' By this petition under Article 199 of the Constitution read with section 561-A, Cr. P. C. The petitioner seeks quashment of an order passed by the Resident Magistrate, Ferozewala, on 19-10-1976 affirmed in revision by the Additional Sessions Judge, Sheikhupura, on 15-1-1977, with regard to the superdari of a tractor recovered from the possession of the petitioner.
2. It is stated that the petitioner had purchased a tractor from its owner by a receipt. All the same, it was recovered from his possession by the police as a suspected stolen property on 27-9-1976. An F.
I. R. Was registered at P. S. Sharakpur, with respect to the theft of a tractor on 30-9-1976 i,e, after its recovery from the petitioner. An application was made by respondent No, 1 claiming the superdari of the tractor which was recovered from the petitioner. The Magistrate without serving a notice on the petitioner but after getting a report from the police, ordered that it should be handed over on superdari to respondent No,
1. In the meantime, the petitioner also moved for the superdari of the tractor but he filed an application before the Assistant Commissioner who finding that the question of superdari had already been dealt with by the Resident Magistrate did not further proceed in the matter. Confronted with such a situation the petitioner filed a revision petition against the order of the Resident Magistrate which was dismissed by the Additional Sessions Judge on 15-1-1977. Hence this Constitutional petition.
3. It has been contended by the learned counsel for the petitioner that the petitioner was a bona fide purchaser of the tractor and this could be established by a number of documents and receipts possessed by him. On the legal side, it was urged that there was no provision in the Criminal Procedure Code whereby a property recovered from him could be made over to respondent No, 1.
Such an order has been passed without hearing him. As regards the order passed by the Additional Sessions Judge, it is stated that the records were not called for and hence it also suffers from a defect in law.
4. In resisting the claim made by the petitioner on the factual and the legal side, the respondent No, 1 has stated that the documents filed by the petitioner or relied upon by him, are forged and that the tractor continues to be his property and was never sold. Additionally it is stated that he is equipped with an injunction of the civil Court with regard to the custody of the tractor.
5. Admittedly, in this case the tractor was seized by the Police as a suspected stolen property and on that account the case squarely falls under section 523, Cr. P. C. And the Resident Magistrate has been empowered under that law "to make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof or if such person cannot be ascertained respecting the custody and production of such property." The Resident Magistrate proceeded under this provision of the law and had the jurisdiction to deal with the property. If at all, the petitioner considered himself aggrieved by not having been afforded an opportunity of hearing, he could go before the Magistrate and represent his case as the Magistrate was all the time, competent to regulate the custody on fresh material having been brought to his notice. This was not done. Instead the previsional forum was availed of and there the petitioner obtained hearing. Therefore, these grounds are not available for challenging in the Constitutional jurisdiction the order passed.
6. The record was obtained from the two Courts below with a view to ascertain whether in fact a denial of hearing had taken place. It appears that with the revision petition a stay order was claimed against the transfer of tractor from the police custody to respondent No, 1 under the orders of the Resident Magistrate under challenge. For that purpose the record had been called and it appears was available with the Additional Sessions Judge when he dealt with the case. Therefore, proper hearing and notice had been given.
7. It may be a hard case where the tractor recovered from the petitioner has been given over to respondent No, 1 and there is also apparently a factual error in the order which assumes that the first information report was lodged earlier and recovery took place during the course of the investigation of the case. Nevertheless, it is not possible to make available the Constitutional jurisdiction of this Court for interfering with the orders defective not on the legal or the jurisdictional ground but on the plane of propriety. Further, I find that there is a contested question of fact with regard to the A ownership and sale of the property and would not, therefore, like at all to interfere in this matter in the Constitutional jurisdiction. The petition is, therefore, dismissed and no order is made with regard to costs. Record to be returned forthwith.