' Mst. Mumtaz Akhtar, who possesses power of attorney on behalf of her husband Ali Muhammad, filed this revision petition under sections 435 and 439, Cr. P. C. Against the order of learned Additional Sessions Judge, Gujranwala, dated 6-11-1975, whereby revision petition filed by Abdur Rauf Shah was accepted and it was ordered that the disputed tractor be restored to him (Abdur Rauf Shah). Ali Muhammad got a case registered against Abdur Rauf Shah respondent No, 2, Noor Shah and Abdur Rahim, on 16-4-1975, under section 379, P. P. C. At Police Station, Vaniketarar. He disclosed in the F.
1. R. That he got 118 acres of land on leaf e for a period of ten years and for that purpose, purchased the disputed tractor and installed a tube-well ; that the work had been entrusted to Abdur Rauf Shah respondent No, 2 as he (complainant) used to remain away in connection with his business and could not personally control the farming ; that Noor Shah worked at the tube-well while his son Abdur Rahim worked as a tractor driver. He further mentioned in the F. I. R. That 15 days ago, Abdur Rauf Shah, Noor Shah and Abdur Rahim had stolen his tractor and besides, two years lease money which Abdur Rauf Shah received from him, had not been given to the land owner. He also disclosed that the accused had disposed of 77 maunds and 20 seers of wheat. During the investigation of the case, Ali Muhammad submitted an application to the Ilaqa Magistrate for handing over the tractor to him on superdari. The police submitted the report to the Ilaqa Magistrate on 25-4-1975, mentioning that a case under section 379, P. P. C. Had been registered against Abdur Rauf Shah, Noor Shah and Abdur Rahim in respect of the theft of the tractor and during the Investigation of the case, tractor had been recovered from the possession of Noor Shah. The S. H. O. Also mentioned in the report that Ali Muhammad had produced a receipt about the disputed tractor. After perusing the report submitted by the police, the Ilaqa Magistrate passed an order on 26-4-1975, to the effect that the tractor be given to the real owner on superdari with the condition that he would produce it in Court on each date of hearing. Having felt aggrieved of the order passed by the Ilaqa Magistrate, Abdur Rauf Shah filed a petition under section 520, Cr. P. C. Before the learned Sessions Judge, on 4-8-1975. The learned Additional Sessions Judge, vide his order dated 6-11-1975, accepted the petition, set aside the order of superduri passed by the Ilaqa Magistrate in favour of Ali Muhammad and ordered the restoration of the tractor to the petitioner. Against this order, Mst. Mumtaz Akhtar has come in revision.
3. It was contended by the learned counsel for the petitioner that the learned Additional Sessions Judge had no jurisdiction to pass an order under section 520, Cr. P. C, because the Ilaqa Magistrate had not passed the order of superdari under section 517, 518 or 519, Cr. P. C. ; that during the investigation of the case, the S. H. O. Had prepared report under section 173, Cr. P. C., on 20-6-1975, making recommendation that the challan be submitted in Court and the D. S. P., Hafizabad had agreed with the said report, but the accused party appeared before the S. P. Who ordered, for the reinvestigation of the case and the case was re-investigated. Ultimately, the case was recommended to be cancelled. In the meantime, Mst. Mumtaz Akhtar filed a complaint before the Ilaqa Magistrate regarding the theft of the tractor etc. And the complaint is still pending.
4. It was submitted by the learned counsel for Abdur Rauf Shah respondent No, 2 that in fact Abdur Rauf Shah was a partner with Ali Muhammad in the lease and he had invested huge amount of money ; that the disputed tractor was jointly owned by him and Ali Muhammad and thus, he was not guilty of offence of theft ; that the receipt about the purchase of disputed tractor was not the original receipt and it was a fabricated document; that Muhammad Hayat had filed an affidavit to the effect that he had sold the tractor to Abdur Rauf Shah and Ali Muhammad ; that after investigation, the police came to the conclusion that no criminal case had been made out against the respondent No, 2.
5. The petitioner placed on record receipt Annex. 'A' and according to this receipt, Ali Muhammad had purchased the disputed tractor from Mistri Muhammad Hayat, on 11-6-1974. Copy of qabuliatnama had been placed on the record and it showed that Alamdar Hussain resident of Alipur Chhatha, Tehsil Wazirabad, District Gujranwala, had leased out his land for ten years to Nazar Muhammad son of Bahawal Bakhsh resident of Kotli Raees, Ali Muhammad and his brother Sardar Muhammad and nephew Ghulam Qadir. Respondent No, 2 failed to bring on record any document to show that he had entered into partnership with Ali Muhammad etc. To determine as to whether the receipt produced by the present petitioner or the affidavit of Mistri Muhammad Hayat, is false, requires recording of evidence. The contention of the learned counsel for the petitioner that petition under section 520, Cr. P. C. Was not competent before the learned Additional Sessions Judge, has much force behind it. The disputed tractor was taken into possession by the police during the investigation of the case and the learned Magistrate passed order about the superdari under the provisions of subsection (1) of section 523, Cr. P. C. Where no inquiry or trial is pending in a criminal Court, the proper section to apply will be section 523, Cr. P. C. Section 516-A, Cr. P. C. Enables the Magistrate to provide for the interim custody of the property pending the conclusion of inquiry or trial while section 517 provides for the disposal of the property after an inquiry or trial is over. Under section 520, Cr. P. C., Court of appeal, confirmation, reference or revision may direct any order under section 517, section 518 or section 519, passed by a Court subordinate thereto, to be stayed pending consideration by the former Court, and may modify, alter, or annul such order and make any further orders that may be just. In the present case, the Ilaqa Magistrate had passed an order under the provisions of section 523, Cr. P. C. As the case was still under investigation and no inquiry or trial was pending. Hence petition under section 520, Cr. P. C. Was not competent before the learned Additional Sessions Judge. I accept this petition, set aside the impugned order and direct the S. H. O., Vaneketarar, to take into possession the disputed tractor and keep it within the premises of the police station.
' A complaint is pending before the Magistrate regarding the theft of the disputed tractor. He is holding the enquiry. It shall be open to him to pass an order under the provisions of section 516-A, Cr. P. C. For the custody of the tractor, which shall be deemed to be before the said Court during the inquiry or trial.