MUHAMMAD FAZIL Versus STATE

This is a revision by Muhammad Fazil son of Ali Muhammad against a part of the order of Mr. Muhammad Ismail Loons, Sessions Judge, Jhelum, dated 20‑3‑1973, whereby he directed the petitioner to seek his remedy about the possession of the mare in a civil Court.

2. The facts briefly are that one Muhammad Rafiq was driving a tonga on 28‑2‑1971. The mare in question was harnessed in the tonga. The police stopped the tonga and took the mare into possession. Then after an F. I. R. was lodged by Mian Khan complainant claiming the mare to be his property, which was said to have been stolen from his field. This tonga belonged to Muhammad Fazil petitioner and Muhammad Rafiq, tonga Driver, vas his servant. During the investigation Muhammad Fazil stated that he had purchased the mare from one Wlayat Khan for R3. 500 and produced a receipt for the same. Wlayat Khan stated that he had purchased the mare from Saee Muhammad accused. Consequently, Saee Muhammad was challaned and tried for an offence under section 411, P. F`. C. At the trial he took up the position that the mare belonged qc) him but he had sold it to Wlayat Khan, who in turn sold it to Muhammad Fazil petitioner, against receipts. The learned trial Magistrate acquitted Saee Muhammad by his judgment dated 17‑2‑1973 observing that the prosecution case against him had not been proved. No order was, however, made with regard to the disposal of the case property, namely, the mare. Muhammad Fazil petitioner had made an application before the learned trial Magistrate. whereupon, he (the learned trial Magistrate) made tile fallowing order at the end of the last paragraph of his judgment:

Muhammad Fazil P. W. has submitted an application before this Court that as he was the owner of the mare at the time of its recovery, therefore, it should be given to him. He is directed to seek remedy in the civil Court and establish his ownership in the said Court.

Hence the present revision petition.

3. It is submitted on behalf of the petitioner that since the ca against the accused has not been proved and it has been brought on the record that Muhammad Rafiq, the person from whom the mare was recovered as well as Saee Muhammad, the accused in the case, both admitted the mare to be the property of Muhammad Fazil petitioner. The learned trial Magistrate had, therefore, erred in not ordering the handing over of the mare to Muhammad Fazil petitioner because in the circumstances of the case he is the person most entitled to the possession of the mare. It is true that the criminal Courts cannot decide the question of title or ownership in such cases, but there does not appear any dispute in this case as to the ownership. However, it is open to

4. The net result is that the petition is accepted and the mare is ordered to be handed over to Muhammad Fazil petitioner.

Revision allowed.