1. ' MUHAMMAD AFZAL ZULLAH, J.-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.
2. ' 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 38, 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.
3. Respondents Nos. 1 to 5, submitted their Objection Petitions to that attachment of the property on 13-9-1981, the learned M. I. C., Nowshera, passed the following order on one of the Objection Petitions :- "Telisilder N. S. R. Will inquire and exercise reasonable care not to dispose of the property that belongs to someone excepting the accused However the auction proceedings will not be stayed as the same has not been prayed for on any material ground'
4. "That the auction proceedings were however not stayed and the following day the auction was conducted and the appellant purchased the suit property. The respondents Nos. I to 5, filed Revision Petition Nos. Crl. Revisions Nos. 82 &c 83 of 1981, in the High Court Peshawar. The respondents counsel contended before the High Court that the order of the M. I. C. Referred to above was in violation of the provisions contained in S. 88 (6-C), Cr. P. C. Because the M. I. C.
5. Nowshera, 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 petitioner 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., Nowshshera, 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 District 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."
6. Learned counsel for the appellant has contended that being a successful auction-purchaser he has a vested right in the circumstances of the case, to save the auction for his benefit. Therefore, notwithstanding the remand of the case by the High Court in the earlier revisional proceedings ' he (the petitioner) is a necessary party before the learned Magistrate who was required to hold an inquiry in accordance with law on the objections 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 Advocate-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, therefore he had no locus standi left in the matter and accordingly the rejection 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.
7. ' 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 is 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-purchaser 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."
8. ' The aforequoted 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 2-6-1962. 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 in favour of the appellant 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 ne 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 by 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 fair opportunity to the appellant of being heard.