1985 PLP 1291 (SCMR)

‑‑‑S. 88(2) & (6‑B)‑‑Attachment of property‑‑Ordered by District Magistrate, Karachi in pursuance of warrant issued by District Magistrate, Rawalpindi‑‑ Objection application presented to District Magistrate, Karachi returned for being presented to Special Judge before whom case was pending‑‑Order impugned‑‑District Magistrate, Karachi, being under a legal duty to decide such application, directed by Supreme Court to hear and decide same. Muhammad Ali Shaikh, Advocate Supreme Court for Petitioner, Aziz A. Munshi, Deputy Attorney‑General and A. Satter Shaikh, Additional Advocate‑General, Sind instructed by M.uzaffar Hassan, Advocate‑on‑Record for Respondents Date of hearing: 9th April, 1984. M.S.H. QURAISHI, J.‑‑House No. 18‑B, South Circular Avenue, Defence Housing Society, Karachi, belonging to Dr. Mrs. Mahjabeen and its household goods were attached on 26‑8‑1982 by the District Magistrate South, Karachi, in pursuance of a warrant issued by Magistrate Section 30, Rawalpindi, in proceedings under sections 87 and 88, Cr.P.C. and endorsed to the District Magistrate, ‑Karachi. The appellant, claiming to be owner of the moveable property in the house objected to the attachment of the same by making an application, before the District Magistrate South, Karachi, but the latter instead of deciding the application, asked the appellant, vide order, dated 1‑11‑1982, to move the Special Judge Central, Karachi, before whom the case was pending. The appellant accordingly applied to the Special Judge Central, Karachi, but the application was dismissed for the reason that since the warrant had been issued by! Magistrate, Rawalpindi, before whom some cases were already pending, he (the Special Judge Central) "has got no jurisdiction to give relief sought for". The appellant came in revision before the High Court but the same, too, was dismissed in limine on 6‑2‑1984.

2. Leave was granted by this Court to examine the question whether the procedure laid down under sections 87 and 88 of the Code of Criminal Procedure had been followed.

3. The appellant's application objecting to the attachment, made before the District Magistrate South, Karachi, was competent under section 88(6‑B), Cr.P.C. which reads:‑ . (6‑B) "Claims or objections under subsection (6‑A) may be preferred or made in the Court by which the order of attachment is issued or, if the claim or objection is in respect of property attached under an order endorsed by a District Magistrate in accordance with the provisions of subsection (2), in the Court of such Magistrate." The District Magistrate, therefore, was under a legal duty to decide the appellant's application and as such his direction to him to move the Court of Special Judge Central, Karachi, amounted to refusal to exercise jurisdiction vested in him by law.

4. We, therefore, allow this appeal, set aside the orders passed by the High Court and the District Magistrate South, Karachi, and direct the latter to hear and decide the appellant?s objection application made under section 88(6‑B), Cr.P.C. M.I.???????????????????????????????????????????????????????????????????????????????????????????????????? Appeal allowed.