RAHIM BAKHSH and another vs THE STATE

MUHAMMAD EJAZ SWATI, J.---The only point that requires consideration in this case is whether the appellants are entitled to the restoration of their properties, which were attached under Section 88 of the Cr..P.C.? The appellants were wanted in case FIR No,06 of 2009, under Sections 302, 147, 149, P.P.C. and proceedings under Section 87 of the Cr.P.C. was issued on 12th May 2009, by the Additional Sessions Judge, Dera Allah Yar (hereinafter referred as to "the trial Court") as under: {{URDU TEXT}}

2. On 12th June 2009, the trial Court ordered for attachment of the immovable properties of the appellants, which are still attached. It appears that the appellants were acquitted by the trial Court, vide order dated 30th April 2012 and after getting acquittal, the appellants on 3rd September 2014, filed an application for restoration of their attached properties, however, the trial Court vide order dated 23rd September 2014 (hereinafter referred as to "the impugned order") dismissed the same on the ground that the application was filed after the lapse of two years of attachment and is barred by time, as provided under Section 89 of the Cr.P.C.

3. The learned counsel for the appellants contended that the appellants were arrested in the case and after facing trial, they were acquitted by the trial Court; that the appellants were not aware about the proceedings under Sections 87/88, Cr.P.C.; that after gaining knowledge, the appellants had filed an application for restoration of their attached properties on 3rd September 2014, which was dismissed vide the impugned order, however, the appellants are still in possession of the attached properties; that the proceedings under Sections 87/88, Cr.P.C. were initiated by the trial Court contrary to the said provisions of law, therefore, the same is liable to be set aside.

4. The learned Additional Prosecutor General mainly contended that the application for restoration of the attached properties was hopelessly barred by time under Section 89 of the Cr.P.C., therefore, it was rightly dismissed.

5. Having heard the learned counsel for the parties and considering the record of the case along with the relevant provision of law, Section 87 of the Cr.P.C. provides for proclamation against the persons who are absconders and the relevant provision of Section 87(1) of the Cr.P.C. reads as under: "87. Proclamation for person absconding.- (1) If any Court is satisfied after taking evidence that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such court may publish a written proclamation requiring him to appear at a specified place and at specified time not less than thirty days from the date of publishing such proclamation. "

The sub-Clause (3) of Section 87 of the Cr.P.C. further provides as under: "(3) A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day."

6. This Section must be construed and it appears that such Court may publish a written proclamation requiring the accused to appear at specified time not less than 30 days from the date of publication of such proclamation. Under Section 88 of the Cr.P.C., a Court issuing a proclamation under Section 87 of the Cr.P.C., may at any time order the attachment of the property belonging to the proclaimed offender or person and under Section 89 of the Cr.P.C, a person whose property has been attached can apply for its restoration within a period of two years from the date of the attachment, firstly, on the ground that he did not abscond for the purpose of avoiding execution of the warrant and secondly, he had no such notice of the proclamation, as to enable him to appear or attend the Court within the time specified therein. In the present case, the trial Court on 12th May 2009, simultaneously issued proceedings under Sections 87 and 88, Cr.P.C., which legally is a defective order. The trial Court vide order dated 12th June 2009, attached the properties of the appellants without making reference of date of publication of proclamation, therefore, there was no compliance with the 30 days period, which is one of the requisites to make the proclamation lawful. Provision of Section 87 of the Cr.P.C., prescribed the mode of giving notice to the accused to appear before the Court not less than 30 days and if no such notice is given, the proclamation cannot be presumed to be a valid proclamation, and the presumption which arises under Section 87(3) of the Cr.P.C., does not arise in the present case, as there was no proper and legal proclamation specifying the period of 30 days for the appellants to appear. There was also no statement in writing by the trial Court to the effect that proclamation was duly published on specified day, as provided under Section 87(3) of the Cr.P.C.

7. All the proceedings which had been initiated by the trial Court vide the orders dated 12th May, 2009 and 12th June 2009, were without any jurisdiction and contrary to the provisions of sections 87 and 88, Cr.P.C. The trial Court without adhering the aforesaid provisions of law has passed the impugned order, which is not sustainable.

In view of the above, the instant appeal is allowed, order dated 23rd September 2014, passed by the Additional District and Sessions Judge, Dera Allah Yar is set aside, resultantly, application under Section 89 of the Cr.P.C., filed by the appellants is allowed and the attached properties of the appellants are hereby restored in their favour.