A Fiat Tractor belonging to Muhammad Tufail respondent No. 1 (coin-, plainant) was allegedly stolen from his dera situated in Chak No. 73 EB, Tebsil Arifwala, district Sahiwal on the night between 15/16-9-1975 and according to him the Police did not register the case and directed respondent No. 1 to locate the tractor first. Respondent No. 1 made an application to the Superintendent of Police, Sahiwal, on 15-10-1974, stating therein that his tractor had been stolen from his dera by Sadar Din, respondent No. 2, who had further sold it to a person in district Gujranwala and the same should be recovered and restored to respondent No. 1. In pursuance of the order passed on that application by the S. P. Formal F. I. R. Was registered on the same day at Police Station. Arifwala, district Sahiwal, which was situated at a distance of for miles from the dera of respondent No. 1 from where the tractor was stolen and the Police recovered stolen tractor from the custody of Inayat Ullah petitioner in this Court, resident of Kotli Mobalan, district Gujranwala.
After recovery of the tractor from him, Inayat Ullah, petitioner applied for its superdari before Mr. Zafar Iqbal Gill, Resident Magistrate of Pakpattan, district Sabiwal claiming to be a bona fide purchaser of the same. Muhammad Tufail, respondent No. 1, also similarly applied for superdari on the basis of being owner of the tractor. On 7-11-1974 the Resident Magistrate aforementioned decided both the applications by one order whereby he gave the tractor on superdari to Inayat Ullah petitioner on the basis of his claim of a bona fide purchaser from Sadar Din respondent No. 2 against a duly executed receipt which was produced in Court.
That receipt was allegedly executed by Muhammad Tufail respondent No. 1 in favour of Sadar Din respondent No. 2., on 21-9-1974. Since it required verification and comparison it was sent to the Forensic Science Laboratory for comparison of signatures and in the absence of the Laboratory report the tractor was given on superdari to Inayat Ullah petitioner, on 7-11-1974, but it was observed in that order that after the receipt of the report from the Laboratory the interested party could move the Court of the learned Magistrate for suitable orders. It appears that the afore-- mentioned Resident Magistrate prima facie found Inayat Ullah petitioner entitled to superdari of the tractor as a temporary measure till the receipt of report from the Laboratory and left the matter open for Muhammad Tufail, respondent No. 1, to apply for cancellation of superdari if negative report was received in respect of that receipt.
A negative report, dated 2-12-1974, of the Forensic Science Laboratory was received wherein it was mentioned that the alleged signatures of Muhammad Tufail, respondent No. 1, on the receipt were forged one. Consequently, Sadar Din, respondent No. 2, was arrested by the Police. Who succeeded in obtaining his release on bail and thereafter disappeared and never joined investigation.
2. On 16-12-1974, Muhammad Tufail, respondent No. 1 (complainant) in his capacity as owner of the tractor, applied to the same Resident Magistrate on the basis of the report of the Forensic Science Laboratory and prayed that superdari of Inayat Ullah petitioner before this Court be cancelled and he be directed to produce the tractor in Court. On that application the Resident Magistrate issued notice to Inayat Ullah petitioner to produce the tractor in Court on 30-12-1974 which notice was served on one Nasar Ullah Khan, real brother of Inayat Ullah, petitioner before this Court. It is alleged that Inayat Ullah, petitioner deliberately avoided the production of the tractor because no body appeared before the Resident Magistrate on 30-12-1974 and the tractor was not produced in his Court on that date as a result of which the Resident Magistrate cancelled his order, dated 7-11- 1974, giving the tractor on superdari to Inayat Ullah, petitioner, and directed the Police to recover the tractor and produce it in Court on 8-1-1975. Thereafter, the Police could succeed in recovering the tractor only on 4-3-1975 and kept it with itself.
Muhammad Tufail, respondent No. 1 then applied to the Resident Magistrate for superdari of the tractor, on 4-3-1975, and the Resident Magistrate after calling for a report from the Police passed order, on 22-3-1975, Annexure B with this file, whereby the Resident Magistrate gave the tractor on superdari to Muhammad Tufail, respondent No. I Inayat Ullah, petitioner filed a revision under section 439, Cr. P. C. Challenging the order, dated 22-3-1975 !Annexure B with the file) passed by the Resident Magistrate, Pakpattan which is before me for decision.
4. The learned counsel for Inayat Ullah, petitioner before this Court argued that after passing the order, dated 7-1 i-1974, the learned Magistrate became functus officio because of the provision contained in section 369, Cr. P. C. According to which a final order once passed by the learned Magistrate could not be reviewed ; that the Magistrate could not decide the question if the seller Le.' Sadar Din, respondent No. 2, had power to sell or not ; that Inayat Ullah petitioner was a bona fide purchaser from whom the tractor was recovered by the Police, therefore, the order of the Magistrate was liable to be revised because it was the petitioner who had the right to retain custody of the tractor pending trial. Of the case; and that Muhammad Tufail, respondent No. 1, had taken inconsistent plea with regard to the ownership of the tractor, in the F. I. R. He stated that his tractor was stolen be radar Din, respondent No. 2, but during the course of his arguments in the application of sunerdari of the tractor before the learned Magistrate it was argued on his behalf that the tractor had been given by him to Sadar Din, respondent No. 2 for repair.
The learned counsel appearing for respondent No. 2, Sadar Din, supported the arguments of the learned counsel for the petitioner and adopted it.
The learned counsel for Muhammad Tufail, respondent No. 1 (com--plainant), argued that the order, dated 7-11-1974, passed by the learned Magistrate was not a final order but was only an interlocutory order and the Court becomes functus officio only when a final judgment under section 369, Cr. P. C. Is passed and not otherwise. He submitted that section 369, Cr. P. C. Provides only that the Curt shall not alter or review its judgment after it has signed it which would mean a final and not an interim order like the case in hand. He further argued that the petitioner failed to produce the tractor in Court for three months and when he produced the tractor it was found damaged upon which the superdari of the petitioner was cancelled for breach of condition of superdari, on 30-12-1974, due to which the petitioner had no right to seek relief under section 439, Cr. P. C. For the revision of the order passed by the learned Magistrate giving the tractor on sapurdari to respondent No. 1. Lastly, he submitted that Sadar Din respondent No. 2. Could not pass a title to the petitioner better than the title he himself possessed and that Sadar Din, respondent No. 2, was not the owner of the tractor who according to the statement in the F.
1. R. Had stolen the tractor while according to the argument advanced at the time of passing of the order of superdari the tractor was with him for repair only.
The learned counsel for the State argued that the order, dated 7-11-1974, was interlocutory ;the petitioner before this Court accepted it as such and did not challenge to get the conditions incorporated therein removed ; and that section 516-A, Cr. P. C. Provides for proper custody and not for the custody based on title. He submitted that in the case in hand proper custody would he of the owner from whom the tractor was stolen and not the petitioner who claims himself to be a bona fide purchaser particularly -when the receipt of sale allegedly executed by Muhammad Tufail, respondent No. 1, in favour of Sadar Din, respondent No. 7,, had been found by the Forensic Science Laboratory to be a forged document. He relied on Fazal Dad v. State (1974 P Cr. L J 452in support of his contention that the order of superdari passed under section 516-A, Cr, t' C. Could he revised by the Magistrate.
5. The tractor was allegedly stolen on the night between 15/16-9-1975 but the F. I. R. In respect of the theft of that tractor was registered at the Police Station, Arifwata, District Sahiwal on 15-10-1975 and the tractor was recovered from the possession of the petitioner in District Gujranwala on the same day when the Police seized it as property alleged or suspected to have been stolen. It appears that no challan had yet been filed when the petitioner and respondent No. 1 filed application under sections 516-A and 523, Cr. P. C. For superdari of the tractor and Mr. Zafar Iqbal Gill, Magistrate 1st Class, Pakpattan, district Sahiwal ordered, on 7-11-1974, that the tractor be given on superdari to the petitioner. Evidently the tractor had not yet been produced in Court and no challan had been filed and the order appears to have been passed under section 523, Cr. P. C. The objection of the petitioner is that after passing of that order, dated 7-I1-1974, giving the tractor on superdari to the petitioner the learned Magistrate concerned had no power to alter or review it so as to give it on superdari to respondent No. 1, owing to the bar contained in section 369, Cr. P. C. Section 523, Cr. P.
C. Provides that the seizure by any Police Officer of property, alleged or suspected to ' have been stolen, shall be forthwith reported to the Magistrate who shall make such order as he thinks fit for the disposal of such property or for delivering the property to the person entitled to the possession thereof. Section 369, Cr. P. C. Provides that save as otherwise provided by the Code or by :,:3y other law for the time being in force no Curt including the Hiv!i Court. When it has signed its judgment, shall alter or review the same, except to correct a clerical error. The arguments of the learned counsel for the petitioner is based on these r provisions and he cited Ghulam Ali v. Emperor (1970 P Cr. L J 1235 in which it was held that where a Magistrate passes an order under section 523, Cr. P. C.
Directing the delivery of property on security to the person from whom it was recovered, he cannot subsequently vary that order and direct the delivery of that property to some other person e.g., the complainant. He also cited Faiz Ahmad v. State (AIR 1945 Lah. 47 which was distinguished in Fazal Dad v. State in support of his contention.
I do not dispute the proposition argued by the learned counsel for the petitioner and I agree with him that an order passed under section 523, Cr. P. C. Giving the property on superdari to tine person from whose. A possession it was taken cannot be varied or altered by the same learned Magistrate in view of the bar contained in section 369, Cr. P. C. However, this will not help the petitioner because his argument has no force on a different ground. The operative part of the order, dated 7-11-1974, passed by the learned Magistrate reads as follows "Without prejudicing the case of any of the party, the fact that there is a delay of one month in lodging the report coupled with the fact of receipt, executed by Muhammad Tufail in favour of Sadar Din and subsequently execution of sale receipt by Sadar Din in favour of Inayat, who is not a thief, prima facie, entitles him to the superdari of tractor, till a report is received from Director.
Forensic Laboratory, regarding the comparison of signatures of Muhammad Tufail.
Hence the upshot of the above discussion is that the application of Inayat Ullah son of Muhammad Ismail is allowed. He is allowed temporary superdari of Tractor No. 810/N. H. If he furnishes security in the sum of Rs. X0,000 (fifty thousand). The application of Muhammad Tufail is dismissed who is at liberty to apply for the cancellation of this order after the receipt of report from the Director, Forensic Laboratory Lahore."
A plain reading of the operative part of the above order would show , that it was passed as a temporary measure till such time as report was received from the Forensic Science Laboratory regarding the comparison of signatures of the parties on the receipt of sale produced in the case.
That order was not challenged by the petitioner in appeal or revision and became final for all practical purposes. The order itself was subject to the result awaited from the Forensic Science Laboratory. The Forensic Science Laboratory sent a negative report meaning thereby that the receipt of sala allegedly executed by Muhammad Tufail, respondent No. 1, in favour of Sadar Din, respondent No. 2, did not bear the signatures of Muhammad Tufail which was forged. As such Sadar Din, respondent No. 2, had no title in the property to bell it to the petitioner. It was on receipt of this negative report from the Forensic Science Laboratory that Muhammad Tufail, respondent No. 1 applied to the learned trial Magistrate in consonance with the concluding portion of his order, dated 7-11-1974, wherein he prayed for concellation of superdari of the tractor in favour of the petitioner upon which the learned trial Magistrate ordered the petitioner to produce the tractor in Court and on his failure to do so in spite of the service of summons on his real brother the learned trial Magistrate cancelled the superdart of the tractor in favour of the petitioner and ordered the Police to take custody of the tractor from the petitioner on 8-1-1975 but the Police succeeded in doing so only on 4-3-1975. On the same day i.e. 4-3-1975. Mubammad Tufail, respondent No. 1, applied to the learned trial Magistrate in his capacity as owner of the tractor and as complainant of that tractor to have been stolen from him for giving the same on superdari to respondent No. 1.
After hearing the parties the learned trial Magistrate by his impugned order, dated 22-3-1975, accepted the application of respondent No. 1 and directed the local Police to band over the tractor to Muhammad Tufail, respondent No. 1, on superdari. In these circumstances, I am of the view, that the order under revision was not passed to vary the earlier order because the earlier order was an interim order only subject to the report of the Forensic Science Laboratory. That order was accepted by the petitioner having not been challenged in appeal or revision for the condition incorporated therein. Therefore, the objection of the petitioner that it is hit by the provision of section 369, Cr. P. C. Has no force.
6. In view of the report of the Forensic Science Laboratory prima facie the tractor is a stolen property and respondent No. 1 is its owner while respondent No 2, Sadar Din, had no valid title to pass on its owner--ship to the petitioner. A stolen property cannot be given on superdari pending decision of the case to a purchaser from a thief. In the case of 4. .K. A. R. A. Cretryar v. Ma Saw Hla (AIR 1937 Rang. 450) it was held that where known facts plainly show the the property has been stolen it would be intolerable to allow the person to retain it as against the rightful owner and force the latter to a civil suit.
7. The petitioner did not challenge the order dated 7-11-1974 of the learned Magistrate which was of interim nature subject to the report of the Forensic Science Laboratory. He also failed to challenge the order of the learned Magistrate whereby his superdari was cancelled as a result of his failure to appear in Court and produce the tractor. Therefore, his present revision against the order giving the tractor on superdari to respondent No. 1 is not sustainable. It will be for the trial Court to go into the merits of the case and to ascertain the ownership of the tractor.
8. For the above discussion, in the circumstances of the case, the revision filed by the petitioner is dismissed.