' SALAHUDDIN MIRZA, J.--- Applicant Mst. Nadira Naeem had lodged an F.I.R. No,471 of 1991 under section 420/406, P.P.C. Against Mst. Aisha Begum alleging that Mst. Aisha Begum had agreed to sell her air-conditioner, refrigerator, V.C.R. And tape-recorder for a total of Rs,50,000 and had received the sale price and the delivery of these articles was to be given to the complainant after the Chehlum ceremony of Mst. Aisha's husband but Mst. Aisha Begum avoided to deliver possession of these articles after the Chehlum ceremony of her husband and had therefore, committed an offence under section 420/406, P.P.C. The police commenced investigation in the matter and proceeded to the flat which was shown in the F.1.R. As the residence of Mst. Aisha Begum and secured all these articles. At that time Mst. Aisha Begum was not residing in the said flat and it was in occupation of one Nasir Mehmood Khan. Immediately after these articles were recovered by the police, complainant Mst. Nadira Naeem moved an application before the City and A.D.M., Karachi South praying that the custody of the articles be given to her. Subsequently, one Azizuddin also moved an application making the same prayer. Learned City and A.D.M. Heard the parties and vide order, dated 17-11-1991 dismissed the application of Azizuddin and allowed the application of complainant Mst. Nadira Naeem and ordered that the custody of the articles be delivered to her.
Feeling aggrieved from this order Azizuddin filed revision application in the Court of Sessions, Karachi South who allowed the same vide impugned order, dated 27-1-1992. He was of the view that the property was recovered from the flat which was in occupation of Nasir Mehmood and, therefore, in the first instance, ought to have been returned to him unless there were special reasons not to deliver the custody to him. Learned Sessions Judge was also influenced by the fact that Mst. Aisha Begum had already filed a suit for cancellation of the alleged receipt of Rs,50,000.
Now complainant Mst. Nadira Begum impugns this order of learned Sessions Judge through this miscellaneous application under section 561-A, Cr.P.C.
2. The only point raised by the learned counsel for the applicant is that Azizuddin has no locus standi to receive the property because he claims to be attorney of Mst. Aisha Begum who is an accused and no accused in a criminal case is entitled to be represented by an attorney and, therefore, criminal revision application filed by Azizuddin before the learned Sessions Judge, Karachi South was not maintainable. He relies on two judgments reported as Hayat Bux v. The State PLD 1981 SC 265 and Chan Shah v. The Crown PLD 1956 FC 43 in both of whom the status of a fugitive from justice is discussed and it is held that a fugitive from law has no right to claim any indulgence from the Court and that Mst. Aisha Begum was a fugitive from law because she was not surrendering herself to the police in connection with the case registered against her.
3. As a matter of fact Mst. Aisha Begum had herself lodged a report with the police on 23-8-1991 alleging that complainant Mst. Nadira Begum had fraudulently obtained her signature on a piece of paper on 9th July, 1991 on the false plea that she could get remitted maintenance charges of the flat from Sea Field Apartment Society on the ground that she was widow and she (Mst. Aisha Begum) signed on the paper on the understanding that it was an application for the remission of the maintenance charges but on 22-8-1991 she (Mst. Nadira Begum) came to her and demanded delivery of household articles and claimed that she had purchased those articles and paid their price and showed her (Mst. Aisha Begum) the alleged receipt given by her which was the same paper on which she had signed under the misconception that it was an application for remission of the maintenance charges of two months. Shortly thereafter, Mst. Aisha Begum is reported to have left for United States where her sons are residing. Under these circumstances it is difficult to say whether Mst. Aisha Begum is a fugitive from law. It may be noted that the entire case of applicant/complainant Mst. Nadira Begum rests upon a receipt allegedly executed by Mst. Aisha Begum which is Annexure "A-2" to this application. It is not attested by any marginal witness.
Evidently, it was signed by Mst. Aisha Begum at a time when no third person was present and complainant Mst. Nadira Begum shall have a hard time proving it by her evidence alone. The dispute appears to be more of a civil nature than of a criminal nature. A better course available to the complainant was to seek specific performance of the contract or, in the alternative, seek return of the sale price with compensatory costs but complainant Mst. Nadira Begum had not done this.
On the other hand, Mst. Aisha Begum has filed a suit for the cancellation of this receipt allegedly executed by her and it is pending 'in a Civil Court. It is doubtful whether criminal proceedings can be maintained when the dispute is pending before a competent Civil Court. Besides, the articles in question were recovered from a flat in whict Mst. Aisha Begum had not been residing. Whosoever may be entitled to obtain their custody, it can be safely stated that complainant Mst. Nadira Begum cannot be one of them. She cannot obtain the relief even before the case has proceeded.
The person entitled to retain the custody of the articles is the person from whose custody these articles were removed by Mst. Aisha Begum. Admittedly, these articles were recovered by the police from the custody of Mr. Nasir Mehmood Khan who has filed his affidavit in the Court of Session and which is Annexure "A-7" on record and in this he deposes that he was inducted into this flat (in what capacity, he had not disclosed) by respondent Azizuddin the registered attorney of Mst. Aisha Begum and that these articles were already lying in the flat when he occupied it and these articles belonged to Mst. Aisha Begum and their de jure custody was with respondent Azizuddin. In view of this position the articles were rightly ordered to be handed over to the said Azizuddin. I find no merit in this application. Order of the learned Sessions Judge, Karachi South, dated 27-1-1992 is in accordance with law and need not be interfered with. Impugning this order through an application under section 561-A, Cr.P.C. Appears to be misuse of process of the Court. I would, therefore, dismiss this miscellaneous application.