Undoubtedly Ghulam Muhammad petitioner is the owner of disputed tractor No. SA 9383 Ford 3600. He pledged this tractor with Sultan Muhammad respondent and his two sons, vide agreement dated 2nd October, 1979 for rupees six thousand. It was agreed between the parties that tractor shall remain with Sultan Muhammad and his two sons for a period of six months and Ghulam Muhammad petitioner could get it back after making payment of rupees six thousand. It was further agreed that if the tractor was used on hire, the income would be divided between the parties. One-third of the income shall go to Sultan Muhammad and his two sons while two-third to Ghulam Muhammad. It was the case of Sultan Muhammad respondent and others that Ghulam Muhammad petitioner wanted to take back the tractor forcibly without making the payment of rupees twenty thousand which had become due from him. He filed a civil suit in February, 1980. This suit was decreed on 20th March, 1980. It was an ex parte decree. The petitioner moved the Martial Law Authorities as well as the police for getting the possession of the disputed tractor. Ultimately notwithstanding the decree passed by the civil Court the local police took the tractor in possession under section 550, Cr. P. C. On 17th November, 1980. Ghulam Muhammad petitioner moved an application to the Magistrate First Class, Jauharabad for getting the tractor on superdari and the Magistrate gave the tractor on superdari to the petitioner. Sultan Muhammad respondent moved an application on 20th November, 1980 for the review of the order but his application was dismissed by the Magistrate; vide order dated 24th November, 1980. Sultan Muhammad challenged the order of the Magis--trate by filing the revision petition in the Court of Session, The revision petition was accepted by the learned Additional Sessions Judge on 8th January, 1981, on the ground that the Magistrate did not take into consideration the fact that there was no criminal case regarding the disputed tractor. It was ordered by the learned Additional Sessions Judge that Sultan Muhammad was entitled to retain the possession of the tractor. Feeling aggrieved of the said order Ghulam Muhammad filed the present writ petition.
2. It was contended by the learned counsel for the petitioner that the respondent had used the tractor for fourteen and a half months and t had earned more than forty/fifty thousand rupees and retained the entire income with him ; that the local Police took into possession the disputed tractor under section 550, Cr. P. C. And the said tractor was given to him on superdari. The main contention of the learned counsel for the petitioner was that revision petition against the order of the learned Magistrate was not competent. He was of the view that if the order had been passed under section 517, 518 or 519, Cr. P. C., then only the revision petition was competent. He further contended that the order which was passed under section 523, Cr. P. C. Was not maintainable.
3. The contentions raised by the learned counsel for the petitioner are without any force. Section 517, Cr. P. C. Deals with the order for disposal of property regarding which offence was committed and after the conclusion of inquiry and trial, the criminal Court could make such order as it thought fit for the disposal of any property or for the custody of the property regarding which any offence appears to have been committed. In lieu of passing an order under section 517 Cr. P. C., the Court could under the provision of section 518, Cr. P. C., direct the property to be delivered to the District Magistrate or to the Sub-Divisional Magistrate. Section 519, Cr. P. C. Was in respect of the payment to innocent purchaser of money from the accused. Section 520, Cr. P. C. States that any Court of appeal; confirmation, reference or revision may direct any order under section 517, 518 or 519, Cr. P.
C. Passed by the Court subordinate thereto, to be stayed pending consideration by the former Court, and may modify alter or annul such order and make any further orders that may be just. It did not mean that the revision was not competent against order passed under section 523, Cr. P. C.
It is laid down in section 439, Cr. P. C. That in the case of any proceedings the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may in its discretion exercise any of the powers conferred on a Court of appeal by sections 423, 426, 427 and 428 or on a Court by section 338, and may enhance the sentence. The first question which required to be considered was whether the action of the police officer in the seizure of the disputed tractor was legal or not. It is an admitted fact that till today no case has been registered with regard to the disputed tractor. The tractor was taken into possession under section 550, Cr. P. C., which lays down that any police officer may seize any property, which may be alleged or suspected to have been stolen, or which may be found under circumstances, which create suspicion of the commission of any offence. Since the tractor was neither alleged nor suspected to be stolen, the Police Officer could not seize it. As there was no suspicion of the commission of any offence in respect of the tractor, its seizure was not in accordance with law. The subsequent B proceedings taken up by the Magistrate under section 523, Cr. P. C. Were illegal. The Magistrate had no jurisdiction to pass an order under section 523, Cr. P. C. The view taken up by the learned Additional Sessions Judge was quite correct and it cannot be held that the order of the learned Additional Sessions Judge was illegal and without lawful authority.
4. Before parting with this revision petition I would like to observe that it is a case of hardship to Ghulam Muhammad, who is the owner of the tractor and who pledged it for a petty amount of rupees six thousand which remained with Sultan Muhammad respondent and his sons for fourteen and a half months. In case the decree had not been passed in favour of Sultan Muhammad and his son Muhammad Latif I would have liven a direction that Ghulam Muhammad could retain its possession in case he paid the amount of rupees six thousand to Sultan Muhammad and his sons.
Learned counsel for the petitioner pointed out that Ghulam Muhammad had moved a petition for setting aside the ex parte decree. He may pursue that remedy, if so advised.
5. For the reasons stated above, the writ petition is dismissed. The petitioner is directed to deliver back the possession of the tractor to Sultan Muhammad respondent within two months of passing this order.