Through this petition under section 561-A Cr.P.C. the petitioner has assailed the vires of order dated 27.07.2021 passed by the learned Additional Sessions Judge, Pakpattan, whereby he accepted the criminal revision filed by respondent No. 5 and set aside orders dated 19.05.2021 and 12.06.2021 rendered by the learned Judicial Magistrate 1 Class, Arifwala and granted superdari of tractor Fiat-480, Model 1991 bearing Registration No.DGD- 6240, Engine No. 460683 and Chassis No.32664-91-D to respondent No.5 instead of the petitioner .
2. Brief facts leading to the disposal of instant petition are that Muhammad Mansha, ASI, Police Station Ahmad Yar, Tehsil Arifwala, District Pakpattan seized the afore mentioned tractor from the possession of respondent No.5 vide Rapt No.5 dated 16-05-2021 under section 550 Cr.P.C. The petitioner filed an application for obtaining the said tractor on superdari which was accepted by the learned Judicial Magistrate 1 Class, Arifwala on the ground that as the petitioner has produced the transfer letter of the said tractor and there was no rival claimant of it, therefore, the tractor in question was handed over to him on superdari. Subsequently , respondent No.5 moved an application for cancellation of superdari of said tractor which was dismissed by the learned Judicial Magistrate 1st Class, Arifwala, vide order dated 12.06.2021 while maintaining his previous order . Respondent No.5 being aggrieved, assailed both the supra mentioned orders of the learned Judicial Magistrate 1st Class, Arifwala through criminal revision which was accepted by the Additional Sessions Judge, Arifwala, who set aside the orders of the learned Judicial Magistrate 1 Class, Arifwala by cancelling the superdari in favour of the petitioner , rather granted sueprdari of the tractor in question to respondent No.5 being last possessor with the observation that it was taken into possession by the police from the custody of respondent No.5. Hence, this petition.
3. Heard. Record perused.
4. In the statutes governing our country's criminal administration of justice, the word "superdari" has not been used.
However, it may be defined in its practical prospect as the interim custody of seized property connected with anst st st offence, or suspected to have been stolen or found under circumstances which create suspicion of any offence, to the person entitled to its possession in lieu of furnishing a surety bond by the order of the Court for its production whenever necessary.
5. The word which has been used in the Criminal Procedural Law to cater for the concept of superdari is "Interim disposal". Disposal of any seized property under the provision of Cr.P.C. may be either interim or final. Interim disposal is grant of custody of a seized property pending the conclusion of investiga tion or inquiry or trial whichever the case may be. Whereas final disposal is ordered after investigation, inquiry or trial is over. In fact, the interim disposal of a seized property has been named and called by our Courts as superdari. Superdari continues till the seized property is finally disposed off under Section 517 or 523 Cr.P.C. The order regarding superdari of a property is made when the following essential conditions are present:
1. There must have been investigation, inquiry or trial.
2. The property in respect of which the order is to be made must be one: a) regarding which any of fence appears to have been committed, b) which has been used for commission of any of fence,
3. It is alleged or suspected to be stolen or when it is found in circumstances which gives rise to a suspicion that an offence has been or is about to be committed.
4. It has been taken into custody.
5. It is produced in the Court.
6. Its seizure is reported to the Magistrate.
6. After seizure of the property by police an order for its superdari (interim disposal) can only be passed by the Court and police is expected to hold the property subject to the order of the Court which may be passed either under Section 516-A Cr.P.C. or under Section 523 ibid .
7. The grievance urged through the instant petition under section 561-A of the Code of Criminal Procedure, 1898 is that the petitioner is entitled for superdari of the tractor being its bonafide purchaser and in this regard he has produced its transfer letter but the learned Additional Sessions Judge, Arifwala has allowed the criminal revision filed by respondent No. 5 on the wrong premises of law , therefore, the impugned order is liable to be set aside.
8. From the perusal of impugned order , it appears that the learned revisional court declared respondent No.5 to be entitled to the superdari of the tractor in question on the ground that the police seized it when it was in the possession of respondent No.5 which fact is evident from Rappat No.5 dated 16.05.2021 recorded under section 550 Cr.P.C. by Muhammad Mansha, ASI. The learned revisional court further observed that the tractor in question is still in the name of Agricultural Develo pment Bank of Pakistan. It was further observed that the photocopy of transfer letter produced by the petitioner neither bore any date nor it was attested by any witness and executant of this document Sher Muhammad had died 23 years ago, so it could not be relied upon.
9. In the present case, the petitioner is only in possession of a photocopy of undated transfer letter , described himself as the owner of the vehicle. An open transfer letter is not a valid document of title and it does not transfer ownership of a vehicle in terms of the Provincial Motor Vehicles Ordinance, 1965 (Ordinance XIX of 1965). An applicant must have satisfied the Court with cogent material including title etc., at least to enable him to retain custody . The registration certificate of the vehicle shows that the original owner of the vehicle is Agricultural Development Bank, Haroonabad, which was leased in the name of Sher Muhammad son of Ali Muhammad.
When the petitioner made application for superdari of the vehicle, he was not the owner of the vehicle. Further, the petitioner did not assert a word, in the application before the learned Magistrate, to show that he was an associate or relative of the lessee Sher Muhammad, who died on 02.08.1998 but after lapse of a considerable period of his death, he could not transfer the vehicle in his name. His failure to explain how the vehicle, whose ownership he claims, had gone into the possession and use of respondent No.5 was fatal to his prayer for superdari of the same. As the petitioner failed to establish his ownership of the vehicle, the application made by him for release of the vehicle, therefore, was not maintainable, and wrongly allowed by the learned Judicial Magistrate 1 Class, Arifwala.st
10. When confronted regarding ownership documents of the petitioner , the learned counsel frankly conceded that there is an open transfer letter in his favour from the seller and vehicle has not been registered in his name in the relevant Excise & Taxation Of fice.
11. The Hon'ble Apex Court in case titled as "Amjad Ali Khan V. The State and others" (PLD 2020 SC 299), has graciously held that:- "The applicant while asserting his ownership of the vehicle must specify in his application for superdari how he was deprived of the vehicle, how and when he found out that his vehicle was missing, and the legal proceedings initiated by him thereafter , if any ."
It has also further been laid down that: "The first and the foremost condition is that the petitioner must be the "owner" of the vehicle."Owner" is defined in section 2(24) of MVO to mean a person in whose name the motor vehicle is registered and includes the transferee.
Transferee must be duly registered under Provincial Motor V ehicles Ordinance, 1965 (Ordinance XIX of 1965) ."
12. Superdari order should be passed in favour of a person entitled to its possession or from whom it was recovered unless there are strong reasons against it. Admittedly , the petitioner is not registered owner of the vehicle as depicts through impugned order . It is also fact that the matter was not reported to the Area Magistrate as required by section 523 Cr.P.C. There is also no denial to the fact that till today no case been registered with police regarding this tractor . It is settled that property can be given on Superdari under section 516-A Cr.P.C. if some offence appears to have been committed or which appears to have been used for the commission of any offence.
Admittedly , the ingredients of section 516, Cr.P.C are lacking in the instant case, as no case whatsoever has been registered in respect of this tractor . Reliance is placed upon the case reported as Muhammad Yousaf v.
Muhammad Ramzan and 6 others (1999 PCr.LJ 968), Jam Sher Muhamamd v. Manzoor Amad and another (2006 PCr.LJ 311), Ali Muhammad v. Adl: Sessions Judge and others (2007 MLD 1096 ) and Mst. Humera Arshad v . The State and another ( 2011 MLD 704 ).
13. Learned counsel for the petitioner has placed reliance on the cases reported as Syed Wali Anjum v.
Muhammad Abdul Hussain and another (1999 PCr.LJ 1167 Karachi), Mst. Manzoor Begum v. SHO, Police Station City, Bahawalnagar and another (2002 YLR 868 Lahore), Haseeb Akram v. District Magistrate Mirpur (A.K) and 3 others [2012 MLD 1718 (High Court (AJ&k)] and Rafiullah v. Additional, Advocate-General, Peshawar High Court Bench Mingora/ Darul Qaza, Swat and another (2016 PCr.L.J 437 Peshawar) and Jamal-ud-Din Ahmed v. Muhammad Maqbool and 2 others (2011 PCr.L.J 1513 Karachi) . With esteemed respect to the above mentioned case laws, it is noted that the facts and circumstances mentioned in the case laws relied upon by the learned counsel for the petitioner referred to above are entirely different to the facts and circumstances of the instant case, therefore, are not applicable to this case.
14. The learned counsel for the petitioner has failed to point out any illegality or jurisdictional errors in the impugned order . The petitioner has remedy of filing civil suit for declaration and permanent injunction of the said vehicle and the said Court after recording the evidence of the parties would decide about the title of the vehicle.
15. For what has been discussed above, I find no force in this petition and the same is hereby dismissed in limine