' This petition under Article 9 of the Provisional Constitution Order, 1981 is directed against the order of the learned Additional Sessions Judge, Sialkot, dated 2-10-1984 whereby he accepted the revision petition of Himmat Khan respondent, set aside the order of the Assistant Commissioner, Daska and directed the S.H.O. Daska to get back the tractor in question from Bhagmal petitioner and hand it over to Himmat Khan respondent on Superdari against a surety of Rs,50,000.
2. Facts emerging from the record and the submissions made by the learned counsel for the parties, briefly stated, are that the petitioner purchased a tractor Messy Ferguson Chasis No,PTC- 706/12, Engine No,152-UA 461804-DL in the year 1977 for Rs,61,116 on agricultural loan obtained through Habib Ban , Sohawa, Tehsil Daska, District Sialkot. He paid the first instalment of Rs,14,000 to the Bank and then handed over the tractor to respondent No,1 who is closely related to him.
According to the averments made in the writ petition petitioner "gave the tractor to respondent No,1 for the purpose of earning livelihood through ploughing the agricultural land of others in Gujranwala". It is stated in the petition that for the first four years respondent No,1 has been paying the earnings to the petitioner and the total amount paid by him during this period was Rs,61,000.
Respondent No,1, however, stopped making any payment to the petitioner for the last two years and "ultimately refused to either give the money or even return the tractor back to the petitioner."
Petitioner, therefore, got a case registered against respondent No,1 under section 406/420, P.P.C.
With C.I.A. Staff Daska on 22-4-1984.
' Case of the respondent, on the other hand, is that'the petitioner had sold the tractor to him for Rs,70,000 which amount he paid in two instalments. It is pointed out by the learned counsel for the respondent that the fact that the petitioner had sold the tractor to respondent No,1 is made out even on the allegations made in the F.I.R., according to which petitioner had handed over the tractor to respondent No,1 on the understanding that the latter would pay the price of the tractor i,e, the amount of loan together with interest to the Bank. It is further pointed cut that the petitioner had admittedly received Rs,61,000 from respondent No,l. It is also stated that the dispute was referred to the Chairman, Union Council, Randeer, who gave the decision on 15-4-1984 after taking oath on Holy Quran from Himmat Khan respondent. According to his decision, petitioner had received Rs,70,000 from respondent No, 1 as the sale price of the tractor.
3. After the registration of the aforementioned criminal case, police took the tractor in question into its custody from Himmat Khan respondent No,1 as the case-property. Both the petitioner and respondent No,1 applied for Superdari of the tractor. Assistant Commissioner, Daska, by his order, dated 18-6-1984 directed that the tractor be given on Superdari to the petitioner with the observation that he had purchased it by obtaining the loan from the Bank part of which was still due from him and that the registration of the tractor was also in his name.
' Respondent No,1 feeling dissatisfied with the order of the Assistant Commissioner preferred a revision petition which the learned Additional Sessions Judge accepted by the impugned order with the direction that the tractor be handed over to respondent No,1 on S uperdari.
4. I have heard the learned counsel for the parties as also Sub-Inspector, C.I.A. Staff, Daska who was present in Court on 30-1-1985.
5. Learned counsel for the petitioner has argued that the petitioner being the lawful owner of the tractor was entitled to its possession and it was, therefore, rightly given to him on Superdari by the learned Assistant Commissioner. The learned Additional Sessions Judge proceeded on incorrect view of law in holding that the tractor having been seized from Himmat Khan respondent should have been restored to him. Learned counsel has placed reliance on Syed Nizamuddin v. The State 1972 PCr.LJ 678, Allah Ditta v. Ch. Muhammad Abdur Razzaq and another 1977 P Cr. L J 916, Mst. Gul Zarin v. The State 1980 P Cr. L J 158 and Mrs. Farhat Jabeen v. Additional Sessions Judge, Lahore and 2 others PLD 1981 Lah.
588.
6. Learned counsel for respondent No,1, on the other hand, submitted that his client had purchased the tractor from the petitioner and it remained in his possession for years together until it was taken into possession by the police. He, therefore, argued that respondent No,1 was entitled in law to its custody and the learned Additional Sessions Judge rightly restored its possession to him.
7. I have given my anxious consideration to the respective contentions of the parties and have also gone through the case-law cited by the learned counsel for the petitioner. The cases relied upon by the petitioner proceed on their own facts. Present case, has, however, certain distinguishing features which shall be highlighted hereunder:- ' Petitioner's own case as disclosed in this petition is that the tractor in question remained in possesison of Himmat Khan respondent for a period of about 6 years and that the petitioner had also received a substaintial amount of Rs,61,000 from respondent No,l. Present record further shows that the Chairman, Union Council, Randeer as arbitrator gave a decision in favour of respondent No,l. Copy of this decision has also been placed on the present record.
' Case set up in the F.I.R. Lodged by the petitioner also shows that the petitioner had handed over the tractor to respondent No,1 on the understanding that the latter would pay the amount of loan and interest to the Bank. Petitioner who was present in person on 30-1-1985 stated that F.I.R. Was not correctly recorded by the police and he reiterated the stand taken by him in the writ petition.
He, however, admitted that he had not filed any complaint setting forth the allegations which according to him, were correct. Learned counsel, however, pointed out that the petitioner had already filed a civil suit on 11-6-1984 for a declaration that he is the owner of the tractor which suit is still pending.
' S.H.O., respondent No,2 has also submitted a report and parawise comments in which allegations made in the F.I.R. Lodged by the petitioner have been reproduced and it is further stated that during the investigation of the case "it transpired that the tractor in question was handed over by Bhagmal (the petitioner) to Himmat Khan (respondent No,1) against a verbal assurance that Himmat Khan will pay the price of the tractor, i,e, loan acquired by the petitioner in full with all interest in this respect to the concerned Bank".
8. From the facts afore-mentioned, it is quite clear that there is a substantial dispute between the parties regarding the ownership of the tractor in question and the petitioner has already filed a civil suit for declaration of his title which is still pending in the civil Court. In the criminal case registered against the respondent, it has been found during the investigation that petitioner had handed over the tractor to respondent No,1 on the latter's assurance that he will pay the price of the tractor i,e, amount of the loan with all interest to the concerned Bank. It is also admitted that the petitioner who had purchased the tractor for Rs,61,116 had received Rs,61,000 from respondent No,1 and that the tractor in dispute had remained with respondent No,1 for about 6 years and that police took it into custody from him. Impugned order of the learned Additional Sessions Judge shows that he has allowed the custody of the tractor in question to respondent No,1 after taking into consideration all the relevant circumstances. The learned Judge has held "the tractor in question was seized from Himmat Khan petitioner. There is a claim and counter-claim about the ownership of the tractor in question, which can only be resolved by a civil Court. However, the fact remains that Himmat Khan petitioner paid a sum of Rs,61,000 to Bhagmal respondent. This fact is admitted by Bhagmal in his police report. Even otherwise, the decision of the Punchiat Annexure 'A' and the report of Zummard Khan, S.H.O., Daska, dated 5-2-1984 Annexure 'B' further strengthens the petitioner's claim. But this is not conclusive. I, therefore, leaving the question of the ownership of the tractor in question for the determination of the civil Court, am constrained to hold that since the tractor in question was seized from Himmat Khan petitioner, it should have been restored to him and to none else.
Particularly when he has already paid a sum of Rs,61,000 to Bhagmal which is not denied by him".
9. Findings recorded and view taken by the learned Additional Sessions Judge proceed on correct premises factual as also legal. Law is well-settled that ordinarily interim custody of the property seized it a criminal case is to be handed over to the person from whom it is recovered unless there are compelling reasons warranting a contrary course. Reference in. Fhis behalf may be made to Muhammad Farook v. State 1970 P Cr. L J 1253. In that case, Muhammad Farook petitioner had purchased a car from Mukhtar Ahmad respondent therein but the transaction was given the form of a pledge with a view to overcome the legal restriction on the sale of the car for a period of two years. Mukhtar Ahmad subsequently got a case registered against Muhammad Farook under section 406/420, P.P.C. And also filed a civil suit claiming ownership of the car. Police recovered the car from the possession of Muhammad Farook but the Magistrate handed it over on Superdari to Mukhtar Ahmad. Muhammad Farook challenged the order of the Magistrate in a revision petition which was allowed by this Court with the observation "two considerations have weighed with me in allowing the present petillon. Firstly, it is well-settled that normally in cases of this nature the interim custody of the property so seized should be handed over to the person from whom it is recovered unless there are strong reasons to the contrary. I have not been able to come across any permissive, much less compelling reasons to that effect. Secondly, prima facie, it is clear that the petitioner has been relieved of a sum of Rs,23,000 whereas respondent No,2 appears to have pocketed at least a sum of Rs,10,000 in this regard. From that point of view as well the petitioner is worse sufferer and as such is entitled to the interim custody of vehicle in question which admittedly was recovered from his possession".
' In yet another case reported as Muhammad Jamal Khan v. The State and another 1972 P Cr. L J 363, order of the Magistrate handing over the custody of the truck in dispute to the police was set aside by this Court and it was directed that as the truck in dispute was recovered from the possession of Muhammad Jamal Khan petitioner, its custody be handed over to him. Reference with advantage may be made to the relevant observations made in the precedent case. "If there is any dispute in regard to the ownership or title of the truck in question between Haji Muhammad Jamal Khan petitioner and Hamidullah Khan petitioner, the affected party can get this question resolved in the civil Court. But the dispute regarding the ownership or title of the truck in dispute is not a ground for not releasing the truck in question on Superdari to the person who was last in possession of the same 11
10. In view of the discussion held above, impugned order of the learned Additional Sessions Judge handing over the custody of the tractor in dispute to Himmat Khan respondent is not open to any exception. Even otherwise, finality attaches to the impugned order which has been passed on revision by a Court of competent jurisdiction. Such an order is not open to interference in constitutional jurisdiction of this Court as held in Abdur Rahman Bajwa v. Sultan etc. PLD 1981 SC
522. Relevant observations of their Lordships of the Supreme Court are reproduced hereunder:- "After the enforcement of revisional power on the Sessions Judges, all revisions against judgments of acquittal recorded by Magistrates lie before them, i,e, before Sessions Judges, while revisions against judgments of acquittal by any other 'inferior criminal Court' would still lie before the High Court. The reason for introducing this amendment and curtailing the jurisdiction of the High Court was obviously that each High Court had become clogged with revision petitions against orders of hundreds of Magistrates throughout the respective province and speedy disposal thereof was not possible But it is noticed with some dismay that persons dissatisfied with the judgments of the final Courts under the normal law have taken to challenging them through writ petitions under Article 199 of the Constitution, thereby circumventing the law and defeating the obvious intention of the Legislature.
' The question of juridiction of the High Courts under Article 199 has come under consideration in a number of cases before this Court and it has been repeatedly held that if a Court or Tribunal set up under the ordinary law has the jurisdiction to decide a particular matter then there is jurisdiction to decide it rightly or wrongly and the fact that the decision is incorrect, or is not one at which the High Court would have arrived, does not render the decision without jurisdiction.
' Upshot of the above discussion is that the impugned order passed by the learned Additional Sessions Judge proceeds on correct principle and sound reasons and is not open to any exception with the result that this petition fails and the same is hereby dismissed but with no order as to costs in the circumstances of the case.
Petition dismissed.