' Instant writ petition is directed against the order, dated 22-5-1998 passed by learned Additional Sessions Judge, Depalpur, whereby he handed over the custody of tractor to Muhammad Ramzan respondent No, 1.
2. Briefly stated the facts are that Din Muhammad alias Manda is owner of a tractor bearing registration No,OKB-8864. The petitioner Muhammad Yousaf claims to have purchased the same vide agreement to sell/affidavit, dated 1-8-1997. He further claims that he was issued a sale receipt as well as open transfer letter on 27-8-1997 and was also handed over its registration book. That the said tractor was stolen on 26-2-1998 and he tried to get a case registered, but he failed in his efforts as nephew of respondent No,2 is an employee of Police Department. That the said tractor was taken into possession under section 550, Cr.P.C. Vide report No,32, dated 6-4-1998 from the possession of Muhammad Ramzan respondent No,1, while it was carrying registration No,OKB-8662, which was found to be forged as per Excise and Taxation record and the same was cancelled and notice was issued to respondent No,2 for depositing fake registration book. Thereafter, the petitioner moved the trial Court for seeking the Superdari of tractor which was granted to him vide order, dated 13-4-1998. Before the said order could be implemented Muhammad Ramzan respondent No,1 also moved a similar application, dated 20-4-1998 with respondent No,4 for seeking its Superdari. Upon this a report was called by the trial Court from the Excise Department as to which of the registration book is genuine. Before the matter could be decided, respondent No,1 filed a revision petition against order, dated 13-4-1998 wherein the lower Court was directed to record evidence and then to decide the petition for Superdari. Accordingly trial Court recorded evidence and finally ordered that tractor be given on Superdari to Muhammad Ramzan respondent No,1 vide order, dated 22-5-1998. Hence the instant writ petition.
3. Arguments have been heard and record perused.
4. The main contention of learned counsel for the petitioner is that he purchased the tractor from respondent No,2 vide sale receipt, dated 27-8-1997 and was also issued an open transfer letter and was also delivered its registration book, so he is the rightful owner of the same, and is entitled to retain its custody and relied upon Mst. Gul Zarin v. The State and 2 others 1980 PCr.LJ 158 (Karachi), Muhammad Alam Khan v. Sakhawat Ali and others 1973 PCr.LJ 617 (Lahore) and Syed Nizamuddin v.
The State and another 1972 PCr.LJ 678 (Karachi). He further contends that Muhammad Ramzan respondent No,1 also claims his right of ownership in respect of the said tractor but his document of title has been cancelled by the department, as such trial Court was not justified in handing over its custody vide order, dated 22-5-1998. He next argued that as both parties are claiming ownership of tractor, so to avoid its misuse, its delivery be allowed to be retained by police and relied upon Hameed Ahmad v. Imran Khurshid and 4 others 1997 PCr.LJ 1461 (Lahore). He thus, submitted that by accepting this writ petition, impugned order, dated 22-5-1998 be set aside.
5. Conversely, the contention of learned counsel for respondent No,1 is that as no offence has been proved or appears to have been committed with regard to the property required to be disposed of under section 561-A, Cr.P.C. And the property has not been used in the commission of any offence, the same should be returned to the person from whom it was taken, unless there are special circumstances which would justify the adoption of different course and relied upon Central Cooperative Bank Sargodha v. Ahmad Baksh PLD 1970 SC 343. He next argued that as no report regarding seizure of tractor under section 550, Cr.P.C. Was made to Area Magistrate as required by section 523, Cr.P.C. So the very seizure is illegal and property had to be returned to respondent No,1 and relied upon Muhammad Ramzan v. Station House Officer, Police Station Baghbanpura, Lahore and 2 others 1995 PCr.LJ 1947 (Lahore). He next argued !Hat the trial Court has recorded the statement of Muhammad Din alias Manda, the original owner, who categorically stated that he never sold the tractor to petitioner and sold the same to respondent No,
1. That in view of his statement coupled with law cited above, petition is not maintainable and merits dismissal.
6. As discussed above, both the petitioner and respondent No,1 claim their respective right of ownership in respect of tractor and both of them have documents in support of their respective stand. The question of title over the disputed tractor is to be decided by a Court of competent jurisdiction. At present it is fact that tractor was taken into custody under section 550, Cr.P.C. From respondent No,1 on 6-4-1998. It is also fact that matter was not reported to Area Magistrate as required by section 523, Cr.P.C. It is also fact that till today no case has been registered with police regarding this tractor. It is also fact that as per statement of Muhammad Din alias Manda, he admits sale in favour of respondent No,1 and denies its sale in favor of the petitioner. It is also fact that property can be given on Superdari under section 516-A, Cr.P.C. If some offence appears to have been committed or which appears to have been used for the commission of any offence.
Admittedly the ingredients of section 516, Cr.P.C. Are lacking in the instant case, as no case whatsoever has been registered in respect of this tractor. Thus, under these circumstances, the tractor has to be returned to the person from whom it was taken, as held by the authorities referred by the learned counsel for respondent No,1. The authorities referred by the learned counsel for the petitioner are not applicable to the facts in hand, as in all these cases matter had been reported to Police. This being the factual and legal position, order, dated 22-5-1998 passed by the learned Additional Sessions Judge, granting Superdari to Muhammad Raman is neither illegal nor unlawful nor without jurisdiction. Resultantly, writ petition fails and is hereby dismissed.