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Criminal Revision No. 546 of 1968, decided on 10th July 1968.

Ss. 107/151, 51 & 550‑Proceeding having been started by police against parties allegedly disputing possession of tractor jointly owned by them Police seizing tractor from party in possession and producing before Magistrate‑Magistrate giving tractor to person from whom it was seized by police, on superdari‑Magistrate on prayer of opposite‑party subsequently cancelling his earlier order of superdari and directing tractor to be delivered to police custody Held, tractor was neither stolen property nor created any suspicion of commission of offence as envisaged in S. 550, police had, in circumstances, acted illegally in capturing tractor.

S. 523‑Superdari Magistrate ordering Superdari of article‑Cannot cancel his order subsequently directing article to be given to police custody.

Ghulam Ali v. Emperor A I R 1945 Lah. 47 rel.

M. B. Zaman for Petitioner.

Muhammad Anwar Buttar for Respondent No. 1.

Mobasher Latif for the State.

Tractor No. S. A. 1659 was jointly owned by Mahboob Ali petitioner and Makhan, respondent, and was under the exclusive possession of the petitioner till 1st June 1968. Thereafter a dispute arose between the petitioner and the respondent with regard .to the use of the tractor and the police started proceedings against the parties under section 107/151 Cr. P. C. On the 1st of June 1968 one Muhammad Ishaq, a cousin of the peti tioner, had taken the tractor to Sheikhupura for the purpose of re‑fueling and the City Police Sheikhupura deprived Muhammad Ishaq of that tractor and took it into their posses sion. The petitioner on the 2nd of June 1966 moved the Duty Magistrate, Mr. Riaz Ahmad, for the return of the tractor claiming to be its owner. The learned Magistrate passed an order giving the tractor on superdari to the petitioner. On the 3rd of June 1968 the petitioner took the tractor into his possession. On the 4th of June 1968 the respondent moved an application before the learned Magistrate praying that the order of superdari regarding the tractor may very kindly be cancelled in order to avoid breach of peace and the tractor in question be given back to the custody of the local police. On the same day the learned Magistrate passed the following order:

"Notice to the superdari for 6th June 1968."

On that very day, i.e., the 4th of June 1968, one Saleh Muhammad, Reader of the Magistrate, in question under his own signature issued notice to the S. H. O. Police Station City, Sheikhupura directing that the superdar should produce the tractor before the Court on the 6th of June 1968. It may be mentioned here that there was no order of the Magistrate directing the superdar to produce the tractor before the Court, but it was only the Reader who had passed that order and sent it to the S. H.O. for service. On the 5th of June 1968, Naib Muharrir Nazir Ahmad, Police Station City, Sheikhupura directed that this order be handed over to Muhammad Yasin Foot Constable No. 44 for service on the petitioner. Muhammad Yasin on the 5th of June 1968 made a report that from the 4th of June 1968 to 5th June 1968 he had been trying to contact the petitioner at his house, but could not find him and, therefore, the petitioner was trying to evade service. On the 6th of June 1968, the report was sent to the Magistrate concerned. On the 14^th of June 1968 none of the parties was present and the Magistrate proceeded to cancel the order of superdari in favour of the petitioner and directed that it should be handed over to the police. Against that order the petitioner has come up in revision to this Court.

2. In the first place the police had acted illegally in capturing the tractor from Muhammad Ishaq, a cousin of the petitioner, on the list of June 1968. The powers of the police for taking possession of the property are mentioned in section 51 and 550, Cr. P. C. Section 51 reads as follows:‑--

"Whenever a person is arrested by a police officer under a warrant which does not provide for the taking of bail, or under a warrant which provides, for the taking of bail, but the person arrested cannot furnish bail, and

whenever a person is arrested without warrant, or by a private persons under a warrant, and cannot legally be admitted to bail, or is unable to furnish bail,

the officer making the arrest, or, when the arrest is made by a private person, the police officer to whom he makes over the person arrested may search such person and place in safe custody all articles, other than necessary wearing apparel, found upon him."

Section 550, Cr. P. C. reads as follows:‑--

"Any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence, such police officer, if subordinate to the officer in charge of police station, shall forthwith report the seizure to that officer."

From the perusal of the above section it is clear that the tractor in question could not have been seized by the police. Secondly, I find that the Magistrate also could not have passed any order giving the tractor on superdari to the petitioner, when the powers of the Magistrate with regard to the disposal of the property are mentioned in sections 516‑A, 517 and 523, Cr. P. C. Section 516‑A reads as follows:‑

"When any property regarding which any offence appears to have been committed or which appears to have been used for the commission of any offence, is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy or natural decay, may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of."

Section 517 reads as follows :‑--

"When an inquiry or a trial in any Criminal Court is concluded, the Court may make such order as it thinks fit for the disposal (by destruction. Confiscation, or, delivery to any person claiming to be entitled to possession thereof or otherwise) of any property or document produced before it or in its custody or regarding which any offence appears to have been committed, or which has been used for the commis sion of any offence.

(2) When a High Court or a Court of Session makes such order and cannot through its own officers conveniently deliver the property to the person entitled thereto, such Court may direct that the order be carried into effect by the District Magistrate.

(3) When an order is made under this section such order shall not except where the property is livestock or subject to speedy and natural decay, and save as provided by subsec tion (4), be carried out for one month, or, when an appeal is presented, until such appeal has been disposed of.

(4) Nothing in this section shall be deemed to prohibit any Court from delivering any property under the provisions of subsection (1) to any person claiming to be entitled to the possession thereof, on his executing a bond with or without sureties to the satisfaction of the Court, engaging to restore such property to the Court if the order made under this section is modified or set aside on appeal)."

Section 523 reads as follows:‑--

"(1) The seizure by any police officer of property taken under section 51, or alleged or suspected to have been stolen, or found under circumstances which creates suspicion of the commission of any offence, shall be forthwith reported to a Magistrate, who shall make such order as he thinks fit respect ing 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.

(2) If the person so entitled is known, trio Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit. If such person Is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation."

This tractor is neither the property which is alleged to have been stolen nor was found under those circumstances, which rested suspicion of the commission of any offence. In the present case the criminal proceeding were only under section 107/151, Cr. P C. and, therefore, there was no question of any property being involved. It appears that the Magistrate did not even care to read the relevant sections of the Criminal Procedure Code before he passed the orders. Further the Magistrate having once passed an order under section 523, 6 Cr. P. C. giving the tractor to the petitioner on superdari could not have cancelled that order subsequently and give the tractor to the police instead. In case Ghulam All v. Emperor (A I R 1945 Lah. 47) it was held:‑--

A criminal Court cannot review its own judgment and there fore, where a Magistrate passes an order under section 523, directing the delivery of property on security to the person from whom it was recovered, the Magistrate cannot subsequ ently vary that order and direct delivery of the property to some other person."

I also find that the Magistrate was not even able to control his own Reader because he under his own signatures issued an order to the Station House Officer to effect service on the superdar with the direction to produce the tractor in question in Court. I, accordingly, find that every thing which was done from begin ning to end was illegal. I, therefore set aside the order of the Magistrate dated the 14th of June 1968 and direct that the tractor be handed over to the petitioner from whom it was taken, because it is a well‑established principle of law that person from whose possession property is seized and who is not found to have committed any offence, such as would render his possession unlawful, is the person entitled to its possession.

A.E. Revision accepted.

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