This revision petition is directed against the order of Mr. Akhtar A.I Monga, Magistrate 1st Class, Lahore, dated 11-2-1974, whereby the learned Magistrate handed over the disputed truck on superdari to Noor Hussain respondent No. 2 on furnishing security in the slum of Rs. 50,000 with one surety in the like amount.
2. The brief facts are as follows :- Humid Ulla petitioner lodged a report at Police Station, Markan `A' Division, on 16-10-1972, that Adam Khan, who was driving his truck No. PRA/3025, had taken away the truck since August 1972, and was not traceable. Subsequently, he lodged F. I. R., on 24-10-1972. Under section 411, P. P. C. At Police Station, Misri Shah, against Noor Hussain respondent No. 2. Muhammad Ashraf, a neighbour of Noor Hussain moved an applica--petition for the superdari of truck, which was allowed. The petitioner moved an application for the cancellation of the order of superdari. His applica--petition was accepted on 25-12-1972, and order of superdari in favour of Muhammad Ashraf was cancelled. The matter was then entrusted to Khawaja Azhar Hussain, Magistrate, who refused to give the truck on superdari to any of the parties because of civil litigation between the parties about the ownership of the disputed truck. Both the parties filed revision petitions before this Court. The revision petitions were dismissed on 8-2-1973. Another petition Criminal Revision No. 150/1973, was filed by Noor Hussain respondent and it was disposed of on 4-7-1973. The impugned order was set aside and Ilaqa Magistrate was directed to decide the question of superdari afresh. The learned Magistrate gave the disputed truck on superdari to Humid Ullah vide his order dated 8-1-1974, subject to his furnishing a Bank guarantee in the sum of Rs. 20,000. Hamid Ullah petitioner did not furnish the Bank guarantee till 6-2-1974. Noor Hussain submitted an application on 6-2-1974. He mentioned in the said application that a decree had been passed in his favour by the civil Court regarding the ownership of the truck and the truck had been taken from his possession. He further mentioned in the application that he had purchased the truck from Taza khan and during the investigation it was found that Taza Khan was the owner of the disputed truck and he could sell it. It was also mentioned that a case under section 411, P. P. C. Lodged at the instance of the present petitioner was being cancelled. The learned Magistrate summoned the Investigating Officer for 11-2-1974, with the record. The Investigating Officer, besides producing the record, also submitted his report in which he mentioned that it was revealed during the investigation that Hamid Ullah petitioner had sold the truck to the mother of Taza Khan named Mst. Iranai. Ta;a Khan produced an affidavit of Hamid Ullah in support of his statement, which was on two rupees stamp paper. According to this document, Hamid Ullah had sold half of the disputed truck to Fazal Rahim and one half to Mst.
Iranai, on 21-2-1972. Fazal Rahim and Mst. Iranai filed an affdavit on 21-2-1972, for the insertion of their names in the relevant documents. These two affdavits were duly attested by Oath Commissioner, Mardan. After examining the record, the learned Magistrate passed the impugned order, on 11-2-1974, and gave the disputed truck on superdari to respondent No. 2 subject to the furnishing of security in the sum of R. 50,000 with one surety.
3. The impugned order is assailed by the learned counsel for the petitioner on the grounds that the impugned order was passed behind his back and he was condemned un-heard as no notice of said application was given to him; that the learned Magistrate had not given any special time for producing the Bank guarantee and he could not re-call his earlier order without summoning him; that no opportunity was provided to the petitioner to admit or deny the affdavit alleged to have been executed by him regard--ing the sale of the truck in favour of Fazal Rahim and Mst. Iranai; that Taza Khan did not appear before the Investigating Officer or the learned Magistrate for several months although he had been summoned. It was urged by the learned counsel for the petitioner- that the learned Magistrate committed an illegality in re-calling the earlier order and the impugned order liable to be set aside.
4. The learned counsel for Noor Hussain respondent No. 2 contended that on 21-2-19 72, the disputed truck was purchased by Taza Khan and Taza Khan sold this truck to the respondent, on 18-8-1972, and an agree--ment was duly executed and since then it remained with the respondent; that respondent No. 2 instituted the suit regarding the ownership of the disputed truck and the present petitioner was mentioned as one of the defendants in the suit and the civil Court passed a decree in his favour, on 17-11-1973, and that after the passing of decree by civil Court, the matter of ownership had been settled -between the parties and it could not be dragged into a criminal Court until the decree was set aside ; that respon--dent No. 2 was a bona fide purchaser of the truck and no case under S. 411, P. P. C. Was made out and the criminal Court had no jurisdiction in the matter after passing of the decree by the civil Court. He cited Khalid Mahmood and another v. The State (PLD 1970 SC 470) in support of his contention.
5. The learned counsel appearing on behalf of the State has supported the view of Noor Hussain respondent No. 2 and-urged that the learned Magistrate had no jurisdiction to give the truck on superdari to the petitioner after the dispute regarding the ownership of the truck had been settled by competent civil Court.
6. There is no dispute about the matter that Noor Hussain respondent No. 2 had instituted a civil suit regarding the ownership and possession of the truck, on 6-10-1972. An application under Order 1, Rule 10, Cr. P. C., had been filed and Hamid Ullah, the present petitioner, was impleaded as one of the defendants. This case remained pending for more than a year and ultimately an ex parte decree was passed on 17-11-1973, in favour of Noor Hussain respondent. Till that decree is set aside, the matter of owner--ship and possession regarding the disputed truck had been settled by a competent Court. It so appears that the learned Magistrate while passing order on 8-1-1974, whereby he gave the truck on superdari to the present petitioner subject to the furnishing of Bank guarantee in the sum of Rs. 20,000 did not keep it in mind that the civil Court had already adjudicated upon the rights of the parties in respect of the disputed truck. The learned Magistrate did not give any specific time to the present petitioner for furnishing the Bank guarantee. It was the duty of the petitioner to have furnished Bank guarantee within a reasonable time. The petitioner had furnished Bank guarantee on 18-3-1974. When the petitioner failed to furnish Bank guarantee within a reasonable time, it was open to the Magistrate to re-call his earlier order and pass a fresh order. The order dated 8-1-1974, was not operative for all times to come. The respondent submitted an application on 6-2-1974, and the learned Magistrate summoned the Investigating Officer with record and after perusing the record and going through the report of the Investigating Officer, passed the impugned order. No fresh notice was required to be sent to the present petitioner. It was his duty to by vigilant and to watch his own interest. In the presence of the affidavit of Hamid Ullah dated 21-2-1972, whereby he sold the disputed truck to Mst. Iranai and Fazal Rahim in equal shares and the affidavit of Fazal Rahim and Mst. Iranai for insertion of their names in the relevant documents and the decree of civil Court passed in favour of Noor Hussain respondent, it cannot be said that the learned Magistrate committed any illegality calling for any interference by this Court.
Finding no merits in this revision petition, I dismiss it.
7. Before parting with this revision petition, I want to observe that I have found order of the Magistrate on the file. It is dated 8-1-1974. In this order, Hamid Ullah was given the truck on superdari subject to the furnishing of Bank guarantee in the sum of Rs. 20,000. No specific date was given for producing the Bank guarantee. I have gone through the interim order-sheet. On 26-12- 1973, the learned Magistrate heard the arguments of the parties and adjourned the matter to 7-1- 1974, for orders. The parties appeared on 7-1-1974, but no time was left for the disposal of this matter and the learned Magistrate adjourned it to the next day for orders. The next order as contained in the order-sheet runs as follows :- "Hamid Ullah petitioner present. He had filed an application, which was perused and was on the record. Now the accused is ordered to furnish Bank guarantee in the sum of Rs. 20,000, till 15-1-1974, and on his furnishing Bank guarantee, the truck would be given to him on superdari."
This order is dated-7-1-1974. The date appears to have been tampered with. The date under the signatures of the Magistrate is also recorded as 7-1-1974, when the matter had already been adjourned by the Magistrate on 7-1-1974, to the next day. I fail to understand how this order could be passed on 7-1-1974. This order prima facie seems to have been tampered with. The learned District Magistrate, Lahore, to take appropriate action in this matter.