' Through this Constitutional petition the petitioner seeks setting aside of order dated 8-1-2002 and 21-7-2001 passed by the learned Additional Sessions Judge and learned Judicial Magistrate and has prayed for the setting aside of the same by declaring them as illegal, without jurisdiction and without lawful authority and further prayed that the Superdari of the tractor trolly in question may be given to the petitioner.
2. Brief facts of the petitioner's case are that tractor bearing Registration No,MNG/ 3953 Model 1983 was purchased by Allah Bakhsh after obtaining loan from ADBP. Allah Bakhsh sold the same to Adrees Shah who thereafter sold it to Mumtaz Hussain on 24-4-2001 and in the Registration Book the said tractor was transferred in the name of the petitioner on 5-5-2001.
3. After the transfer of the above-said tractor in the name of the petitioner, Muhammad Aslam respondent No,1 got registered a case F.I.R. No,183 on 17-2-2001 under sections 420/406/119. P.P.C. At Police Station Bahlak in which it was alleged that Adrees Shah has sold the above-said tractor to him and received Rs, one lac from him. The possession of the tractor was also given to the respondent No,1 and the remaining amount Rs,85,000 were to be paid within one year and after the completion of the payment of the said amount the registration book and the transfer letter were to be given to the respondent No, 1 . Adrees Shah according to respondent No,1 Muhammad Aslam has committed fraud and has transferred the tractor in the name of the petitioner.
4. Learned counsel for the petitioner contends that the tractor was taken into possession in the above-said case by the police during the investigation and petitioner moved an application for the Superdari and the same was dismissed vide order dated 217-2001 by the learned Judicial Magistrate. Similarly Muhammad Aslam also filed the same application for the Superdari of the tractor which was also dismissed. Learned Judicial Magistrate did not give the 'Superdari to any of the parties till the decision of the Civil Court. Both the petitioner and respondent No,1 filed revision petition before the higher forum which were dismissed by the learned Additional Sessions Judge and it has been held that the tractor will be sold and the amount will be kept safely and handed over to the person who subsequently succeeds in the Civil Court. Learned counsel for the petitioner contends that the petitioner has a good prima facie case in his favour for the Superdari of the tractor as in the Registration Book the tractor is in his name, so also Adrees Shah supports the version of the petitioner that he has sold the tractor to him and tractor was taken into possession by the police in the above said F.I.R. From the possession of the petitioner, hence in such circumstances the petitioner is entitled to the Superdari of the said tractor. He relied upon 1992 SCM R 1454 and 1998 PCr.LJ 1090. It is further contended by the learned counsel for the petitioner that the owner of vehicle has been defined under the Motor Vehicles Ordinance, 1965 and according to subsection (24) of section 2, who is owner according to the Registration Book, will be treated as owner hence the petitioner is owner may be given Superdari of the tractor by setting aside both the orders and the remaining of the tractor in the police station will cause loss and damage to the said tractor as civil suit will take long time in its decision by the Civil Court.
5. On the other hand learned counsel for the respondent No,1 has opposed this petition on the ground that earlier Writ Petition No,3539 of 2001 was filed by the petitioner which was dismissed by this Court. Similarly another' Writ Petition No, 3495 of 2001 for the registration of the case was also dismissed by this Court. It is further contended that actually the tractor was given to the respondent No,1 by Adrees Shah after receiving the amount and it was in his ossession then Adrees Shah in connivance with officials of Police Station of Garh Maharaja took into possession the said tractor under section 550, Cr.P.0 which was subsequently taken on Superdari by Adrees Shah hence tractor was actually recovered from respondent No,1 and as well as it should be handed over to respondent No,1 instead of the petitioner. It is further contended that the petitioner may not be allowed to continue playing fraud.
6. I have heard the learned counsel for the parties and also perused the documents attached with this petition. In case F.I.R. No,183 the tractor was taken into possession when it was in possession of the petitioner. According to the Registration Book the petitioner is owner of the tractor and this vehicle has been transferred in his name on 5-5-2001 before the registration of the F.I.R. No,183 on behalf of the respondent No,1 under sections 406/420, P.P.C. In which this tractor has been taken into possession as case property. On the other hand respondent No 1 has no document in his favour to support the contention raised by the learned counsel for .Respondent No,1 that the amount of Rs,1 lac was paid to Adrees Shah by respondent No,1 Respondent No,1 has only made oral assertions in support of his contention. As the contention raised by him is supported by the documentary evidence the Registration Book and the transferring' his name. It is admitted fact that tractor was taken into possession in this case and the matter in dispute is the custody of the tractor on Superdari in case F.I.R. No,183. In such circumstances the petitioner has good prima facie case in his favour and he is entitled to the Superdari of the tractor. Both the learned Courts below` the learned Judicial Magistrate and the learned Additional Sessions Judge have not taken into consideration the material which was placed by them during the arguments. The case-law cited by the learned counsel for the petitioner is applicable to the facts and circumstances of the case and fully supports the contention raised by the learned counsel for the petitioner hence both the impugned orders dated 8-1-2002 and 21-7-2001 passed by the learned Judicial Magistrate and learned Additional Sessions Judge are set aside and the police is directed to hand over the tractor to the petitioner of Superdari after obtaining surety bond amounting to Rs,2 lacs from the petitioner. The petitioner will be bound to produce the tractor on each and every date of hearing during trial when the Court requires production of the tractor before it. This is an interim arrangement which will automatically elapse after the final decision of the civil suit and determination of the real owner by the Civil Court, where after the tractor will be given to the eligible person.
7. This writ petition is accepted in the above terms.