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Writ Petition No. 3706 of 1978, decided on 13th May, 1979.

--‑‑S: 516‑A‑‑‑Order under S. 516‑A, Cr. P. C.‑‑Interim in nature‑Trial Magistrate competent to cancel superdari, if supardar fails to produce case property in Court‑Argument that orders of trial Magistrate having been confirmed by Additional Sessions Judge, it attained finality and could not be varied even if supardar failed to comply with orders of superdari, held, fallacious.

[Custody of property].

---‑S. 516‑A read with Constitution of Pakistan (1973), Art. 199‑3 Custody of property‑Interference by High Court. in writ juris diction, scope of.‑[Custody of property].

No doubt High Court would not ordinarily interfere with discre tionery orders passed by lower Courts in matters of superdari/temporary custody. But High Court has always interfered where the lower Courts passed such orders without considering all relevant circumstances of the case or passed an order in a capricious or arbitrary manner because the discretionary power is to be exercised according to sound judicial principles and not arbitrarily or fancifully, : A High Court would interfere if finding is based on insufficient evidence, misreading ‑of evidence, non‑consideration of material evidence, erroneous assumption of facts, patent errors of law, consideration of inadmissible evidence, excess or abuse of jurisdiction, arbitrary exercise of power and unreason able views on evidence. Ordinarily the trial Court is required to give temporary custody of the property to a person who was last in possession unless there are special circumstances which may warrant a different course. The special circumstances contemplated would include circum stances like the passing of final decree vis‑a‑vis the ownership of the property in dispute by a civil Court.

-‑‑‑ S. 516‑A‑Custody of property‑Petitioner declared as owner of bus in dispute by civil Court of competent jurisdiction and temporary custody order in favour of respondent cancelled by Magistrate in compliance of decree‑‑Additional Sessions Judge, however, setting aside such order‑Held : No valid jurisdiction for withholding bus in dispute from its owner during pendency of criminal proceedings and interference by Additional Sessions Judge arbitrary and capricious‑Order of Magistrate upheld, in pircumstanc9s.‑[Custody of property].

Hameed Khan for Petitioner,

Muhammad Muzafar for Respondent No. 2,

Khalil Ramdey, A.A.‑(3, for the st4to,

Date of hearing ; 7th May, 1979,

Abdur Rashid petitioner and his son named Amjad Rashid sold their bus bearing Registration No. RIC 3545 in favour of Raja Afzal and Raja Muhammad Sbafiq respondent No. 2 for a sum of Rs. 90,000 by means of agreement dated 13th of July, 1976. An amount of Rs. 25,000 was paid to the ‑petitioner by the purchasers;. The remaining amount was to be paid" by means of monthly instalments of Rs. 2,500 each. Muhammad Shafiq respondent No. 2 defaulted in compliance of terms of the agreement., On 1st of April, 1977''the petitioner allegedly took away the bus from Kabir, District Sahiwal where it was being plied by respondent No. 2. The petitioner .was intercepted during the way, the vehicle was recovered from his possession and formal case of theft was registered against him at police station Jhang Sadar. The vehicle was entrusted to Muhammad Shafiq respondent No. 2 on superdari by Ilaqa Magistrate whose order was affirmed in revision by learned Additional Sessions Judge. Meanwhile, the petitioner and his son Amjad Rashid filed a suit before learned Civil Judge, Rawalpindi, for a declaration that they were owners of the bus in question and were entitled to retain its custody. The suit was disposed of by means of a consent decree, where under respondent No. 2 was required to clear the remaining amount through monthly instalments. Admittedly, the respondent did not comply with the terms of the decree. On 19th of March, 1978 respondent No. 2 defaulted in producing the vehicle before the Magistrate with the result that the order entrusting the vehicle to the respondent on superdari was cancelled and the vehicle was ordered to be handed over to the petitioner on superdari. The respondent filed revisional application before learned Sessions Judge (respondent No. 1) which was accepted and the order of learned Magistrate was set aside for the reasons that order of superdari in favour of the respondent (2) could not have been cancelled no matter that he had defaulted in producing the vehicle. A notice should have been issued to him to show cause against forfeiture of security. Order of learned Magistrate which was affirmed in revision by learned Addi tional Sessions Judge has assumed finality and could not be reviewed. The petitioner could have recourse to Civil Court for necessary , remedy if the respondent had defaulted in payment of instalments as provided in the decree,

2. It may be mentioned here that the consent decree of civil Court referred to above was passed on 19th July, 1977. It was specifically provided in the decree that Muhammad Shafique respondent No. 2, would pay the amount In instalments to the petitioner/plaintiff before the 4th of each month and that if the respondent defaulted in the payment of two consecutive instalments, entire amount would become due forth with and the petitioner/plaintiff would be entitled to decree for the entire amount and the instalments already paid would stand forfeited to the plaintiff. The respondent was directed to deposit the said monthly instal ments in the plaintiff's Account No. 7791 Habib Bank, Raja Bazar, Rawalpindi. Admittedly the respondent defaulted in the payment of these instalments. The plaintiff/petitioner .moved the civil court once again in the matter. The civil Court passed a final decree on 18th April, 1978. Thereafter the petitioner/plaintiff applied for the execution of the decree. The Civil Judge vide his order dated 17th April, 1978 (Aunexure E), observed that the decree had automatically come into operation due to violation of the' judgment‑debtor and directed the petitioner to submit his application to the Illaqa Magistrate who would proceed with the matter in accordance with the terms of the decree.

3. The main contention of the learned counsel for the petitioner is that the order of learned Sessions .Judge whereby. he had directed that the superdari of the bus in question may be given to Muhammad Shaft, respondent No. 2, was arbitrary and unreasonable.

4. Admittedly it is established on the record that the bus in question/ case property was not produced before the trial court on 19th March, 1978 by the superdar/respondent No. 2 and the order, of temporary custody was accordingly cancelled and S. H. O.‑Saddar Jhang was direc ted to produce the bus in Court; and the bus was given on superdari to the present petitioner in terms of the decree of the civil Court. The Court observed that the party which was owner of the bus was better entitled to look after it than any one else. As noted earlier the present petitioner had become he owner of the bus in terms, of the final decree passed by the civil Court on 18th April, 197 . The said order of Magistrate in respect of superdari/temporary custody was passed on 6th May, 1978. The Superdar/Custodian of the property was bound to produce the bus oil each hearing of the case and in case of default the learned Magistrate was competent to cancel the superdari/temporary custody.

5. The learned Magistrate, however, was required to issue show cause notice to the respondent /superdar in case it was sought to forfeit the bond furnished by him. The learned Sessions Judge was not right in holding that the earlier order of Magistrate whereby be had been given temporary custody of the property to respondent No. 2 had attained finality as it was confirmed by the Additional Sessions Judge in Revision and that the same could not be varied even if the superdar did not comply with the order of the superdari/temporary custody. The learned Magistrate was competent to cancel the order of superdari if the superdar fail ed to produce the case property which had been entrusted to him as an interim measure. By its very nature orders under section 516‑A, Cr. P. C. are of interim nature.

6. Learned counsel for the respondent No. 2 has vehemently argued that this Court would not ordinarily interfere with discretionary orders passed by lower Courts under section 516‑A, Cr. P. C. Learned counsel cited a number of authorities in support of this proposition. No doubt this Court would trot ordinarily interfere with discretionary orders passed by lower Courts in matters of superdari/temporary custody. But this Court has always interfered where the lower Courts passed such orders without considering all relevant circumstances of the case or passed an order in a capricious or arbitrary manner because the discretionary power is to be exercised according to sound judicial principles and not arbitrarily or fancifully High Court would interfere if finding is based on insuffi cient evidence, misreading of evidence, non‑consideration of material evi dence, erroneous assumption of facts, patent errors of law, consideration a of inadmissible evidence, excess or abuse of jurisdiction, arbitrary exercise' of power and unreasonable views on evidence. Ordinarily the trial Court is required to give temporary custody of the property to a person who was last in possession unless there are special circumstances which may warrant a different course, The special circumstances contemplated would include circumstances like the passing of final decree vie‑a‑vie the ownership of the property in dispute by a civil court. In the instant case, civil court has passed a. final decree in favour of the present petitioner declaring him as the owner of the bus in dispute. Learned counsel for the petitioner has reiterated that no appeal was ever filed by respondent No. 2 against the aforesaid decree of the civil Court dated 18th April, 1978. In fact no such appeal would be permissible in law against this consent decree.

7. Learned counsel for the respondent has not controverted this factual and legal position.

8. In the circumstances there was no valid justification for withhold ing the bus in dispute from its owner during the pendency of criminal proceedings. Reliance in this regard is placed upon Nizam‑ud‑Din v. State' (1972' Cr. L J 678) and Ghulam Jilani v. Muhammad Yusaf (1972 S C M R199).

9. The petitioner in this case had become the owner of the bus by virtue of the decree of the civil Court mentioned above. The hire‑purchase agreement which is the basis pf the title of respondent No. 2,N9.longer holds the field. The said respondent having failed to comply with the terms of the hire‑purchase agreement and by virtue of the decree of the civil court against him has no right whatever to lay claim to the custody of the bus in question. There is, to my view, no valid justification in the circumstances of this case to withhold possession of the bus from its owner during pendency of criminal proceedings. The impugned order of the learned Sessions Judge is arbitrary and capricious as it seeks to deprive an owner of his property and instead seeks to give its temporary custody to a person who had admittedly defaulted. in the production of the bus in Court on an earlier occasion and who by virtue of the final decree of the civil Court had no valid title to the ownership of the bus. The impugned order dated 12th July, 1978 passed by the learned Sessions Judge. Jhang, is declared to be illegal and without lawful authority. The bus to dispute would be given on superdari/temporary custody to the peti tioner in terms of the order of the Magistrate dated 6th May, 1978.

10. This Writ Petition is accepted. There would be no order as to costs.

Petition allowed,

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