B . K . SHAIKH vs THE STATE And Other
This appeal arose from the attachment of household goods in Karachi pursuant to a warrant issued by a Magistrate in Rawalpindi under sections 87 and 88 of the Code of Criminal Procedure 1898. The appellant, claiming ownership of the attached moveable property, filed an objection application before the District Magistrate South, Karachi, who endorsed the attachment order. Instead of deciding the application, the District Magistrate directed the appellant to approach the Special Judge Central, Karachi, who subsequently dismissed the application for lack of jurisdiction. The High Court also dismissed the appellant's revision petition in limine. The Supreme Court of Pakistan examined whether the statutory procedure under sections 87 and 88 of the Code of Criminal Procedure 1898 was followed. The Court held that under Section 88(6-B) of the Code of Criminal Procedure 1898, an objection to an attachment of property endorsed by a District Magistrate can be preferred in the Court of such District Magistrate. Consequently, the District Magistrate was under a legal duty to decide the application, and his failure to do so amounted to a refusal to exercise jurisdiction. The Supreme Court allowed the appeal and remanded the matter to the District Magistrate for decision.
- Whether a District Magistrate who endorses an attachment order has jurisdiction to entertain and decide objections to the attachment under Section 88(6-B) of the Code of Criminal Procedure 1898?
- Does a District Magistrate's direction to an objector to seek relief from another court, despite having statutory jurisdiction under Section 88(6-B) of the Code of Criminal Procedure 1898, constitute a refusal to exercise jurisdiction vested by law?
- Section 87, Code of Criminal Procedure 1898
- Section 88, Code of Criminal Procedure 1898
- Section 88(2), Code of Criminal Procedure 1898
- Section 88(6-A), Code of Criminal Procedure 1898
- Section 88(6-B), Code of Criminal Procedure 1898
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, to, 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.