1971 PLP 232 (SCMR)

SALAHUDDIN AHMED, J.‑This leave petition is from an order of a learned Single Judge of the High Court, Lahore, rejecting a reference under section 438 of the Criminal Procedure Code. The dispute between‑the parties arose out of an agreement dated the 27th of August 1969, whereby the respondents who were producers of a film "Maa Puttar" appointed the petitioner as agent for the exhibition, distribution and exploitation of the said film in certain areas for a period of 3 years. A suit was filed on 2‑7‑1970, by the respondents against the petitioner for rendition of accounts and for an injunction. The injunction was refused by the trial Judge on the 16th July 1970, and the agency was cancelled by the respondents on the 24th July 1970. The suit is still pending decision. On the 24th August 1970, on the com. plaint of the respondent a case under section 406/409 of the Pakistan Penal Code was started against the petitioner. On the 25th August 1970, upon an application of the respondent under sections 94 and 96, Cr. P. C. search warrants were issued on the 31st August 1970 for the search and production of account books and prints of the film "Maa Puttar" in possession of the petitioner and in execution of the warrant seven prints of the aforsaid film were seized on 1‑9‑1.970. On another application by the respon dent, fresh search warrants were issued for the recovery of the remaining 5 prints. It appears that on 5‑9‑1970 the petitioner made an application before the Magistrate concerned for cancella tion of the Search Warrants issued against him upon his undertaking to produce the documents and prints of the said film in question, and prayed for the delivery to him on Supurdari of the aforesaid seven prints seized from him. The Magistrate passed the following order dated 14th September 1970 on this application:‑ "Messrs Khawaja Sultan Ahmad and Malik Javaid present. Arguments heard. In accordance with the undertaking given by the respondent party in this Court on 5‑9‑1970, the latter is required to produce the remaining three prints of film 'Mai Puttar' in this Court on 16‑9‑1970 at 8‑00 a.m." Curiously, however, the petitioner felt aggrieved by this order and approached the learned Additional Sessions Judge in revision who made a reference to the High Court under section 438, Cr.P.C. and recommended that not only the impugned order dated 14‑9‑1970 be set aside but also all the orders passed by the Magistrate for the recovery of the prints be quashed. The High Court rightly rejected the reference and observed that the petitioner having already given the undertaking for the production of the prints and books in question, the impugned order was not open to revision. It has been contended on behalf of the petitioner that the orders issuing the search warrants are illegal and that in any event the petitioner never gave the undertaking attributed to him. Upon the facts and circumstances of the case we need only say that the petitioner cannot be permitted to approbate and reprobate in the same breath, We have perused the petitioner's application dated 5‑9‑1970, and we have no doubt that the petitioner has given the undertaking in question in clear and unmistakable terms and that it was this undertaking which prevented the search warrants from being pursued to their natural consequences. In these circumstances, in the interest of public policy, and in all fairness the petitioner cannot be allowed to turn round and resile from his undertaking on the ground that the; search warrants are illegal. There is no substance in this petition and it is, accordingly, dismissed. Leave refused.