' The petitioner, Haji Muhammad Abbas, through the instant petition, under section 561-A, Cr.P.C., has challenged the correctness, legality and validity of the order of Assistant Commissioner/S.D.M.
Kulachi passed on 13-10-1998 whereby the learned S.D.M. While entertaining the objection of respondent No,1 withdrew the attachment order earlier passed by the same Court regarding the immovable property being the subject-matter of attachment.
2. The synoptical background of the instant case is that Jamshed Khan, the husband of Mst. Naila Tranum Jamshed, respondent No,1, was charged for the murder of the son of the present petitioner vide F.I.R. No,10, dated 30-1-1996 of Police Station Kulachi. The accused Jamshed after the incident disappeared against whom warrant of arrest and proclamation were issued and resultantly he was declared proclaimed offender by the Court of A.C./S.D.M. Kulachi and vide order, dated 18-7- 1998 his agricultural land measuring 153 Kanals, 1 Marla situated in Mauza Gora Gul Muhammad was attached and confiscated in favour of State for which Tehsildar Kulachi was directed to enter and attest mutation by forwarding a copy of the same to the Court of S.D.M., Kulachi. Through the same order it was further ordered that the account of Jamshed with the National Bank of Pakistan Kulachi and National Saving Centre, Kulachi be stopped till further orders and directions were issued to the Managers concerned. The respondent No,1 raised an objection to the aforementioned attachment by putting a claim that the property so attached did not belong to the absconder and in fact it was gifted to respondent No,1 through an unregistered deed.
3. It also appears that respondent No,1 made an application to the learned S.D.M., Kulachi for removing the bar on the account of Jamshed Khan as the said account was not in his sole name but was a joint account alongwith his wife Mst. Naila Tranum. The said request of respondent No,1 was, however, not acceded to on the ground that under section 369, Cr.P.C. The S.D.M. Has no jurisdiction to review his own order. Subsequently, the Manager, National Bank of Pakistan yielded to the pressure of respondent No,1 and after seeking some clarification from the S.D.M. Allowed the respondent No,1 to withdraw the amount deposited in the joint account which was to the tune of nearly one million rupees.
4. An objection was also filed by respondent No,1 regarding the attachment of agricultural property on the ground that the said property belonged to her as the same was gifted to her by her husband Jamshed. The said objection was resisted by the P.S.I. However, the learned S.D.M. After hearing the P.S.I. And the counsel for the respondent released the attached property vide his impugned order.
5. Mr. Dost Muhammad Khan, the learned counsel appearing on behalf of the petitioner, has vehemently contended that the impugned order of releasing the property from attachment is patently illegal and violative of the relevant provisions of law. He was also seriously critical about the withdrawal of the amount by respondent No,1 from the Bank. He argued that respondent No,1 in order to get back the property of an absconder had invented the device of preparing fake gift- deed and succeeded in persuading the S.D.M. On the basis of such deed to release the property belonging to the absconder. He submitted that if such-like devices are allowed to prevail without being checked, then the very object of section 88, Cr.P.C. Would be frustrated and every absconder would very conveniently manage for the preparation of such fake documents and would defeat the purpose of law. His chief contention was that the learned S.D.M. Had failed to appreciate the demand of subsection 6(A) of section 88, Cr.P.C. Which mandatorily demands that for the purpose of determining the truth and correctness of the claim of the objector, the matter shall be inquired into, while in this case no such inquiry was conducted by the learned S.D.M. Regarding the genuineness of the document produced by respondent No,1 in the form of a gift-deed and, as such, the impugned order is patently violative of the said provisions of law. His further contention was that respondent No,1 devided her claim in tow Portions. Initially she preferred a claim regarding the amount deposited in the bank and took the stance that it was a joint account and she had a substantial share in the account and the entire amount does not belong to Jamshed Khan. In this application to the learned S.D.M. The respondent No,1 did not speak a single word about the gift in her favour notwithstanding the fact that the order of attachment of land as well as of the seizing of the account was one and the same. The learned counsel while advancing his arguments on this point contended that the putting forward of claim regarding gift after a month and more than 10 days eloquently speaks that by that time respondent No,1 was not possessive of any gift-deed and subsequently she with the connivance of the absconding accused managed to prepare a gift- deed. As such, according to the learned counsel, the gift-deed was not genuine, but forged and a manufactured device.
6. On the contrary, Haji Sadullah Khan Mian Khel, learned counsel for respondent No,1 and S. Zafar Abbas Zaidi, learned counsel for respondents Nos.2 and 3, opposed this application and have defended the impugned order. They submitted that the instant application is incompetent as the impugned order could be challenged by way of revision and that remedy has not been exhausted by the petitioner. They also questioned the locus standi of the petitioner and submitted that the petitioner has no right to file this application notwithstanding the fact that he is the father of the deceased for whose death Jamshed the husband of respondent No,1 is charged. They contended that the matter of attachment is a problem between the State and the absconding accused or the objector and there is no scope of filing a similar petition by an outsider. The learned counsel for respondent No,1 also argued that according to the Islamic Law, the gift-deed requires no registration and the simple paper containing the offer, acceptance and delivery of 'possession can be considered sufficient and could not be challenged on any ground whatsoever.
7. Mr. Ghulam Hur Khan Baluch, the learned counsel appearing on behalf of the State has expressed his concern over the conduct of the functionaries representing the State as they have not bothered to file any revision or a similar application before this Court. He also seriously opposed the impugned order and contended that the said order was not qualified with the legal requirements embodied in subsection 6(A) of section 88, Cr.P.C. While agreeing with the arguments of the learned counsel for the petitioner, he contended that a proper judicial inquiry should have been conducted by the learned S.D.M. And his failure to do so has the effect of denuding the impugned order of its legal sanctity.
8. I have heard the contentions of the learned counsel for the parties and gone through the record.
I am not inclined to comment upon the genuineness or otherwise of the gift-deed relied upon by respondent No,1 nor do I feel advisable to comment upon the justification or otherwise of the withdrawal of the amount by respondent No,1 from the joint account. I may observe that subsection (6-A) of section 88, Cr.P.C. Unequivocally demands that the claim or objection shall be inquired into. For the sake of convenience, the said subsection (6-A) is reproduced as below:-- ' "If any claim is preferred to, or objection made to the attachment of, any property attached under this section within six months from the date of such attachment, by any person other than the proclaimed person, on the ground that the claimant or objector has an interest in such property, and that such interest is not liable to attachment under this section, the claim or objection shall be inquired into, and may be allowed or disallowed in whole or in part: ' Provided that any claim preferred to or objection made within the period allowed by this subsection may, in the event of the death of the claimant or objector, be continued by his legal representative."
9. The expression "shall be inquired into" in the above subsection is significant which gives a clear import that in such an event when any claim or objection is preferred in terms of section 88, Cr.P.C., then such a claim or objection would essentially be put to a judicial inquiry. For carrying out such inquiry and for the purposes of determining such claim/objection, the learned S.D.M. Was required to have recorded the evidence on such point and a fair opportunity of proof and rebuttal should have been afforded to the parties.
10. In the instant case, no such procedure has been adopted and the learned S.D.M. After hearing the arguments for the petitioner and the State passed the impugned order. I may state that in such like a situation the mere arguments of the combatants are not sufficient for the purpose of formulation of a sound opinion regarding the claim/objection raised by a party. In this case the claim of respondent No,1 was obviously based on an unregistered gift-deed and accepting the same without putting it to the test of evidence is not free from danger. The learned counsel appearing on behalf of the contesting respondents when confronted with the non-compliance of subsection (6-A) aforementioned could not meet the above proposition successfully and merely stated that the arguments of the parties conveyed full picture to the learned S.D.M. I regret my inability to agree with the reply of the learned counsel for the contesting respondents and I hold that a proper inquiry regarding the claim -of respondent No,1 should be conducted by affording full and fair opportunity to the parties for recording their pro and contra evidence.
11. On the point of incompetency of the instant petition, I have no hesitation to observe that the powers vested in the High Court under section 561-A, Cr.P.C. Are unbridled and vast enough so as to arrest and rectify any process of abuse of process of Court and make such orders as may be necessary to secure the ends of justice. In this respect reliance can be placed on 1995 SCM R 1679 wherein the Honourable Supreme Court observed and I quote that "obviously section 561-A, Cr.P.C.
Bestows inherent powers upon the High Court to check abuse of the process of the Court. It is extensive in its nature and the words "nothing in this Code" had been intentionally used by the law- makers to unbridle the scope of section 561-A, Cr.P.C." It, therefore, follows that in appropriate cases where the High Court notices the patent violation of law which in its effect has caused miscarriage of justice, the High Court shall exercise its powers under section 561-A, Cr.P.C. In order to undo the mischief of any violation of law or misuse of process of the Court. In the instant situation, the High Court even itself can take notice of the wrong and exercise its powers. Thus, it would be immaterial whether the petitioner has any locus standi or not or whether the revisional remedy has been exhausted or not and, therefore, the objection of the learned counsel for the contesting respondents stands answered.
12. In wake of the above circumstances I accept this petition, set aside the impugned order, dated 13-10-1998 and remand the case back to the learned S.D.M., Kulachi with the direction to hold a proper inquiry into the matter in the light of my above discussion by giving full opportunity to the parties for proving their respective contentions and after recording such evidence as shall be necessary the learned S.D.M. Shall form his own independent opinion on the basis of the inquiry so conducted. A huge amount has been withdrawn from admittedly the joint account by respondent No,1 without having been determined as to what was, if any, the extent of share of Jamshed Khan in the said amount. Such determination would only be possible after recording the evidence. The learned S.D.M. Shall, however, be at liberty to demand the appropriate security from respondent No,1 to meet the eventuality of any recovery from her regarding the share of the accused Jamshed.