MIRA JAN vs THE STATE and 2 others

' SAID MAROOF KHAN, J.---The petitioner Mira Jan was involved in a case under sections 302/324/148/149, P.P.C. Vide F.I.R. No,150 dated 5-6-1994 Police Station, Mandan, District Bannu. As per record he remained absconder for a considerable period, therefore, proceedings under section 88, Cr.P.C. Were initiated against him and an order for attachment of his land measuring 4 Kanals, 12 Marlas was passed by the learned Judicial Magistrate-III, Bannu on 28-12-1996 and in compliance with the attachment order Mutation No,212 pertaining to the said property was attested in favour of the State on 25-1-2002.

2. The petitioner surrendered himself before the Court and was arrested on 10-3-2003. He was tried by the learned Additional Sessions Judge-III, Bannu for the murder charge mentioned above and by judgment dated 13-11-2003 he was acquitted. After his acquittal he submitted ' an application on 27-5-2005 for release of his land. The application was, however, dismissed by the learned Judicial Magistrate-I, Bannu vide order dated 4-7-2005. The petitioner then preferred appeal before the learned Additional Sessions Judge-IV, Bannu who recorded the statement of Patwari Halqa as C.W. In order to know the factual position of the property at the spot but ultimately dismissed the appeal on 28-10-2005 on the ground that it was time-barred.

3. Being aggrieved of the orders of the two Courts below the petitioner filed the instant petition for quashment of the entire proceedings pertaining to the attached property and for its release.

4. The only ground on which the Courts below have declined to release the attached property is that the application was not submitted within the prescribed period of limitation. The learned counsel for the petitioner contended that the petitioner remained in actual physical possession of the property even after the passing of attachment order and had no knowledge of the said order during his trial for the murder charge as well as after his acquittal in the year 2003. That on getting the information about the attachment order in May, 2005 he submitted the application for release of the attached property on 27-5-2005 and that the application having been filed within one month from the date of knowledge is well within time.

5. On the contrary, the learned Deputy Advocate-General representing the State submitted that the petitioner was required to file the application for release of the property under section 89, Cr.P.C, within two years from the date of attachment order but he made the application after about 8-1/2 years and therefore the application was rightly dismissed being time-barred.

6. The period of limitation prescribed by section 89, Cr.P.C, for filing the application for restoration of attached property is two years from the date of attachment. The date of attachment in the case of immovable property means the date on which the property is practically and physically attached on the spot in accordance with the provisions of subsection (4) in pursuance of the attachment order made under subsection (1) of section 88, Cr.P.C.

7. Now the question which is to be determined is whether in pursuance of the order under subsection (1) of section 88, Cr.P.C. The property was actually attached under the provisions of subsection (4) or not. The record shows that while, passing the attachment order on 28-12-1996 the learned Judicial Magistrate-III, Bannu had simply directed the Tehsildar concerned to submit the copy of mutation and accordingly the mutation pertaining to attachment was attested in favour of the Government. Except the attestation of mutation no other steps were taken for implementation of the attachment order. The attachment was neither made through the Collector of the District nor the possession of the attached property was taken from the petitioner in accordance with the provisions of section 88(4), Cr.P.C.

8. The possession of the attached property remained with the petitioner during the alleged period of abscondence and even now he is in its possession as evident from the Revenue Record and statement of Guldaraz Patwari Halqa which was recorded by the learned Additional Sessions Judge-IV, Bannu on 8-9-2005. The property was not practically attached on the spot and the petitioner remained in its actual physical possession during the alleged period of abscondence and so he could not get the knowledge of the attachment order till May, 2005 and in this view of the matter the period of limitation for restoration/re-transfer of the attached property has to be reckoned from the date of knowledge and not from the date of attachment order. According to the petitioner he got the information about attachment order in May, 2005 and this fact stands unrebutted. He submitted the application under section 89, Cr.P.C, for release of the property on 27-5-2005 i.e, within one month of the date of knowledge and so the application is well within time.

9. The next question requiring consideration is whether the petitioner is legally entitled to release of the property regarding which the attachment order was made by the learned Judicial Magistrate or not. It is well-settled that the object of attachment of property under section 88, Cr.P.C, is to procure the attendance of an accused person and this object has already been achieved. In the murder case the petitioner remained absconder for some period but subsequently he surrendered himself before the Court and was ultimately acquitted in the case registered against him vide F.I.R.

No,150 dated 5-6-1994. The property in question never remained under the control of the Government and the attachment order has not attained finality as it is not yet implemented under the provisions of section 88(4), Cr.P.C. Since the date of attachment order till now the petitioner is in constant possession of the attached property. All the above facts and circumstances justified the release of the property from attachment and it was the requirement of law as well but the Courts below had wrongly declined to release the property. The refusal to release the attached property in favour of the petitioner on the only ground that he remained absconder in a criminal case, in which he has been ultimately acquitted, would be absolutely unjustified and against all canons of justice.

10. To secure the ends of justice this petition is allowed and the property measuring 4 Kanals, 12 Marlas attached vide order dated 28-12-1996 and Mutation No,212 attested on 25-1-2002 is ordered to be released in favour of the petitioner.