1. This Criminal Miscellaneous Application has been filed challenging the order of the Sessions Judge Jacobabad passed in Criminal Revision Application No.91 of 1985. Briefly the facts leading to the present case are that the present applicant had sold his Tractor bearing No.Exh.0643/JD 3662 to the present respondents Nos.3 and 4 who are said to be absconding. The total consideration of the said Tractor was settled at Rs.1,15,000 and an amount of Rs.25,000 was paid at that time and possession of the tractor was handed over to respondents Nos.3 and 4, while the remaining amount was to be paid before 15-2-1985. It is the case of the present applicant that on 8-2-1985 the respondents Nos.3 and 4 refused to pay the said amount on the pretext that they had sold away the tractor to the present respondent No.2 and the respondent Nos.3 and 4 also advanced to the present applicant. The present applicant therefore lodged the F.I.R. With City Police Station Jacobabad under section 420/406, P.P.C. And the police during investigation secured the tractor from the present respondent No.2, Ghulam Rasool. Both the parties moved applications before the Additional District Magistrate Jacobabad for possession of the tractor and he was pleased to grant possession to the present applicant vide order passed on 18-4-1985 on the basis of the documents of ownership. Being aggrieved from this order the present respondent No.2, filed the revision application before the Sessions Judge Jacobabad who passed the above impugned order whereby he set aside the orders passed by the Additional District Magistrate Jacobabad and further directed that the possession of the tractor be delivered to the present respondent No.2 pending investigation. It is against this order of the Sessions Judge that the present Criminal Miscellaneous Application under section 561-A, Cr.P.C. Has been filed.
2. I have heard Mr. Siddique Mumtaz Ali, Advocate with Mr. Gul Sher Jakhrani, Advocate for the applicant and Mr. Maqbool Ahmad Awan, Advocate for respondent No.2. None is present for respondents Nos.3 and 4. Mr. Muhammad Siddiq Kharal, Addl. A.-G. Is present for the State. Mr. Siddiqui for the applicant has submitted that the present applicant is the owner of the tractor and that the present respondents Nos.3 and 4 not being the original owners of the tractor could not have sold the same to Muhammad Panah the father of present respondent No.2 and thus they have committed the offence under section 420/406, P.P.C. From this the learned counsel has submitted that the present respondent No.2 being purchaser o-- the subject-matter of the case from the alleged offender is not entitled to the possession thereof. He has placed reliance on the case of Inayatullah v. Muhammad Tufail and 2 others. In this case a learned Single Judge of the Lahore High Court has observed that the stolen property cannot be given on superdari to the purchaser from the alleged thief. In my view this case has no bearing in the present matter. The facts,, in present case shows that the said Tractor was sold by the present applicant to the respondents Nos.3 and 4 for valuable consideration and part payment had also been received by him. It is also admitted in the F.I.R. Lodged by the present applicant that the respondents Nos.3 and 4 then sold the same tractor to Muhammad Panah the father of the present respondent No.2 and this fact shows that prima facie that father of present respondent No.2 is bona fide purchaser till decided otherwise. :: also appears from the order of Sessions Judge that the A.D.M. Before passing the order of superdari on 18-4-1985 had directed the S.H.O. City Police Station Jacobabad vide his Letter No.PA/ADMN/71, dated 11-4-1985 to hand over the possession of said Tractor alongwith implements to the owner namely Saleem Khan (Present applicant) after verifying the documents and obtaining proper receipt. This shows that the case was not before the A.D.M. But he had passed the said order on the basis of ownership. Now a Magistrate exercising jurisdiction under section 516-A, Cr.P.C. Or section 517(1), Cr.P C is not competent to investigate into question of title but the same is to be determined by a competent Civil Court. Reliance may be placed on the case of Central Co-operative Bank Ltd., Sargodha v. Ahmad Bakhsh PLD 1970 SC 343 wherein their Lordships have held: "In a proceeding under section 517(1) of the Code of Criminal Procedure it is hardly desirable to decide the question of title to the property concerned, nor is the criminal Court competent to decide it either. The question of title, if any, should be left to be decided by the ordinary Civil Court of competent jurisdiction."
(i) that if an article is recovered from a person against whom there is no allegation of any crime, the custody of the same be entrusted to such person on superdari and P.R. Bond.
(ii) that if an article is recovered from a person and if it is clear that the article was stolen, the same may be handed over to the owner against superdari and P.R. Bond.
3. (i.e) that an order under section 561-A, Cr.P.C. Is an interlocutory order which can be varied by the trial Court even before the disposal of the case, if circumstances so warrant.
(iv) that the criminal Courts are not competent to investigate into the question of title as their jurisdiction is confined under section 561-A, Cr.P.C. Or for that matter under section 517, Cr.P.C. To the determination of the entitlement to possession and not title to the property.
(v) that the question of ownership is to be determined by a competent Civil Court.
(vi) that an erroneous view taken by a trial Court or by a revisional Court while deciding an application under section 516-A, Cr.P.C. Cannot attract the Constitutional jurisdiction of a High Court."
4. The present respondent No.2 is not an accused in the said case lodged by present applicant and that admittedly the present respondent No.2 came in possession of the said tractor through purchase (sic) his father. In these circumstances it is not open for the Criminal Courts to go into the question of title but the same,, should be left for determination by the competent Civil Court. In view of the above discussion I find no merit in the present application, which is dismissed.