1. As bath these Revision Applications arise out of the sane dispute, I will dispose them of by this order.
2. Mr. Mustaqeem Ahmed respondent No. 1 in Criminal Revision Application No. 158 of 1971 is the applicant in the other Revision Application and his case is that he is a dealer in Motor Rickshaws in Hyderabad. He further claims that in the course of his business he had engaged Mistry Ameen the applicant in Cr. Revision Application No. 158 of 1971, as his driver for his M. C. R. And that in the events it had happened he had entrusted M. C. R. Bearing No. LED 9018 to Mistry Ameen who wag to pay him Rs. 400 a month Further according to the said Mustaqeem Ahmed, Mistry Ameen had made payment of Rs. 400 for two months and then reduced it by Rs. 100 on the ground that the earnings from the M. C. R. Had fallen. He has therefore accepted this arrangement on 1-12-70, but in spite of the concession thus given by him Mistry Ameen did not pay, him anything for the months January to March, 1971. He, therefore, went to Mistry Ameen to take back the M. C. R. From him, but Mistry Ameen persuaded him to let him keep the Rickshaw and "recover the arrears by legal course".
3. Mustaqeem Ahmed's further contention is that despite the clemency thus shown by him, Mistry Ameen disappeared to Peshawar with the Rickshaw. He, therefore, filed a direct complaint against Mistry Ameen in the Court of the Ist A. C. M., Hyderabad on 7th April 1971. The learned A. C. M.
4. Recorded Mustaqeem Ahmed's statement and ordered a preliminary enquiry under section 202, Cr.
5. P. C. Mustaqeem Ahmed had also filed an under section 98, Cr. P. C. For securing possession on to rickshaw pending the hearing of his criminal complaint. As application was allowed by the learned A. C. M. The M. C. R. Bearing No. LED-9018 was brought back to Hyderabad from Peshawar in pursuance of a search warrant issued by the Court and the custody of the Rickshaw was given to said Mustaqeem Ahmed pending the hearing of his complaint. The case was then fixed for 30th April 1971 and it is admitted that on this date Mustaqeem Ahmed had to bring his witnesses.
6. However, perhaps because he had obtained custody of the rickshaw, he did not care to appear in Court at all on 30th April 1971. I may however, point out here that his complaint had, on that day, been transferred to the Court of the 3rd A. C. M. The 3rd A. C. M. Therefore, adjourned the case to 21st May 1971, then to 18th June 1971 and finally to 23rd July 1971 but Musta--qeem Ahmed did not care to be present on any of these 3 dates. Meanwhile Mistry Ameen, from whose possession the rickshaw has been secured, came down from Peshawer to Hyderabad on 21 at July 1971 and filed an application in the Court of 3rd A. C. M. Under section 516 (a), Cr. P. C. For obtaining temporary custody of the Rickshaw. The learned A. C. M. Fixed this application for hearing on 23rd July 1971, the day to which, it will be remembered, the main case had already been adjourned. However, as I have pointed out, Mustaqeem Ahmed was not present on 23-7-71 and therefore his complaint was dismissed under section 203, Cr. P. C. Then, according to Mr. Mohd. Ali Shaikh, Mistry Ameen was directed to file another application for the return of the Richahaw to him. This application was filed and allowed on the next day. The result was that Mistry Ameen was entitled to the possession of his rickshaw in pursuance of this order of the learned A. C. M. Meanwhile Mustaqeem Ahmed's interest in his complaint revived as soon as be learned of its dismissal and he filed a revision application in the Sessions Court, Hyderabad under sections 435 and 438, Cr. P. C. Together with this revision application he filed an application purporting to be under section 435 (1), Cr. P. C. In which his prayer was that the order of the learned A. C. M. Restoring possession of the rickshaw to Mistry Ameen should be stayed. The learned Sessions Judge ordered notice on this application and directed the police to detain the rickshaw until further orders. The result of this order, which was passed on 29-7-1971, was that Mistry Amen was prevented from recovering custody of the rickshaw, and aggrieved by it, he filed a revision application in this Court which is Cr. R. A. 158 of 71.
7. This Cr. Rev. Application was admitted by a learned Single Judge of this Court on 3-9-71 and together with it Mistry Ameen had filed an application for custody of the rickshaw pending the hearing of his application. This application was heard and allowed by a learned Single Judge of this Court on 27-9-71, so that once again, Mistry Ameen became entitled to the temporary custody of the rickshaw, but before be could get its possession Mustaqeem Ahmed filed another application in the Sessions Court under section 520, Cr. P. C. This application was dismissed by the learned Session Judge on 2-9-1971 on the short ground that it was barred by his earlier order and aggrieved by this order of 2-9-71, Mustaqeem Ahmed filed Cr. R. No. 192 of 71 in this Court against it.
8. Together with the application Mustaqeem Ahmed also filed an application for the temporary custody of the rickshaw and by an order dated 5-10-71, a learned Single Judge of this Court disposed of this application by an order that the rickshaw should remain in police custody.
9. Naturally the effect of the order was to nullify the order of the learned Single Judge passed oh 27- 9-1971, therefore by an order dated 17-4-72, early hearing of Cr. R. No. 158 of 71 was ordered and it was further directed that both the revision applications should be heard together. These applications have now come up for hearing before me in pursuance of this order dated 17-4-72.
10. I would first consider Criminal Revision Application No. 158 of 71 and as I have indicated earlier the only point in this Revision Application is whether the learned Sessions Judge was competent under section 435 (1), Cr. P. C. To pass orders with regard to the temporary custody of the rickshaw 'in dispute. The view taken by the learned Single Judge is contrary to the plain language of the section and it was conceded before me that the learned Single Judges of this Court have taken this view.
11. Accordingly, I set aside the order of the learned Sessions Judge dated 29-7-71 and allow Cr. R. No. 158 of 1971.
12. As Cr. R. No. 158 of 1971 is allowed, Mr. Mohd. Ali Sheikh naturally submitted that the other criminal revision had to be dismissed because in the events that had happened Mistry Ameen was entitled to the temporary custody of the rickshaw. On the other hand, Mr. Manzoor Hussain advanced a lengthy submission that Mistry Ameen had obtained possession of the rickshaw fraudulently and therefore equity and justice required that he should not have temporary custody of the rickshaw.
13. Mr. Mohd. Ali Sheikh repudiated as false Mustaqeem Ahmed's claim and further submitted that the Criminal complaint filed by him was an abuse of the law because the dispute between the parties was really of a civil nature. Finally, on the question of temporary custody, Mr. Mohd. Ali Sheikh referred me to a judgment of this Court reported in Zardullah Khan v. State (PLD 1971 Kar. 906).
14. I would not like to go into the arguments advanced by Mr A Manzoor Hussain because they relate to the merits of the case and I would not therefore, make any observations which would pre judge the case of the parties. On the other hand, the question before me is only of the custody of the rickshaw pending the hearing of Mustaqeem Ahmed's complaint. I, therefore, observed that as Zardullah Khan's case supported Mr. Mohd. Ali Shaikh's arguments and in view of this Court's power under section 561 (a), Cr. P. C. The proper course would be to allow Mistry Ameen to retain possession of the rickshaw on terms. Mr. Manzoor Hussain agreed with my observations but requested that the security to be furnished by Mistry Ameen should be in Hyderabad and not in Peshawer. This request was reasonable and accordingly I order as follows: The order of the learned Sessions Judge dated 29-7-71 is set aside and the police is directed to hand-over the possession of the rickshaw to Mistry Ameen. Mistry Ameen shall have temporary custody of the rickshaw, pending the hearing of the case or cases against him, but as a condition of obtaining custody of the rickshaw, he shall furnish security to the satisfaction of, the Court of 3rd A. C. M., Hyderabad in the sum of Rs. 5,000 plus Rs. 200 per month for the period during which he has custody of the rickshaw in pursuance of this order. Subject to these conditions Criminal Revision No. 158 of 1971 is allowed and Cr. Revision No. 192 of 1971 is dismissed.