okara and the learned Additional Sessions Judge, Okara and to restore the order, dated 7- 10-2006, whereby Superdari of Troller No,4508/GLT, Isuzu Model 1985, was given to the petitioner by the learned Magistrate 1st Class, Okara.
2. Briefly, the facts of the case are that; on 5-9-2006, the petitioner lodged F.I.R. No,410 of 2006, for offence under section 406, P.P.C. Registered with Police Station "B" Division Okara against Abdul Hafeez respondent No,3, alleging therein that, he is proprietor of Ch. P.C.O. Larri Adda Road, Okara and has got registration No,4508/GLT Isuzu Model, 1985 Troller. The petitioner has got Abdul Hafeez as his employee for the management of the account to keep the account and on every month, he will maintain the account with him. After lapse of 5/6 months, neither respondent No,3 visited him nor has produced troller and has misappropriated the same, hence, this case.
3. Learned counsel for the petitioner states, that Abdul Hafeez respondent No,3 is accused of case F.I.R. No,410 of 2006 lodged by the petitioner. He was arrested and on his pointation, the Troller was taken into possession by the police. During investigation, respondent No,3 was found guilty and was challaned. Thereafter, on 15-9-2006, the petitioner submitted an application along with registration book etc. Before the learned Magistrate for Superdari of the Troller, which was given to the petitioner vide order dated 7-10-2006. Further states, that on 12-10-2006, respondent No,3 moved an application for setting aside the order dated 7-10-2006 and Superdari of the troller be given to him, which was accepted by the learned Magistrate 1st Class, Okara, who vide his order, dated 17-11-2006 cancelled his earlier order, dated 7-10-2006 and given troller on Superdari to respondent No,3. Being dissatisfied, on 22-11-2006, the petitioner filed revision petition against the order, dated 17-11-2006, which was dismissed by the learned Additional Sessions Judge holding that the matter pertains to a civil dispute. Also states, that the order granting Superdari of troller to the petitioner was passed in accordance with the provisions of section 516, Cr.P.C. And such order can be 'passed during inquiry or trial for temporary custody of the property and the final order of custody of property could be passed after conclusion of trial under section 517, Cr.P.C., but iii this case, challan has been submitted and the trial is in progress, whereas, the learned Magistrate has no authority to review its earlier order 7-10-2006 vide the impugned order 17-11-2006; further more, the learned Additional Sessions Judge has not considered this legal aspect of the case, and has passed the order in a slipshod manner. Learned counsel has placed reliance on Sh. Mahboob Ilahi v. Secretary R.T.S. Gujranwala Division and 3 others 1986 PCr.LJ 1880.
4. Conversely, learned Assistant Prosecutor-General and learned counsel for respondent No,3 have supported the impugned orders and opposed this petition contending that on 11-3-2006, an agreement to sell was executed between respondent No,3 and the petitioner, wherein, he has paid the entire amount to the petitioner. The troller was remained in possession of respondent No,3, as the same was purchased by his father on 26-1-1989. Further states, that the petitioner has got the registration book in his name secretly. Respondent No,3 has also filed a civil suit, which is pending adjudication in the Civil Court at Okara.
5. I have heard learned counsel thr the parties and perused the record. The admitted position of the case was that troller was recovered from the possession of respondent No,3 Abdul Hafeez, who possessed the same under an agreement to sell, executed between him and the petitioner. The price of Rs,16,00,000 was to be paid in 32 easy instalments. Since, respondent No,3 failed, to pay the instalments, F.I.R. Was lodged and the troller was taken into possession by the police. Thereafter, Superdari of the troller was given to the petitioner by the Magistrate on 7-10-2006, which order was later on withdrawn by the same Magistrate on the application of Abdul Hafeez respondent No,3 and passed order that the troller be remained in the custody of the police till the title of the same is decided by the Court, thus, he directed the parties to approach Civil Court and get their title decided.
6. The main grievance of the petitioner was that there is no specific powers for review in the Criminal Procedure Code, 1898 and once an order has been passed by the Magistrate, he becomes functus officio and was not authorized under the law to review the same. There is no cavil with this proposition, that these is no specific provision for review in the Code of Criminal Procedure, 1898. An order passed by the Magistrate, being judicial order, cannot be reviewed even under the Cr.P.C. Or even under section 21 of the General Clauses Act. This principle has no doubt settled but has certain exceptions. Firstly, where such order is not judgment within the meaning of section 367, Cr.P.C. Or 369, Cr.P.C., it can be reviewed, as there is a difference between the judgment and order.
Secondly, order must be passed in accordance with natural justice and should not be the result of fraud and misrepresentation, as fraud vitiates even most solemn proceedings and no party can be allowed to take advantage of his fraud.
7. Here in the present case interim order passed under section 516-A, Cr.P.C. For the custody of property, recovered or taken into possession by the police is an order and not judgment within the meaning of section 367, Cr.P.C. Or 369, Cr.P.C. And in such eventuality, the Court having come to this conclusion that, the petitioner by misrepresentation and fraud, obtained the custody of the troller by concealing certain facts from the Court, which was rightly withdrawn and set aside.
Reference can be placed in this context on Lal Din and another v. Muhammad Ibrahim 1993 SCM R 710, Sheikh Liaquat Hussain v. The State 1997 PCr.LJ 61 (Karachi) and Mst. Mumtaz Begum and 8 others v. Shakil Hyder and 12 others 1997 PCr.LJ 776 (Karachi).
8. In this view of the matter, there is no merit in this criminal miscellaneous, which is hereby dismissed.