FAZAL HUSSAIN vs THE STATE AND 2 OTHERS

' This order will dispose of Criminal Revision No, 578 of 1973 and Criminal Revision No, 584/74.

2. The essential facts are: that Muhammad Din and Gulzar Ahmad are closely related to each other (being brothers-in-law). They had jointly purchased a tractor. This tractor was sold to Fazal Hassain on 27-11-1973, by Gulzar Ahmad. On 29-1-1974, Muhammad Din lodged an F. I. R. Under section 382, P. P. C. With regard to the theft of his tractor in which Gulzar Ahmad was cited as the principal accused. The petitioner Fazal Hussain was not cited in the F. I. R. As an accused person although it was mentioned in the F. I. R. That the complainant had learnt that the tractor had been sold away to some third party. In May 1974, Fazal Hussain filed a declaratory suit before the learned Civil Judge, Alipur that the plaintiff (Fazal Hussain) was the owner of the tractor and prayed for issuance of an injunction in his favour till the disposal of the suit. A temporary injunction to this effect was granted by the learned Civil Judge on 21-5-1974.

' On 13-6-1973, in pursuance of the F. I. R., lodged by Muhammad Din in the theft case, the S. H.

0. Rohilwali, Tehsil Alipur recovered the tractor from the custody of the petitioner (Fazal Hussain and submitted a report before the Ilaqa Magistrate recommending that its custody should be given to Muhammad Din complainant. The learned Magistrate, accordingly passed an order giving custody of the tractor to Muhammad Din. Aggrieved by the said order Fazal Hussain immediately applied to the learned Magistrate on 15-6-1974 bringing all the relevant facts to his notice whereupon the order dated 14-6-1974 was modified and the tractor was ordered to be given on supardari to Fazal Hussain on 3.8-1974. Notwithstanding the said order the S. H.

0. Refused to hand over the tractor to Fazal Hussain. In view of this conduct of the S. H.

0. Rohilwali, Tehsil Alipur, District Muzaffargarh, the petitioner filed an application for contempt against him before the civil Court in which notice has been issued. He applied to the learned Magistrate for implementation of the order passed by him on 3-8-1974. Consequently an order was passed by the learned Magistrate directing the S. H.

0. To implement the said order. Copy of this order was duly delivered to the S. H. O. Concerned and receipt obtained from him on 3-8-1974. On 15-8-1974, the S. H.

0. Again applied to the learned Magistrate stating that the petitioner before me (Fazal Hussain) had been found to be an accused person in the investigation that he was carrying on in connection with the F. I. R. Filed in the theft case, and therefore, the order of supardari passed in his favour should be cancelled, The learned Magistrate on that very day passed the impugned order dated 15-8-1974, cancelling the supardari and handed over the custody of the tractor to the concerned S. H.

0. This Revision Petition by Fazal Hussain is directed against the last mentioned order dated 15-8- 1974.

2. Muhammad Din has filed Criminal Revision No, 584/74 in which order dated 3-8-1974 (handing over the custody of the tractor to Pazal Hussain) as well as the order dated 15-8-1974 (banding over its custody to the police) are challenged and it is prayed that the earliest order passed by the learned Magistrate on 14-6-1974 should be restored.

3. After hearing the learned counsel for the parties it is quite clean that the order dated 15-8-1974 is against law and cannot be sustained. It is established law that normally in cases for entrustment of interim custody of property, the property seized should be handed over to the person from A whom it is recovered. In this behalf reliance may be placed on Muhammad Farooq v. State (1) and Muhammad Jamal v. State (2). Consequently there was no warrant for cancelling the order dated 3-8-1974 whereby the custody of the tractor was handed over to Fazal Hussain. Moreover the reason given by the S. H.

0. That the investigation had revealed that Fazal Hussain was an accused person does not appear to be factually correct because at that stage the S. H.

0. Concerned was not investigating into the matter and the investigation had already been transferred to the Crimes Branch, Muzaffargarh. It is also to he noted that there was an order of injunction in favour of the petitioner passed by the civil Court and for that reason too, the tractor could not have been removed from his custody.

4. In so far as the case of Muhammad Din is concerned namely, that the order passed in his favour on 14.6-1974 could not be modified as there is no power of review given under the Criminal Procedure Code and the said order had become final. Suffice it to say that the said order was an ex park order and could not, therefore, be considered as final. In this connection reference may be made to C. M. Safdar v. State (3) and Zafarullah Khan v. State (4).

5. The result of the above discussion is that Criminal Revision No, 578/74 is accepted while Criminal Revision No, 584/74 is rejected. The S. H.

0. Rohilwali, Tehsil Alipur, District Muzaffargarh is directed to handover the custody of the tractor forthwith to Fazal Hussain (petitioner) in accordance with the terms of the order dated 3-8-1974 passed by the learned Magistrate. {{FOOT NOTE}}

(1) 1970 P Cr. L J 1253 (2) 1972 P Cr. L J 363

(3) 1968 P Cr. L J 936 (4) PLD 1971 Kar. 906 {{FOOT NOTE}}