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Writ Petition No. 4839 of 1982, decided on 9th March, 1983.

---Ss. 523, 369 & 516-A--Provisional Constitution Order (I of 1981) , Art. 9--Superdari--Temporary Superdari of bus given to accused /petitioner by Magistrate cancelled and given to Police--First order of Magistrate giving Superdari to petitioner passed in pursuance of S.523, Cr.P.C.- Held, Magistrate:, although after having made his earlier order could not review or revise s--- account of bar of S.369, Cr.P.C. yet mere fact at order passed under S.523, Cr.P.C. had attained finality would not reclude trial Magistrate from passing an appropriate order under S.516-A--Challan expected to submit within a couple days, interference declined by High Court Jurisdiction.

Dilshad Ahmad v. The State etc. 1980 S C M R 54 8 Muhammad Younas The State and another P L D 1975 Lah. 744 ref.

Ch. Hamid-ud-Din for Petitioner.

Rashid Aziz:, Additional Advocate-General, Punjab for Respondents 1 and 2.

M. Arif for Respondent 3.

Date of hearing: 9th March, 1983.

This petition under Article 9 of the Provisional Constitution Order, 1981, calls question the judgment dated 1st December, 1982 of the learned Additional District Judge Toba Tek Singh.

The facts relevant for the disposal of this petition are that bus FDC-1799 was taken into custody by the police from the petitioner in a case under section 379 P.P.C. registered with Police Station Gojra, District Toba Tek Singh. The learned Magistrate Ist Class, Samundri, by order, dated 11th October, 1980, gave the temporary Sapurdari of the bus, in dispute. to the petitioner subject to his executing bond in the sum of Rs.1,50,000. This order was upheld in revision by order, dated 12th November, 1980 passed by the learned Sessions Judge, Faisalabad.

Subsequently, an application for cancellation of Sapurdari of the bus was made at the instance of Mr. Ahmed Khan A.S.I. The learned Magistrate after hearing the parties and perusal of record, by order, dated 20^th June, 1982, cancelled the temporary Superdari and directed the police to take into possession the bus, in question, from the petitioner Superdar. The petitioner filed revision petition against this order. The same was dismissed on 1st December, 1982 by the learned Sessions Judge, Toba Tek Singh. Hence this constitutional petition.

Learned counsel for the petitioner contends that the impugned order, dated 20th June, 1982 of the learned Magistrate, as well as the order, dated 1st December, 1982 of the learned Additional Sessions Judge, are wholly without jurisdiction, in that the earlier order of Sapurdari attained finality, inasmuch as, it was not challenged by he contesting respondent before any competent forum. In support of his contention, reliance was placed on Dilshad Ahmad v. The State, etc. 1980 S C M R 54 wherein it was held that once the question of Sapurdari under section 516-A, Cr.P.C. stars closed and the same is not assailed before any higher forum, the claim of the parties relating to Sapurdari on the merits of the case cannot be reopened. A number of other authorities were also cited by the learned counsel for the petitioner in support of his contention. 4. Ch. Muhammad Arif learned counsel for the contesting respondent placed reliance on the dictum laid down in Muhammad Younas v. The State and another P L D 1975 Lah. 744, wherein it was held that an ex arte order passed by a Magistrate under section 523, Cr.P.C. was interim in nature and the same could be reviewed subsequently.

5. The ratio laid down in Muhammad Younas's case is not attracted to the facts of the present case, in that in the precedent case, the learned Magistrate passed an ex parte order under section 523, Cr.P.C. whereas, in the instant case, the order for Superdari was passed by the learned Magistrate under section 523 Cr.P.C. after hearing both the parties. The first order entrusting the bus to the petitioner was made in pursuance of section 523, Cr.P.C. The learned Magistrate, having made this order, could not review or revise it, section 369, Cr.P.C. being a bar.

6. Be that as it may, I am not inclined to exercise my discretionary constitutional jurisdiction, in that the Investigating Officer who is present in the Court alongwith record has informed me that the challan is likely to be submitted in the Court within a couple of days. It may be observed that prior to the filing of this constitutional petition the learned Magistrate, Gojra, by order, dated 7th December, 1982, refused to cancel the case against the petitioner. This order was upheld by the learned Sessions Judge, Toba Tek Singh by order, dated 1st March., 1983. Further more, the mere fact that an order passed under section 523, Cr.P.C. has attained finality, would not preclude the trial Magistrate from passing; an appropriate order under section 516-A, Cr.P.C. The parties shall be at liberty to put forth their respective claims before the trial Court irrespective of the observations made in this order or earlier orders passed by the learned Magistrate and the revisional Court relating to Sapurdari.

In view of the above, the writ petition fails and is hereby dismissed with no order as to costs.

M.Y.H. Writ petition dismissed.

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