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Criminal Petition for Special Leave to Appeal No K‑31 of 1977, decided on 18th January 1978

(Court appealed from Sind High Court judgment dated 5‑10‑77 in Cr. Revision No. 100/76).

--S--516‑A‑‑‑Custody of crime property‑Property though to be restored to party from whom taken yet such rule of law could be departed from under special circumstances‑Respondent No. 1 having a lien on property (chassis) on account of work done on them by him, and petitioner having entered into a one‑sided compromise with respon dent No. 2 leaving respondent No. 1 in lurch, High Court, held perfectly justified in safeguarding interest of respondent No. 1 and directing guarantee of an amount, furnished to Court, to be cashed and handed over to respondent No. 1 on furnishing a bank guarantee and in further directing such amount to be adjusted by respondent No. 1 after decision of suit pending in civil Court with regard to such property.‑[Custody of property].

S. Iqbal Ahmed, Advocate Supreme Court and Ali Akbar, Advocate‑on Record for Petitioner.

Nemo for Respondent

Date of hearing: 18th January, 1978.

.‑‑This petition is directed against the order of the Sind High Court in Criminal Revision Application No. 100/76 dated 5‑10‑77. By this Order, the High Court directed that since the buses were actually recovered from the possession of respondent M. Anwar who had a lien on them for the work done, he is permitted to withdraw the amount of Rs. 65,000 (rupees sixty‑five thousand only) claimed by hire as dues against these buses, on condition that he furnishes a bank guarantee for that amount, so that in case the civil Court decides the claim against him, the amount so paid to him, could be recovered from him, and handed over to the party entitled thereto.

Briefly the facts leading to the present petition are that in March, 1973 the petitioner received an order to supply certain number of bus coaches to Pakistan Air Force. In order to expedite the work, the petitioner entrusted nine Leyland Bus chassis to the respondent No. 2 (a private contractor) on 11‑5‑74 for fabrication of bus bodies thereon, and also advanced him in all, the sum of Rs. 1,55,000 (rupees one lac and fifty‑five thousand only). It is alleged that out of the said nine buses, respondent No. 2 misappropriated five bus chassis. He neither fabricated the bus bodies thereon nor returned the chassis to the petitioner. It is further alleged that it was subsequently ascertained through the letters of respondent No. 1 that the said five bus chassis were lying in his premises at 290, Alfred Street, Garden Road, Karachi to whom the respondent No. 2 contractor had secretly, illegally and unauthorisedly handed over the same. On 28‑1‑76 the petitioner filed a criminal complaint bearing Case No. 20 of 1976 under section 403, P. P. C. against respondent No. 2 only in the Court of IV A. C. M. Karachi. On the application of the petitioner, the learned Magistrate issued a search warrant under section 96, Cr. P. C. for the search and seizure of the said five Leyland bus chassis. On 30‑1‑76 the S. I. T. E. Police, Karachi seized the five chassis from the Plot No. 291, Alfred Street, Garden West Karachi, and the said bus chassis were handed over in superdari to the petitioner on 9‑2‑76 by an order under section 516‑A, Cr. P. C. On 16‑3‑76 respondent No. 1 who was not a party before the Criminal Court claimed custody of the five chassis on the ground that if they remained with the petitioner, he shall not be, able to recover his charges/dues inter se from respondent No. 2. It appears that on 30‑4‑76 the Criminal complaint was compromised between the petitioner and respondent No. 2. In the compromise the case property i.e. five bus chassis, which were already given to the petitioner under supardnama were returned to them. The application of respondent No. 1 was rejected on 16‑3‑76.

Respondent No. 1 challenged this order in Criminal Appeal No. 181(76 in the Court of District 8c Sessions Judge, Karachi. The appeal was heard and decided by the VII A. S. J. Karachi. The learned Additional and Sessions Judge, Karachi, set aside the order of the trial Court and directed that the five chassis be restored to respondent No. 1 from whose custody these were recovered. It was in these circumstances that Criminal Revision Application No. 100 of 1976 was filed in the High Court. It would appear that during the pendency of the revision petition, the petitioner was allowed to have the five bus chassis on furnishing bank guarantee in the Court, to the extent of Rs. 65,000 (rupees sixty‑five thousand only) being the alleged claim of respondent No. 1 against respondent No. 2, The petitioner furnished the bank guarantee of the said amount before the Nazir of the High Court. Thereafter, the petitioner disposed of the said chassis after obtaining the permission of the High Court on 7‑12‑76. The High Court being faced with the situation that the property in dispute should have been restored to respondent No.1 and that as the property has already been disposed of, came to the conclusion that the best way to solve the problem would be to allow Respondent No. 1 to encash the bank guarantee of Rs. 65,000 (rupees sixty‑five thousand only and take it from the Nazir after giving a bank guarantee. The petitioner seeks permission to file an appeal against the said order.

After hearing the learned Counsel for the petitioner we are satisfied that the order of High Court is reasonable and just. It cannot be doubted that respondent No. 1 had a lien on the five chassis on account of the work done by him on them. In law, he was entitled to claim lien for his dues. In the present case the petitioner entered into a one‑sided compromise with respondent No. 2. He left respondent No. 1 in the lurch. In our opinion, the High Court was perfectly justified in safeguarding the interest of respondent No. 1 and directing that the guarantee of Rs. 65,000 be cashed and the same 14 may be handed over to respondent No. 1 on furnishing a bane; guarantee. It further directed that the five chassis be handed over to the petitioner for disposal. It is correct that in law, the property should be restored to the party from whom it is taken, but under special circumstances, this rule can be departed from. The direction of the High Court that the amount be adjusted by Respondent No 1 after the decision of suit No. 275 of 1977 pending in the Court of Civil Judge, Karachi also appears to be a proper order. In our opinion, this is not a fit case for interference. The petition is dismissed.

Petition dismissed:

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