The facts giving rise to this Criminal Revision briefly are that about 30 years ago one Niaz Muhammad Khan, a landlord of village Kot Miran of Tehsil Hafizabad, District Gujranwala, allegedly absconded after having murdered his step-brother Muhammad Amin Khan and, consequently, proceedings under sections 87 and 88, Cr. P. C. Were taken against him. In pursuance of these proceedings, the share of Niaz Muhammad Khan absconder in the agricultural land was attached by an order of the Magistrate First Class, Gujranwala, dated 1-10-1941. Three objection petitions were preferred against this order, one by the present petitioner Mst. Anwar Sultan Begum wife of Niaz Muhammad Khan aforesaid, the other by his minor son Muhammad Javed Khan and the third by Sardar Khan, his brother. The position taken up by the present petitioner as also by her minor son before the learned Magistrate was that they were both entitled to maintenance out of the estate of the abscon--der, Niaz Muhammad. Khan. It was also contended on behalf of the minor that the property being ancestral in nature, the minor had an inherent interest in it even during the life-time of his f4ther, which could not be taken away- in pursuance of proceedings under sections 87 and 88, Cr. P. C.
2. The ancestral character of the land having been established before the learned Magistrate; he held Mst. Anwar Sultan Begum petitioner No. 1 as entitled to an allowance of Rs. 70 p. m. And her minor son Muhammad Javed Khan petitioner No. 2 to that of Rs. 10 p. m. And, as such, a monthly sum of Rs. 80 in all was declared to be the charge on the estate of the absconder. The claim of Sardar Khan brother of Niaz Khan, was, however, rejected. This order was passed by the learned Magistrate on 11-8-1942 and it appears that for 27 long years no further pro--ceedings were taken in this regard, and the case, presumably, remained consigned to the record-room. It was not till 29th February 1968, that the case was raked up again by the Tehsildar Hafizabad when he initiated further proceedings for the disposal of the attached property of Niaz Muhammad Khan absconder by means of a public auction. Sikandar Hayat Khan respondent No. 2 son of Muhammad Amin Khan who was allegedly murdered by Niaz Muhammad absconder being the highest bidder was allowed to deposit 1/4th of the total price as required under the rules and the auction proceedings were forwarded by the Tehsildar to the S. D. M. Hafizabad for confirmation. These were confirmed by the S. D. M. Vide the impugned order, dated 17-1-1969. Feeling aggrieved, the petitioners filed the present Criminal Revision.
3. It has been contended on behalf of the petitioners before me on the basis of Sundar v. Saliq Ram and others ((1911) 34 P L R 174) that once the ancestral character of an agricultural piece of land is estab--lished, the interest of the sons of the land-owner should be deemed to have come into existence right from their very birth and, as such, the owner could not be deemed to have an unlimited interest therein, which was subject to the rights of his customary heirs, and, therefore, auction proceedings in regard to the land in question, which was admittedly ancestral in nature, resulting in its final disposal without having safeguarded the rights of petitioner No. 2, were illegal and without lawful authority. Again, on the basis of Shah Muhammad and others v. Emperor (AIR 1925 Lah. 629), it is contended that in the course of proceedings under sections 87 and 88 of the Cr.
P. C., only the limited interest of the absconder in the ances--tral piece of land could be attached.
In this short judgment, the learned Judge placing reliance on two authorities i.e. Sadu Singh v.
Secretary of State for India and others (18 P R 1908) and Niamal Ali and others v. Secretary of State for India and others (52 P R 1915)observed :- "All that can be attached in proceeding under sections 87 and 88 of Cr. P. C. Is the interest of the absconder and that on his death the land must be released in favour of his heirs."
In that view of the matter, the learned Judge directed that the lands of the absconder should be released in favour of the heirs from the date of his death. In the next authority Mehr Khan and another v. Sakhi and others (AIR 1932 Lab. 45) an ancestral piece of agricultural land was forfeited bye Government and sold in public auction. The reversioner brought a suit for possession against the purchaser and the matter went up to the High Couft in second appeal. It was held by the learned Judge that the deceased had only a life --interest in the ancestral property and that the Government could sell nothing more than that. It was further observed that on his death the reversioners were entitled to succeed. In this authority reliance was also placed on 18 P R 1908, and 52 P R 1915 referred to earlier.
4. On the contrary, learned counsel for respondent No. 2 relies on Abdullah v. Jitu (22 All. 216), Mian Jan v. Abdul (27 All. 572) and Sadhu Singh v. Secretar v of State for India ((1908) 3 P W R 77) in support of the conten--tion that after the proceedings under sections 87 and 88 of the Cr. P. C. Had culminated in a sale, the revisional jurisdiction of this Court could not be invoked. Taking the last authority first, namely, (1908) 3 P W R 77, which is a Full Bench ruling, it may be observed that it does, not support the case of the respondent. In that case their Lordships while deciding a Civil Appeal were called upon to determine as to whether the sale of ancestral property of a person subject to Punjab Customary Law attached and sold by an order of the criminal Court under sections 87 and 88 of the Cr. P C. Disposed of the life-interest of the owner only or also the right of inheritence of the male lineal descendants of the holder. The view taken by the majority was that such a sale disposed of only the life-interest of the owner and not the right of inheritence of his legal heirs which could not be forfeited. As regards Mian Jan v. Abdul p it was ruled by their lordships of the Division Bench that in a case where the property of an absconding offender was attached and sold by a Court purporting to act under section 88 of the Cr. P. C. By means of irregular and illegal procedure; the civil Courts had the jurisdiction to entertain a suit by the owner of the property. It may be observed that in this case the suit had been thrown out by the trial judge for want of jurisdiction which find--ing was reversed in appeal by the High Court. Obviously, the authority is not directly in point as it relates only to the compe--tency of a civil suit in a case like this. The next authority, namely, Abdullah v. Jitu appears to be somewhat in point. In this case the learned Single Judge, though presumably convinced of certain irregularities in the nature of non- observance of formalities for the publication of proclamation was not prevailed upon to set aside the sale in exercise of revisional jurisdiction on the ground that it affected the title of the auction- purchaser. The parties were accordingly directed to seek their remedy elsewhere. But as stated earlier in Shah Muhammad and others v. Emperor the learned Judge placing reliance, inter alia, on 19 P W R 1908, the authority relied upon by both sides, invoked his revisional jurisdiction and directed the release of the absconder's property in favour of his heirs from the date of his death. It may, how--ever, be mentioned that no sale had yet taken place in this case and the matter had rested only at the stage of attachment. As such, it could perhaps be argued on behalf of respondent No. 2 that in view of this distinction Shah Muhammad and others v. Emperor did not advance the case of the petitioner. In answer to this contention, learned counsel for the petitioner has referred me to Santa Singh v. Emperor (AIR 1924 Lab. 617) wherein on the basis of Ilm Din v.
King-Emperor (8 Cr. L J 260) it was held that an order under sec--tion 88 of the Cr. P. C. Was constituted proceedings within the meaning of section 435; and, as such, was subject to the revisional jurisdiction of the High Court. It would be pertinent to observe in this context that section 88 of the Cr. P. C. Is not confined only to the attachment of the property of an absconder, but also e includes the consequential sale of the same as envisaged in sub--section (7) ibid. In view of the above authority, therefore, I am in no manner of doubt that the impugned order could be legitimately challenged in this Court by invoking its revisional jurisdiction.
5. As a result of the above discussion, I allow the petition and set aside the impugned order as illegal.