The brief facts out of which the present writ petition arises are that the petitioner got a case registered against respondent No. 1 vide F. I. R. No 481 of 1998 at Police Station, Kamoki. The matter was investigated. The petitioner and respondent No.1 filed applications to provide the Peter Engine on Superdari to them before the Illaqa Magistrate, Gujranwala. The application of the petitioner was accepted and the application of respondent No.1 was rejected by the learned Illaqa Magistrate vide order dated 18-6-1999. Respondent No.1 being aggrieved filed revision petition before the learned Additional Sessions Judge, Gujranwala, who accepted the revision petition of the respondent vide order, dated 18-1-1999 hence the present writ petition.
2. The learned counsel of the petitioner submits that the revisional Court has no jurisdiction to take the cognizance of the matter as the Engine in question was given to the petitioner by the Illaqa Magistrate on Supurdari under section 516-A, Cr.P.C. The revision under section 520, Cr.P.C.
Competent only against the order passed by the Magistrate under sections 517, 518 and 519, Cr.P.C.
He further submits that the revisional Court handed over the Engine in question on Superdari to respondent No.1 merely on the ground that the suit between the parties is pending adjudication before the competent Court. He further submits that respondent No. 1 filed the suit for declaration against the petitioner before the learned Civil Judge, Gujranwala alongwith an application under Order 39, Rules 1 and 2, C.P.C. Which was rejected by the learned Civil Judge, Gujranwala vide order, dated 26-5-1999 and directed that the Peter Engine in question be handed over to the petitioner on Superdari till the decision of the suit; therefore, the impugned order of the revisional Court on merits, is not sustainable in the eyes of law.
3. The learned counsel of the respondent submits that respondent No.1 purchased the land measuring 10-Kanals from the real brother of the petitioner namely Abdul Razzaq on 3-5-1997 through registered sale deed. The contents of the sale deed clearly reveal that the Peter Engine in question was also sold by the brother of the petitioner to respondent No.1. He, further submits that notice was also sent by the uncle of the petitioner to Abdul Razzaq to file a pre-emption suit, therefore, the aforesaid F.I.R. Was lodged by the petitioner mala fide to stop their uncle to file the suit against respondent No.1. He further urges that mere reading of F.I.R. Clearly reveals that the order of the revisional Court is not in accordance with law keeping in view the ingredients of section 145, Cr.P.C. The petitioner had already sold his whole holding in the year 1997. Mr. M.A. Zafar, Advocate is present in the Court, he is requested to appear to assist the Court as amicus curiea qua the maintainability of the revision filed by respondent No.1 before the learned Additional Sessions Judge, Gujranwala under section 520, Cr.P.C. He submits that revision filed by respondent No. 1 was not competent.
4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
5. The revision petition filed, by respondent No. 1 before the learned Additional Sessions Judge, Gujranwala was not competent under section 520, Cr.P.C. As per principle laid down by the superior Courts in the following judgments:--
1. Mst: Gulshan v. The State (1971 PCr.LJ 1279),
2. Malik Saifullah v. Ch. Rehmat Ali, S.-I. (1993 M LD 542),
3. Haji Ghulam Kadir v. State (1974 PCr.LJ 228),
4. Mst. Mumtaz Akhtar v. State (1977 PCr.LJ 168).
6. In view of what has been discussed above, the impugned order passed by the learned Additional Sessions Judge, Gujranwala, dated 18-1-1999 is without lawful authority, therefore, the same is set aside.
S.M.A.H./M-1555/L