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Criminal Appeal No. 2‑P of 1984, decided on 25th April, 1984.

(On appeal from the judgment of Peshawar High Court dated 10‑12‑1983 in Crl. Misc. No. 450 of 1983).

‑‑ Art. 185(3)‑Criminal Procedure Code (V of 1898), S. 88‑Attachment of property of person absconding Property of absconding accused put to auction and purchased by appellant‑Objection petition made by respondent rejected by trial Court and appellate Court‑High Court, on revision, setting aside orders of Courts below and sending case back to trial Magistrate for disposal of objection petitions in accord ance with law‑Appellant auction‑purchaser's petitions for being im pleaded as party to proceedings in objection petition rejected by trial Court, appellate Court and High Court‑Held, appellant‑auction purchaser had a vital interest to urge before forums conceived that his interest and rights as auction‑purchaser should be kept intact and he be allowed to defend and resist objections to attachment and auction‑Impugned orders set aside and appellant directed to be treated as a necessary party to objection petition proceedings.

Nazirullah Khan, Advocate Supreme Court and S. Safdar Hussain, Advocate‑on‑Record for Appellant.

Abdul Latif Yousufzai, Advocate Supreme Court and M. Qasim Imam, Advocate‑on‑Record for Respondents Nos 1, 3 and 5.

Nemo for Respondents Nos. 2, 4 and 6.

Ibne Ali, Addl. A. G. for the State.

Date of hearing : 25th April, 1984.

This appeal through leave of this Court is directed against order, dated 10‑12‑1983 of the Peshawar High Court ;

whereby a Criminal Miscellaneous Petition filed by the appellant, was dismissed in limine.

The brief facts relevant for disposal of this appeal narrated in the petition for leave to appeal are as follows :‑

"That one Kachkol was declared a proclaimed offender in a case and proceedings under section 88, Cr. P. C. were initiated with regard to his movable and immovable property. That it was on 2‑11‑1980, that his property was attached and subsequently was directed to be put to auction. Respondents Nos. 1 to s submitted their Objection Petitions to that attachment of the property on 13‑9‑1981, the learned M. 1. C., Nowshera, passed the following order on one of the Objection Petitions :‑‑

"Tehsilder N. S. R. will inquire and exercise reasonable care not to dis pose of the property that belongs to someone exception the accused However the auction proceedings will not be stayed as the same has not been prayed for on any material ground" ,

"That the auction proceedings were however not stayed and the follow ing day the auction was conducted and the appellant purchased the suit property. The respondents Nos. 1 to 5, filed Revision Petition Nos. Crl. Revisions Nos. 82 & 83 of 1981, in the High Court Peshawar. The respondents counsel contended before the High Court that the order of the M. 1. C. referred to above was in violation of the provi sions contained in S. 88 (6‑C), Cr. P. C. because the M. I. C. Now shera, had not enquired the objections himself and the order of reference to the Tehsildar, Nowshera, was unwarranted by law. The High Court, Peshawar accepted the Revision Petition on 2‑6‑1984. That vide para. 5. of the High Court Judgment the objection was raised by the State counsel to the effect the objection petition was time‑barred and as much as these were not preferred within 6 months from the date of attachment under subsection (6‑A) of section 88, Cr. P. C. The learned High Court Judge thought it proper that the learned Magistrate, to whom the Objection Petition was presented, to deal with this aspect of the matter also. As such the High Court, by accepting the Revision Petition set aside the impugned order and sent back the case to the Magistrate, for disposal of the Objection Petitions in accordance with law. After the case was remanded back to the Magistrate Nowshera to deal with the objection petitions of the respondents Nos. 2 to 5, according to law, the peti tioner made an application to the learned M. I. C. Nowshera, that he should be made a party to the proceedings. The learned M. I. C., Nowshera, rejected the application of the petitioner for impleading him as a party vide order dated 15‑12‑1982. The appellant went in Revision to the District Magistrate, Peshawar. The Additional Dis trict Magistrate, Peshawar, rejected the Revision Petition on 27‑3‑1983. The appellant filed an application under section 561‑A, Cr. P. C. in the Peshawar High Court, Peshawar, for quashing the proceedings on the objection petitions and also for quashment of the orders of the learned Additional District Magistrate, and the learned trial Magistrate, dated 27‑3‑1983 and 15‑12‑1982, respectively or in the alternative for directing the trial Court to implead the appellant in order to enable him to defend his vested right in the suit property. This came up for hearing before the Mr. Justice Allah Bakhsh Khan and was dismissed in limine on 10‑12‑1983. Hence this appeal."

Learned counsel for the appellant has contended that being a success ful auction‑purchaser he has a vested right in the circumstances of the case, to save the auction for his benefit. therefore, notwithstanding the re mand of the case by the High Court in the earlier revisional proceeding he (the petitioner) is a necessary party before the learned Magistrate who was required to hold an inquiry in accordance with law on the object raised by the respondents and also to determine the question of limitation regarding those objections. If, according to the learned counsel, the learned Magistrate was to reject the objection petitions, the petitioner would have succeeded in protecting his interest and right claimed to have been created in the property which was the subject‑matter of attachment and auction. Learned counsel for the respondents as also the learned Additional Ad vocate‑General vehemently contended that by order, dated 2‑6‑1982 the learned Judge of the High Court when accepting the respondents' revision petition and remanding the case to the learned Magistrate had also set aside the auction proceedings earlier conducted in favour of the appellant, there fore he had no locus standi left in the matter and accordingly the rejec tion of his application to be impleaded as a party, by the learned Magistrate and its affirmation by the District Magistrate and the High Court was fully justified.

The High Court has nowhere held in the impugned order dated .10‑12‑1983 that the auction proceedings relating to the property in dispute conducted earlier had all been set aside by the same Court in its earlier order dated 2‑6‑1982.

In fact the appellant it seems from the copy of the order, dated 2‑6‑1982 placed on the record of this case, was not a party before the High Court in the earlier revision proceedings. It might be for this reason that in the impugned judgment no reference has been made to the appellant's interests and/or rights in the property as a result of his being successful in the auction proceedings. The following observations in the impugned judgment are relevant for the present discussion :‑

"The objection petitions are generally made to the attachment of any property on the ground that such property i3 not liable to attachment. A right is deemed to have been vested in the auction‑purchaser from the time when the property is sold and not prior to it. The objection petitions pertain to the attachment of the property which precedes the sale. It can, therefore, be said that an auction‑pur chaser is not a necessary party to the objection petition as he was vested with a right not at the time of the attachment but at the time when the property was purchased by him."

The afore quoted view of the High Court it seems, was expressed regarding the purport of the provisions of the Criminal Procedure Code relating to attachment and auction of property as also the objections thereto. The appellant's grievance was not being dealt with either directly or indirectly. It is also pertinent to note that nowhere in the impugned order there is any reference to the earlier order of the remand passed by the High Court on 2‑6‑1982. Therefore, looked at from whatever angle it would not be correct to say that the order impugned in this appeal, proceeds on an assumption that the auction proceedings concluded to favour of the ap pellant were set aside in their entirety. That being so, the appellant has a vital interest to urge before the forums concerned including the learned Magistrate to whom the case stands remanded that his interest and rights as auction purchaser should be kept intact and while doing so lie would have a right to defend and resist the objections to the attachment and auction raised from the respondents' side. This appeal, therefore, is allowed. The impugned orders are .set aside. The appellant it is directed shall be treated as prayed try him, as a necessary party. If the learned Magistrate has conducted any proceedings in pursuance‑ of the remand order the same shall be held de novo, after affording fait opportunity to the appellant of being heard.

S. Q. Appeal allowed.

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