2003 PLP 3276 (YLR)

Muhammad Khalid Ashraf Khan for Petitioner. Rafique Ahmad Qureshi for Respondent No.

3. Tanvir Haider Buzdar for the State. Date of hearing: 14th October, 2002. Through this petition under section 561‑A, Cr.P.C. the petitioner seeks setting aside of order dated 21‑2‑2002 by which learned Additional Sessions Judge has accepted the revision petition of respondent No.3 and has given the lathe machine to the respondent No.3 by setting aside the order of the Magistrate 1st Class.

2. Brief facts of the case are that report was entered in the daily Roznamcha on 10‑5‑2001 by the S.H.O. at Police Station Ghalla Mandi, Sahiwal that he took into custody tractor/trolley under section 550, Cr.P.C. on which two lathe machines were loaded as he suspected the same as stolen property. The petitioner and respondent No.3 moved applications for the Superdari of the same. The application of both the parties were dismissed by the learned Magistrate 1st Class against which revision petition was filed by the respondent No.3 which has been accepted. Learned counsel for the petitioner contends that brother of the petitioner Tariq, had taken away the disputed property which was owned by the petitioner and sworn an affidavit in favour of the petitioner having sold him the machinery including the articles in dispute for Rs.2 lacs and giving of the possession of the workshop to the petitioner, which affidavit was sworn on 19‑11‑1998 by said Tariq but subsequently he wrongly entered into an agreement to sell with Mubarik respondent No.3 showing that disputed property and other material were sold to him for an amount of Rs.1 lac 20 thousands while receiving the total amount from him. It is further contended that learned Additional Sessions Judge has wrongly handed over on Superdari these machines to the respondent No.3 in spite of that he was not found in possession of any material but while showing that he was owner of the said property. It is further contended that the learned revisional Court has not considered that the property was taken into possession from Tariq and not from respondent No.3 as has been mentioned in the order and due to this misconception it has been passed. It is further contended that the title of the property is not dear which is liable to be kept in the Police Station till the disposal of the declaratory civil suit filed regarding the same property. He relied upon 1972 SCMR 159 and PLD 1961 Lahore 205 and prays for the acceptance of this petition.

3. Learned counsel for respondent No.3 has opposed this petition on the ground that Tariq from whose possession the property was allegedly taken into custody by the police has not only made the statement before the police but has also made a statement before the Magistrate in which he has stated that he had sold these machines to the respondent No.3 and in such circumstances there was sufficient material on the record in favour of the respondent No.3 on the basis of which learned Additional Sessions Judge has rightly handed over these machines to respondent No.3 as remaining of these machines in the police custody can result in damage of the machines.

4. I have heard the learned counsel for the parties and also perused the impugned order. The learned revisional Court has relied upon the statement of Tariq from whom the alleged property was taken into possession by the police under section 550, Cr.P.C. and in the circumstances of this case the statement of Tariq was relevant for the purpose of disposal of the same on Superdari by the Courts below. Tariq appeared before the learned Magistrate and stated that he had sold this property to respondent No.3. On the other hand petitioner has failed to show any document except the affidavit allegedly sworn by respondent No.4 in the year 1998 that he had given 3 lathe machines to the petitioner. It cannot be said that these machines were the property which is mentioned in the said affidavit. On the contrary Tariq has clearly stated in favour of respondent No.3 before the learned Magistrate. In such circumstances, when an order has been passed in favour of the respondent No.3 for the Superdari of certain articles it can only be set aside on reasonable grounds while exercising the inherent powers under section 561‑A, Cr.P.C. The petitioner has failed to show any reasons and a better claim than respondent No.3 over the said property. He had also not filed any revision petition and only insists upon the remaining of the lathe machines in possession of the police which definitely will be damaged if are kept in the police custody for unlimited period. As the petitioner himself has not filed any civil suit so far for the custody of these material/case property and also has not initiated any criminal proceedings against Tariq his real brother who allegedly had taken away these articles from his factory, I do not find any reason for interference in the order passed by the revisional Court which otherwise is based on reasonable grounds. No ground is made out for interference by this Court. Hence this petition is dismissed. However, the petitioner can file civil suit for declaring the ownership of the disputed property and the learned Civil Court will be at liberty to pass a decree without being influenced by the impugned order of this order and also can decide afresh regarding giving of the disputed property even on interim custody to any of the party keeping in view the facts and circumstances of the case. H.B.T./M‑2044/L??????????????????????????????????????????????????????????????????????????????? Petition dismissed.