NAZAKAT HUSSAIN Versus THE STATE

This criminal revision has arisen out of a dispute over a truck between Nazakat Hussain petitioner and Manzur Hussain respondent No. 2 which is involved in a criminal case registered under sections 420 and 406, P. P. C. at police station Dina of Jhelum District. When in the course of investigation the question of the custody of the truck arose, Mr. Irshad‑ul‑Hassan, A. D. C(G), Jhelum, presumably exercising his Magisterial powers refused to deliver the truck on Sapurdari to Nazakat Hussain petitioner and left the question to be decided by the trial Court after the submission of Challan.

When the Sessions Judge, Jhelum, was moved in this behalf by the petitioner under sections 435, 438 and 439, Cr. P. C. the learned Sessions Judge made the present reference with the recommendation that the order of the learned Magistrate be reversed.

2. Since the challan in the case has not yet been put in Court, the question of Sapurdari should have been dealt with under section 523, Cr. P. C. It was wrong to have left it undecided until such tune as evidence was recorded at the trial.

However, since, under the order of the learned Magistrate the truck remains in the custody of the police, it is not necessary to reverse that order while deciding the present reference. The case is, nevertheless, remanded to the Ilaqa Magistrate to decide the question of custody afresh in accordance with law. The order of the A. D. C.(G) dated 13th of July 1973, shall be subject to the order of the I1aqa Magistrate.

3. The revision petition/reference stands disposed of accordingly.

Order accordingly.