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Criminal Petition for Special Leave to Appeal No. K‑18 of 1970, decided on 11th May 1970.
(On appeal from the judgment and order of the High Court of West Pakistan, Karachi Bench, dated the 30th March 1970, in Suo Moto Revision No. 175 of 1969).
----S. 516‑A‑Custody of property‑Property subject‑matter of a charge of cheating‑Held, should not have been recovered from person in its possession unless a strong case of cheating made out against him‑Penal Code (XLY of 1860), Ss. 420 & 406.
Muhammad Farooq Chaudhry, Advocate' Supreme Court instructed by K. A. Ghani, Advocate‑on‑Record for Petitioner.
Nemo for Respondents.
Date of hearing : l1th May 1970.
‑This petition for special leave to appeal is directed against the order of a learned Single Judge of the High Court of West Pakistan, Karachi Bench, in Criminal Suo Moto Revision No. 175 of 1969, dated the 30th March 1970. By this order, the High Court accepted the revision petition and directed that truck No. RI‑452 be taken back from the custody of the petitioner and handed over to respondent No. 2 on the same condition on which it was ordered to be given to the petitioner. It has arisen in the following circumstances :‑--
The complainant, who was the proprietor of the Carvan Goods Transport Company, Hyderabad sold his truck No. RI‑452 on the 13th September 1966, for Rs. 37,000 with. the consent of Khalilur Rahman and Ishaq, the original owners. Respondent No. 2 in satisfaction of the price gave his truck valued at Rs. 9,000 and promised to pay the balance of Rs. 18,000 to the original owners and remaining amount of Rs. 10,000 in instalments of Rs. 1,500 per month. It appears that the petitioner has made the payment to the original owners but the amount of Rs. 10,000 which was payable to the petitioner is still remained unpaid. The allegation of the petitioner is that respondent No. 2 had fraudulently and dishonestly induced the complainant to part with the truck and has committed an offence under section 420/406, P. P. C. A complaint was filed before the learned S. D. M., Hyderabad, under section 516‑A, Cr. P. C. on the 7th June 1969. The learned Magistrate on that application directed the S. H. O., Market Police Station to seize the said truck from respondent No. 2 and to keep it in custody at the Market Police Station. This order was complied with on the 1st July 1969, and the truck was seized from the possession of respondent No. 2. This order was challenged by respondent No. 2 in Revision No. 250 of 1969 in the High Court of West Pakistan, Karachi Bench, for quashment of proceedings of the complaint and order of seizure passed under section 516‑A, Cr. P. C. This application was dismissed by the High Court on the ground that it was premature as no final order with regard to the disposal of the seized property had been passed by the trial Court.
Thereafter the learned trial Court, by order dated the 1st October 1969, directed that the possession of the truck be handed over to the petitioner on executing a bond against a solvent surety to the extent of Rs. 30,000. Respondent No. 2 challenged this order in another application under section 561‑A, Cr. P. C. known as Criminal Suo Moto Revision No. 175 of 1969 claiming that truck No. RI‑452 be given to him on the same terms and condition. The matter came up for hearing before the learned Single Judge on the 30th March 1969, who set aside the order of the learned trial Court dated the 1st October 1969, and directed that truck No. RI‑452 be taken back from the custody of the petitioner and handed over to respondent No. 2. This order is being challenged in this petition for special leave to appeal.
In support of the petition, Mr. Muhammad Farooq Chaudhry, learned counsel for the petitioner, has contended that the High Court has exercised its discretion on arbitrary and capricious grounds and the impugned order is liable to be set aside for that reason. We have gone through the reasoning of the learned Single Judge and have come to the conclusion that he has exercised the discretion vested in him properly and no exception can be taken to it. It is in evidence that the transaction between the parties about the truck in dispute was on the basis of a written agreement dated the 13th September 1966. . Respondent No. 2 under this agreement has parted with the truck and has also paid the original owners, namely, Khalilur Rahman and Ishaq and has relied on an agreement dated the 12th August 1968, between him and them. The dispute in the present case is about the balance of Rs. 10,000. Till such time as the trial Court comes to this conclusion that respondent No. 2 has fraudulently and dishonestly obtained possession of the disputed truck it is not possible to say that the order passed by the learned Single Judge of the High Court is not just and proper. It will be noticed that respondent No. 2 has been directed to furnish security in the sum of Rs. 30,000 though only a sum of Rs. 10,000 remains payable The truck was in possession of respondent No. 2 and unless a strong case of cheating is made out against him, it should not have been recovered from his possession. We, therefore, see no ground to interfere in this matter. The petition is dismissed.
Leave refused.
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