P L D 1968 Lahore 1290 (PLP)

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.