MUHAMMAD ARIF MIAN through Special Attorney vs ABDUL HAFEEZ and 4
This matter arises from a constitutional petition challenging an order passed by the Sessions Judge, Kasur, whereby a request by an under-trial prisoner (respondent No.1) to disburse funds from his National Savings Centre account through his wife for his daughters' marriage was addressed. The core legal question was whether the Sessions Judge acted without jurisdiction or perfunctorily in facilitating the release of funds while the accused was incarcerated in a criminal case involving allegations of fraud and cheating. The Lahore High Court held that the order passed by the Sessions Judge was innocuous, well within the mandate of his authority as custodian of the lawful rights of a person in custody, and that the complainant had not pursued any civil action for recovery. The petition was accordingly dismissed in limine. The key principle laid down is that a Sessions Judge acts within lawful authority when facilitating a prisoner's access to their own funds through procedural safeguards, provided no civil action has been initiated by a complainant to freeze or claim the subject-matter.
- Whether a Sessions Judge has the jurisdiction to facilitate an under-trial prisoner's request to access funds held in a National Savings Centre?
- Can an order directing authorities to proceed in accordance with law regarding a prisoner's funds be challenged in constitutional jurisdiction without a prior civil action by the complainant?
- Is an order passed by a Sessions Judge concerning the management of a prisoner's personal funds considered perfunctory or without jurisdiction when no recovery suit has been filed?
- Section 419, Pakistan Penal Code 1860
- Section 420, Pakistan Penal Code 1860
- Section 468, Pakistan Penal Code 1860
- Section 471, Pakistan Penal Code 1860
ORDER
S. ALI HASSAN RIZVI, J.--- Abdul Hafeez respondent No,1 had on 3-12-2008 filed an application before the learned Sessions Judge, Kasur on the ground that he had some money in the National Savings Centre (respondent No,2 in the application); that he urgently needed money for the marriage of his daughters; and that since he himself was in jail in criminal case F.I.R. No,489 of 2008 registered at Police Station Khudian, District Kasur dated 24-11-2008 under sections 419/420/468/471, P.P.C., the payment be directed to be made through his wife Mst. Khalida Parveen.
2. On the aforementioned application, the learned Sessions Judge passed the following orders:- "As the petitioner is in the judicial lock-up and according to the learned counsel for the petitioner, Mst. Khalida Parveen wife of the petitioner present in the Court want to withdraw this amount in order to meet with the expenses. Incharge National Savings Centre Railway Road, Kasur is directed to approach Superintendent District Jail, Kasur and to proceed with the matter in accordance with law. The petition stands disposed of."
3. Learned counsel for the writ petitioner contended that respondent No,1 was in jail in the aforementioned case F.I.R. No,489 of 2008 registered at Police Station Khudian, District Kasur, dated 24-11-2008 under sections 419/420/468/471, P.P.C.; that the amount lying in the National Savings Centre which was being sought to be taken out, was the subject-matter of fraud and cheating and that the learned Sessions Judge had passed the order which was perfunctory in nature. According to learned counsel, the order was unwarranted and without jurisdiction, and the learned Sessions Judge should have held an inquiry by summoning the investigator of the aforementioned criminal case.
4. Respondent No,1 is admittedly in jail in the aforementioned criminal case F.I.R. No,489 of 2008. It was inter alia the duty of the investigator to have made all efforts for recovery of the amount forming the subject-matter of the alleged fraud. If some amount was in the account of respondent No,1 and he wanted to take the same out for the purposes of marriage of his daughters through his wife Mst. Khalida Parveen, his request could not have been rejected. The learned Sessions Judge, as I could see, passed an order exercising all reasonable restraints. He directed the Incharge National Savings Centre Railway Road to approach the Superintendent, District Jail, Kasur and to proceed with the matter in accordance with law. The order was innocuous. As far as the rights of the writ- petitioner/complainant of the aforesaid F.I.R. Were concerned, he till today has not filed any civil action for recovery of the amount allegedly forming the subject-matter of fraud. Respondent No,3 being in custodia legis, the learned Sessions Judge of the District was custodian of his lawful rights.
The order passed by him was, therefore, within the mandate of his authority and cannot be upset in the constitutional jurisdiction of this Court. The writ petition is, therefore, dismissed "in limine."