1986 PLP 613 (MLD)

Kh. Muhammad Tufail for the State Bank of Pakistan. The O/Ls as well as the learned counsel for the State Bank, In this case the record of the Company and its other taken into their custody by the Police in connection with the officials of the Company vide F.I.R No.454 dated 22-10-1979, and F.I.R No.358, dated 30‑6‑1980 with Police Stations, 'A', Division, Mardan and Kalu Khan, respectively. It is stated that, presently, these cases are under hearing in the Court of Mr. Mastan Khan, Magistrate 1st Class, Mardan and the movables of the Company and its record are being treated as case‑property.

2. It is to be seen that the application for winding up was moved on 10‑10‑1979. Section 168 of the Companies Act, ordains that the winding up of a Company, shall be deemed to have commenced at the time of the presentation of the petition. A reference to section 178 will provide that all properties and effects of the Company are deemed to be in the custody of the Court from the date of the winding up of the Company and an obligation is also cast on the Official Liquidator, to take into custody all the properties, the effects and actionable claims to which the Company is or appears to be entitled. Section 232 lays down that where a Company is being wound up by the Court any attachment, distress or execution, put in force without leave of the Court against the effects of the Company, shall be void. It is obvious that the criminal cases were registered, the effects of the Company taken over by the police, and the jurisdiction in respect thereof assumed by the learned Magistrate after the commencement of the winding up proceedings:

2. The O/L submits that he moved an application before the learned trial Magistrate requesting that the custody of the record and effects of the Company be passed on to him and despite there being no objection on behalf of the prosecution to his request, these were not handed over to him and the learned Magistrate by his order dated 15‑7‑1982 disposed of the application with the observation that if there is any violation of the orders of the Lahore High Court, the Liquidator may move for contempt of Court proceeding against the agency concerned.

3. It appears that correct legal position was not brought to the notice of the learned Magistrate. Before passing any coercive order in the matter, it appears appropriate that he may be apprised of the correct legal position, by the Liquidator. Needless to mention, that in case the custody of the effects of the Company is handed over to the Liquidator, he shall produce such effects (which are capable of production) before the Criminal Court when required to do so.

4. This case shall be pre‑fixed after one month and in the meanwhile, the Liquidator shall move the learned trial Magistrate in the matter. A. A. Order accordingly.