P L D 1964 (W (PLP)

This revision application has been filed by Muhammad Hanif, son of Hakim Zahir Ali, under section 461‑A read with section 435, Criminal Procedure Code, against the order of the Additional City Magistrate, Karachi, dated the 27th of April 1962, in Case No. 23 of 1.962 of his Court and the order passed by the Additional Sessions Judge, Karachi on the 9th of February 1963, in Revision Application No. 120 of 1962 of his Court.

2. It appears that on the 21st of September 1961, the opponents Nos. 1 to 8 filed an application under section 488, Criminal Procedure Code, against the applicant for their main tenance before Mrs. Suraiya Ahmad Pai, Additional City Magistrate, Karachi. In this application, opponent No. 1 in this case claimed to be the wife of the applicant and opponents Nos. 2 to 8, both inclusive, his children. The said Additional City Magistrate, Karachi, rejected the claim of opponent No. 1, accepted that of opponents Nos. 2 to 8 and ordered the applicant to pay Rs. 30 per month to each of his children (opponents Nos. 2 to 8). Opponent No. 1 filed an application before the Additional City Magistrate on the 28th of March 1962, stating to the effect that the applicant had to pay Rs. 1,140 as arrears up to the 20th of March 1962 to opponents Nos. 2 to 8 in accordance with the order of maintenance allowance that had been passed in their favour, and requesting that his salary of Rs. 432 per month should be attached and paid to them. Thereupon, the Additional City Magistrate passed an order of attachment of the applicant's salary in the following words:‑ Now, therefore, in pursuance of the power conferred upon me under section 488(3), Cr. P. Code, 1898, I hereby order the attachment of the full salary of the said Muhammad Hanif or such other sum which may be payable to him by way of salary for the month of April 1962, and further direct you to withhold the disbursement thereof to the said Muhammad Hanif and deposit the same in this Court on or before the 4th May 1962, without fail and return this warrant duly executed. In other words the order of the Additional City Magistrate passed on the 27Lh of April 1962, and issued on the 30th of April 1962, meant that the authorities concerned should not pay the applicant his salary for the month of April amounting to Rs. 432, but should send it to her Court on or before the 4th of May 1962, to be paid to the opponents Nos. 2 to 8 as requested by opponent No. 1.

3. Against this order, the applicant went in revision to the Court of the Sessions Judge, Karachi. This application was actually dealt with and dismissed by Mr. Mehdi Ali Siddiqui, Additional Sessions Judge, Karachi. As already indicated, it is against the said orders of the Additional City Magistrate and the Additional Sessions Judge, Karachi, that this application has been filed in this Court.

4. It is contended by the learned counsel for the applicant that his salary for the month of April 1962, amounting to Rs. 432 was not movable property either on the 28th or the 30th of that month, as it had neither been drawn by his office from the treasury concerned, nor actually disbursed to him, and as such, could not be attached under section 386(1)(a), Criminal Procedure Code, in execution of the order of maintenance in accordance with the provisions of section 488(3), Criminal Procedure Code. It is further contended by the learned counsel that the order of the attachment of the applicant's salary for the month of April 1962, passed by the Additional City Magistrate and confirmed by the Additional Sessions Judge was not legally maintainable even under section 386(1)(b), Criminal Procedure Code, as the provisions of section 60, Civil Procedure Code, had not been complied with.

5. While dismissing the revision application of the applicant Mr. Mehdi Ali Siddiqui, Additional Sessions Judge, Karachi, has observed as follows :‑ I find that the attachment order of the Magistrate referred to the salary which had already accrued. The application and the order of attachment referred to the salary of the month of March (?April) and was issued on 28th of March (?30th April) and would have been received in the Naval Headquarters at the time the salary for the month of March (?April) would be liable to be disbursed. So, I think the order was perfectly correct and as such this revision is hereby dismissed.

6. As already pointed out, the order of attachment in question was passed by the Additional City Magistrate, Karachi, on the 27th of April 1962, and order of attachment was actually issued on the 30th of April 1962. Neither on the date, on which the said order was passed nor on the date, on which it was issued, the applicant's salary for the month of April 1962, bad even been drawn by his office from the treasury. On these dates it is obvious that it was not available to his office to be disbursed to him. Therefore, taking into consideration the view taken in Maung Soe Hlaing v. Ma Thein Khin (A I R 1934 Rang. 82) and Baldev v. Ramnath (A I R 1955 Raj. 61), it appears to me that the applicant's salary for the month of April 1962, was not movable property at the time when in the said orders were passed by the Additional City Magistrate and, therefore, it could not legally have been attached under the A provisions of section 386(l)(a), Criminal Procedure Code. The said orders of attachment could not even be justified as having been passed under the provisions of section 386(1)(b), Criminal Procedure Code as the procedure laid down for such attachment had not admittedly been followed.

7. Taking this view of the matter, accepting this applica tion, I set aside the said orders of the Additional City Magistrate and the Additional Sessions Judge, Karachi. K. B. A. Petition accepted.