SAID JOHAR vs STATE

Through instant petition under Section 561-A Cr.P.C. read with Section 439 Cr.P.C., the petitioner has prayed for setting aside the impugned order dated 20.3.1997, passed by S.D.M. Buner, approved by District Magistrate Buner on 24.3.1997 and to quash the order dated 10.9.2005, passed by Zilla Qazi, Buner, whereby application of the petitioner was dismissed.

2. Brief facts of the case are, that Said Johar, petitioner was implicated in a case under Sections 302/307/148/149 PPC, vide FIRNo,665 dated 17.12.1993, Police Station Daggar, District Buner. The petitioner was abroad in connection with his livelihood and during his absence proceedings under Sections 87/88 Cr.P.C. were carried out. On 20.3.1997, an order regarding the attachment of his property was passed by S.D.M. Buner which was approved by District Magistrate on 24.3.1997. The petitioner surrendered himself before the police. He was tried and ultimately was acquitted of the charges by Zilla Qazi Buner, vide order dated 7.10.2003, appeal against which has not been filed so far. The petitioner then preferred an application before the trial Court, which was returned on 15.6.2005, to approach the Court of S.D.M. Thereafter, the petitioner filed application for restoration of his attached property before Zilla Qazi, Buner on 4.7.2005, which was dismissed vide order dated 10.9.2005, being time barred.

3.Dis-satisfied with die orders of the two Courts below, the petitioner filed instant petition for quashment of the entire proceedings pertaining to the attached, property and for its release.

4.Sahibzada Asadullah, Advocate for the petitioner contended that the only ground, on which the learned Zilla Qazi, Buner, has 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 maintained that the petitioner was abroad to earn his livelihood. On return he surrendered before the police. He was tried and acquitted of the charge leveled against him, by learned Zilla Qazi, Buner vide order dated 7.10.2003. Thereafter, he submitted an application for release of the attached property before Zilla Qazi, Buner on 4.7,2005. Reliance has been placed on Mira Jan Vs. The State and 2 others (2007 YLR 389 Peshawar) and Rana Muhammad Ramzan Vs. The State (1991 P Cr. LJ 2059).

5.On the contrary, Miss Neelam Khan, Advocate, 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 eight years and, as such, the application for restoration was rightly dismissed by the learned Zilla Qazi being time barred.

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

7.The possession of the attached property remained with the petitioner during the alleged period of abscondence and even now he is in its possession. 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 attached order 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. The petitioner was acquitted on 7.10.2003. He filed application under Section 89 Cr.P.C. for release of the attached property on 4.7.2005 i,e, within two years and so the application is well within time.

8. The other question whether the petitioner is legally entitled to release of the property regarding which the attachment order was made by the learned S.D.M. 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. 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.

For what has been discussed above, this petition is allowed and the property attached vide order dated 20.3.1997 is ordered to be released in favour of the petitioner.