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Criminal Revision Application No. 547 of 1965, decided on 1 at November 1966.

S. 516-A-Custody and disposal of property pending trial-Ingredients of S. 516-A Complaint under S. 448, P. P. C. stating that accused committed trespass and locked certain shops-Police arresting accused and securing keys of shops-Pending trial of complaint before Magistrate, Civil Court deciding question of title in respect of disputed shops in favour of complainant--Keys of shops cannot in circumstances, be said not to have been used for committing trespass---Such keys, held, "property" and that trial Court had powers under S. 561-A, Cr. P. C. to dispose of same.

N. H. Jafri for Appellant.

Nooruddin Sarki for the State.

Rehanul Hassan Farooqi for Respondent No. 2.

Date of hearing: 20th October 1966.

This is an application in revision under section 439. Cr. I', C. and is directed against the order dated 28-1(h-65, I'. P. C. by the City and Additional District Magistrate Karachi in Criminal Revision Application lea. 10/65 (filed by the present applicant against the order dated 9-6-65 passed by the 10th Additional City Magistrate, Karachi).

2. It is common ground that the applicant Abdul Nazir Ghulam Muhammad is the attorney of one Ghulam Abbas alias Abbas Bhai who bad entered into partnership business with respondent No. 2 (Dawood Bhai) in January 19611. His case is that Ghulam Abbas was running sanitary and plumbering business at shops Nos. l0, 11 and 12, Hardas Street behind Idgah from 1952. After he entered into the above stated partner ship he fell ill and left for India appointing the present applicant as his attorney. Some dispute arose between the applicant and respondent No. 2 in connection with this partnership business and it gave: rise to litigation between them. The first suit was Fled by the present applicant (No 425/63) in the civil Court at Karachi for rendition of accounts and this suit is said to be still, pending in that Court. The learned Civil Judge granted interim injection, and ultimately the possession of these three shops was, given to the applicant through one Syed Abid Ali Shirazi. Appellant contends that he is in peaceful possession of these shops thereafter. However the dispute between the parties continued with the result that another Suit (No. 140/65) was filed by the present applicant in May 1965 '-Of injunction restraining the respondent No. 2 from dispossessing or ejecting the applicant from these three shops. On 6-5-65 ad interim injunction was granted. This matter was hotly contested by respondent No. 2 and ultimately it was vacated by the Civil Judge by his order dated 31-5-65. After ad interim injunction was granted respondent No. 2 filed report with Idgah Police on 8-5-65 under section 448, P. P. C. alleging that the present applicant had committed trespass and had locked the three shops stated above. The applicant was arrested and during his personal search three keys were recovered from him by the Police under section 51, Cr. P. C. 2days later, viz. 10-5-65 respondent No. 2 approached Mr. Amjad Ali, A. C. M. for the return of his keys to him after his request had been refused by the Police. The learned Magistrate also rejected this request of respondent No. 2 on the same day and his order is Annexure B'. Its perusal shows that the learned Magistrate was of view that the respondent No. 2 should approach the Civil Court for key, etc. This Court is concerned with the offence under section 448, Cr. P. C. only. It appears that respondent No. 2 did not approach the Civil Court as directed by the A. C. M. He had not even disputed this order. On the same day police had approached the same Court in connection with the same keys and their request was also rejected by this Magistrate and this order appears at page 33 of the paper book. After the ad Interim injunction was vacated on 31-5-65 respondent No. 2 approached the same Court on 1-6-65 when it was presided over by another Magistrate (Mr. Ahmad Ullah Farooqi). This application was granted by this Magistrate (vide order at page 37 of the paper book) and the relevant passage in this order reads as follows: --

"I accordingly order, that the order of the Civil Court be carried out and the possession of the shops Nos. 10, 11 and 12 should remain with the complainant Dawood Bhai till the points referred in para. 15 of the said Civil Court order are decided by the competent Civil Court VIII. The keys lying with the Police be returned to the complainant forth with. The case under section 448 (referred to above) will be decided on its on merits."

The applicant was not satisfied with this order and accordingly he took the matter in revision before the City and A. D. M. who rejected the same by his order dated 28-10-65 and it is against this order that the present revision application has been filed in this Court.

3. Admitted position is that these keys were secured by police during the investigation of the case registered under section 448, P. P. C. against the present applicant. Chapter XLIII in Cr. P. C. deals with disposal of property. Section 516(A) which was added in 1923 deals with cases in which the orders can be passed with regard to the disposal of property pending trial. In this particular case report filed under section 448, Cr. P. C. is still pending and hence the trial Court had powers to dispels of the property, under the provisions of this section A and not under section 517 or 522 or 523. Section 516 (A). Cr. P. C. lays down that the property regarding which any offence appeared to have been committed (2) which appears to have been used for the commission of any offence and (3) is produced before any criminal Court during any inquiry or trial, the Court may make "such orders as it thinks fit for the proper custody of such property". Regarding the ingredient of this section it was urged before me that the three keys, which were secured by police are not the property with regard to which an offence under section 448, P. P. C. was committed. Nor these are the keys which were used for the commission of such offence and lastly, that keys have not been pre-accused before the Court. I find very little merit in these arguments. In paragraph 5 of this application it has been clearly stated that respondent No. 2 has filed report under section 448 alleging that the applicant had committed trespass and further that he has locked those three shops. Admitted position is that these three keys are in respect of those locks which have been put at the premises. Therefore, it cannot be said that these keys have not been used for committing the offence of trespass. Plea taken by respondent No. 2 before this Civil Court was that it was in Shop No. 10 only that Ghulam Abbas was carrying on his business originally and further that Shops Nov. I 1 and 12 "elusively belonged to him and he carried on his business there. The learned civil Judge in his order Dated 31-5-65 has relied upon the deed of partnership between the parties and it clearly supported the case of the present respondent No. 2. In view of this position he had rejected the application of Ghulam Abbas, and had vacated the interim injunction already granted by him. I also do not agree with the applicant that the keys have not been produced by the Police before the trial Court. Police is holding these keys on behalf of the Court even though its physical possession is still with them. For all these reasons I find very little merit in this application which is accordingly dismissed.

Appeal dismissed.

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