ALI KHAN Versus THE STATE

The petitioner Ali Khan has moved this criminal revision under section 435 read with section 439, Cr.P.C. praying therein that the impugned order, dated 19‑4‑1975 passed by the learned Sessions Judge, Mianwali may be set aside restoring the property to him which property was auctioned under section 88, Cr.P.C.

2. Briefly stated, the facts of the case are that the petitioner alongwith five others was the accused person in a case under section 302/34/109, P.P.C. registered at Police Station Saddar, Mianwali on 17‑1‑1972 for the murder of one Yaran Khan, Advocate .of Mianwali. There was old enmity existing between the parties. On 17‑1‑1972 the petitioner came to know about the murder of Malik Yaran Khan and he apprehended his false implication at the hands of the complainant party because of the previous enmity between them. Under the circumstances, the petitioner went to Karachi with the hope that in the meantime the dispute shall be settled down and the situation will ease. However, the Investigating Agency declared the two co‑accused of the petitioner, namely, Ghulam Muhammad and Sikandar Khan as innocent and placed them in column No.2 of the challan. Similarly, another co‑accused Muhammad Hayat was also declared innocent. On 19‑2‑1972 the investigating police obtained warrants of arrest against: the petitioner and entrusted the same to one Abdul Mateen, Foot Constable No. 145 on 24‑2‑1972 for the arrest of the petitioner. The said constable submitted a report that the petitioner was not traceable. Accordingly, Mir Zaman Khan, Sub‑Inspector of police made an application for the issuance of proclamation which was issued on 18‑3‑1972. The above‑referred proclamation required the petitioner to appear before the learned Magistrate on 4‑4‑1972. Further allegation is that the petitioner did not appear before the Magistrate as required by the proclamation and as such, proceedings under section 88 of the Criminal Procedure Code were initiated and concluded. The proclamation was ordered on 18‑3‑1972 and as such, only 16 days were allowed to the petitioner for making his appearance before the Court. Ultimately the proclamation was published on 28‑3‑1972. As a consequence of the above, the immovable property of the petitioner was put to auction by the learned Magistrate and attachment warrants thereof were issued for the above purpose. The property of the petitioner was sold in an open auction for a sum of Rs.7,700. However, the sale was not confirmed by the learned Collector on the ground that the auction amount was grossly insufficient. Consequently, the Tehsildar Settlement, Mianwali was directed to re‑auction the property in question on 1‑9‑1973. Before the property in question could be re‑auctioned, the petitioner appeared before the Superintendent of Police, Mianwali on 20‑2‑1973 and he was accordingly arrested. An application was moved by the petitioner under section 89, Cr.P.C. for the release cf his attached property on the ground that he was not at all aware of the proceedings taken against him under section 87/88, Cr.P.C. The petitioner's application was dismissed by the learned Area Magistrate vide his order, dated 31‑8‑1973 on the ground that this was within the knowledge of the petitioner that proceedings had been initiated against him and that he had been named as an accused person in the murder case. Thus, the property of the petitioner was re‑sold in an open auction for a sum of Rs.8,000. The petitioner made another application praying therein that auction money may 'be returned to him but this time too his application was rejected on the same day. The petitioner then went in appeal before the learned Sessions Judge under section 405, Cr.P.C. challenging the above referred order. The learned Sessions Judge after hearing learned counsel for the parties proceeded to dismiss the appeal of the petitioner vide his order, dated 19‑4‑1975.

3. It is contended by learned counsel that no sufficient time was allowed to the petitioner to appear before the Law Enforcing Agencies. Learned counsel forcefully submitted that in view of the limitation provided under law one month's time was to be allowed necessarily to the petitioner. Learned counsel stated that it is crystal clear from the record that lesser time than thirty days time was allowed in the case to appear before the police. Learned counsel further submitted that in this background the whole proceedings initiated by the authorities in resuming the property of the petitioner and auctioning the same were illegal on the face of it. The learned State counsel submitted that the petitioner was aware of the fact that a criminal case under section 302, P.P.C. had been registered against him. Learned counsel urged that no plausible explanation has been given by the petitioner for his absconsion and, therefore, he was rightly and legally declared as a proclaimed offender.

4. I have heard learned counsel for the parties, and have perused the record very carefully. The main contention of learned counsel for the petitioner is that under section 87, Cr.P.C. from the date of the publication of the proclamation clear 30 days' time is to be giver, to the offender to surrender before the authorities. Learned counsel stated that in the case in hand only 16 days' time was given and this was a clear violation of the law. Learned State counsel has not been able to say anything about this pure question of law. Learned counsel conceded that under law a period of 30 days has to be given to the offender for his appearance from the date of publication of the proclamation. I have checked the record and have found that before the expiry of 30 days from the date of publication of the proclamation, the authorities resumed the property of the petitioner and put the same to auction. Learned counsel has not been able to say anything about this question of law. However, he has conceded that the period above referred has been allowed by law on the subject. In my view, the resumption of the property and putting the same to auction before the expiry of statutory period of limitation was wholly illegal. This aspect of the case has not been considered by then Revisional Court, nor by the learned trial Court. With this observation, I proceed to declare the impugned orders illegal and set the same aside. The Criminal Revision succeeds and is allowed.

M.Y.H./A‑290/L ????????? ??????????????????????????????????????????????????????????????????????? Petition allowed.