' HAMID ALI MIRZA, J.---This is a criminal petition for leave to appeal directed against the order, dated 21-6-2000 passed by a learned Judge in Chambers of Peshawar High Court, Circuit Bench Dera Ismail Khan on an application under section 561-A, Cr.P.C. Whereby the order, dated 13-10- 1998 was set aside and the case was remanded to SDM Kulachi with directions to hold an inquiry into the matter after giving opportunity to the parties and to determine the extent of share of Jamshed Khan, the absconding accused, in the joint bank account and to demand security from the petitioner to meet the eventuality of any recovery from her regarding share of the abovesaid accused, the husband of the petitioner.
2. The brief facts of the case are that the petitioner's husband, Jamshed Khan, against whom cases on the basis of F.I.Rs, Nos.10 and 37 of 1996 at Police Station Kulachi, District Dera Ismail Khan have been challaned, could not be arrested and was declared as proclaimed offender under section 87.
Haji Muhammad Abbas, respondent No,1, the father of the deceased in the abovesaid criminal cases, made an application before the AC/SDM, Kulachi praying therein for freezing of accounts of Jamshed Khan, the absconding accused, maintained with National Bank of Pakistan, Kulachi Branch, and National Saving Centre, Kulachi. The AC/SDM, Kulachi, on 18-7-1998, proceeded under section 88, Cr.P.C. And passed an order for attachment of the agricultural property admeasuring 153 Kanals 1 Marla situated in village/Mouza Gul Muhammad in favour of the State and directed the Tehsildar to prepare revenue record and to submit a copy of mutation before 30-7-1998, and also passed an order for freezing of accounts. The Bank sought clarification of the order passed by him to the effect that the account which was being maintained was a joint account in the names of the petitioner and her husband, the proclaimed offender. The AC/SDM informed the Manager, National Bank that the Court had freezed the account of Jamshed Khan only and so far the other accounts, clarification in accordance with rules and regulations be sought from the authorities. The petitioner filed objections to the attachment/freezing of accounts through the order stating' therein that by virtue of Hibanama, dated 16-12-1995, said Jamshed Khan had gifted all his agricultural property mentioned above in her favour, therefore, the attachment/freezing of account order could not have been passed in respect of her property. In the circumstances, said SDM as per order, dated 31-10-1998 recalled his earlier order, dated 18-7-1998. Therefore, Haji Muhammad Abbas, respondent No,1, filed the petitioner under section 561-A, Cr.P.C. Before Peshawar High Court, which was heard and disposed of as per impugned order.
3. We have heard the learned counsel for the parties and perused the record.
4. The contention of the learned counsel for the petitioner is that the petition under section 561-A, Cr.P.C. Was incompetent as the impugned order of attachment was liable to be challenged in revision before the Sessions Judge having jurisdiction and further that the attachment order was only passed with the object of securing the attendance of the said absconding accused and it was made in favour of the State, therefore, respondent Haji Muhammad Abbas being a stranger had no locus standi to challenge the order, dated 13-10-1998 passed by SDM before the High Court. He further submitted that the joint account with the bank in the names of the petitioner and her husband, the absconding accused, could not have been attached under the law and so far the agricultural property, the same belonged to the petitioner as per Hibanama, the same being not of the said accused could not have been attached. He further submitted that determination of title of the property attached and the share in the joint bank account of the said accused being complicated question of facts and law could not have been decided in a summary procedure, therefore, the learned SDM was right in recalling the order earlier passed by him. He has placed reliance upon (i) Syed Zakaullah Shah v. Mst. Zohra and 3 others (1992 PCr.LJ 360), wherein the learned Single Judge of the Peshawar High Court held that objections to the attachment of property under sections 87 and 88, Cr.P.C. Could be made by any person claiming any right in that property against the proclaimed offender and when objections are allowed and attachment is withdrawn, no other person has got any right to challenge that order by way of revision petition; (ii)
Habibullah Jan v. M. Hassan Khan (1991 M LD 25), wherein the learned Judge in Chambers held that stranger and third party could not challenge the gift; (iii) Sonaullah Fakir v. Alam Fakir and others (1968 SCM R 311(2), wherein this Court held that the gift of a share of undivided property under Muslim Law is quite valid, and (iv) Hirschorn v. Evans (Barclays Bank Limited (2 King's Bench 801 (C.A.1938), wherein it was held that there was no evidence upon which the county Court Judge could find that the money in the joint account belonged solely to the husband and that the joint account of the husband and the wife could not be attached in answer to judgment against the husband. The learned counsel has also referred to page 66, paragraph 88 of Halsbury's Laws of England, Fourth Edition, Volume 3, wherein it has been observed that "A joint account cannot be attached in respect of a debt due by one of the parties, nor can an order be made against a liquidator's account in respect of a debt due by the company of which he is liquidator.
5. The learned counsel for the respondent No,1, on the other hand, submitted that the impugned order is legal and proper and that the learned Single Judge of the High Court was competent to pass the order under section 561-A, Cr.P.C., and further that the said petition could have been converted into a revision. He referred to section 88(6)(c) and (d), Cr.P.C. Contending that the objections or claim could be enquired into by the Court if preferred and objections or claim could be disallowed in whole or in part and the person claiming could institute a suit to establish his right, claim in the property in dispute. The learned counsel for respondents 2 and 3 submitted that respondent No,1 had only challenged the order, dated 13-10-1998, but so far the order, dated 12-8- 1998 in respect of the bank account, the same was not challenged and further submitted that the petition under section 561-A, Cr.P.C. Was incompetent as the beneficiary of the attachment order was the State and not respondent No,1, the father of the deceased.
5. The learned Additional Advocate-General, N.-W.F.P. Supported the impugned order to the extent, of immovable property only.
6. The interim order, dated 18-7-1998 of attachment passed by the SDM was made with the object of compelling the attendance of the accused Jamshed Khan against whom warrants were issued by the criminal Court. The petitioner filed objections to the interim order of attachment as required by subsection (6-A) of section 88 before the SDM, which objections were enquired into and were allowed as per order, dated 13-10-1998. Respondent No,1, the father of the deceased, had no locus standi to challenge the order, dated 13-10-1998 as he could not be said to have any interest or right in the attached property, considering that the matter was between the State and the absconding accused and the person having any right or interest in the attached property. The learned SDM prima facie found that the interim orders of attachment were not sustainable in law after inquiring into the objections of the petitioner when he found that the joint bank account and the immovable property which he found to be of the petitioner were not liable to attachment consequently he recalled the same. The orders, dated 13-10-1998 could not be said to be illegal, invalid, without jurisdiction or abuse of the process of law consequently could not have been challenged under section 561-A, Cr.P.C. Before the High Court by respondent No,1 who had no locus standi to challenge the same. In the circumstances, exercise of the powers under section 561-A, Cr.P.C. By the learned Judge in Chambers was not justifiable under the law. Therefore, the petition is converted into an appeal and allowed, consequently the impugned order remanding the case to the SDM is set aside.