SIKANDER ALI BROHI Versus STATION HOUSE OFFICER, POLICE STATION MADEJI

ORDER

FAHIM AHMED SIDDIQUI, J. ---Through the instant petition, the petitioner is seeking direction of this Court to respondents for the arrest of the nominated accused in Crime No.09/2015 lodged at Police Station Madeji on 04.02.2015 against unknown persons. However, the witnesses in their subsequent statements disclosed the names of the culprits. The police has submitted final report showing all the accused nominated by witnesses as absconders.

2. After issuance of notices, the official respondents filed their comments in which they have emphatically states that they are trying their level best for arresting the absconders and they gave assurance that they would arrest the accused persons. In response to a query, the learned counsel for the petitioner submits that the trial Court shall not be so effective in arresting of the nominated accused but he frankly admits that he does not move any application before the trial Court in this respect.

3. In response to the order dated 27.02.2017, the DIGP, Larkana Range was directed to furnish the report of absconding accused and as per a report submitted, a huge number of accused are absconders which runs into thousands. It is alarming situation which requires immediate attention of all the players of Criminal Justice System. It is worth noting that under Police Rules, the list of absconders is required to maintain by police and a complete mechanism is provided and as per Rule 23.21, the police in each district is bound to maintain a 'Register of Absconders' and SSP of each district is required to review the list of absconders of the said register in a way that only the genuine absconders should come in the list of absconders and the efforts of their arrest is monitored properly.

4. In this respect, this Court has already passed a detailed order in a case reported as Nasrullah v. Station House Officer, Police Station Jacobabad and 6 others (PLD 2016 Sindh 238), which covers nearly all the aspects of the matter pertaining to absconders with some concrete suggestion. It is the duty of the authorities concerned to follow the guidelines provided in the case of Nasrullah (supra).

5. It is worth noting that for absconders, the trial Court issues proclamation as per provision of section 87 of the Code of Criminal Procedure (hereinafter referred as the 'Code'). Under Section 88 of the Code, the order for attachment of the property of the absconding accused is issued by the trial Court. It is observed that the proceedings under sections 87 and 88 of the Code are not done according to the spirit of law. It is the duty of the Court that these two orders should be passed distinctively and as required under the law. After issuance of the proclamation, the next step comes i.e. attachment of the property of the proclaimed offenders under Section 88 of the Code, which reads as:

"88. Attachment of property of person absconding: (1) The Court issuing a proclamation under section 87 may at any time order the attachment of any property, movable or immovable or both, belonging to the proclaimed person.

(2) Such order shall authorize the attachment of any property belonging to such person within the district in which it is made and it shall authorize the attachment of any property belonging to such person without such district when endorsed by the Sessions Judge within whose district such property is situated.

(3) If the property ordered to be attached is a debt or other movable property, the attachment under this section shall be made-

(a) by seizure; or

(b) by the appointment of a receiver; or

(c) by an order in writing prohibiting the delivery of such property to the proclaimed person or to any one on his behalf; or

(a) by all or any two of such methods, as the Court thinks fit.

(4) if the property ordered to be attached is immovable, the attachment under this section shall, in the case of land-paying revenue to the Provincial Government, be made through the District Officer (Revenue) in which the land is situated, and in all other cases--

(e) by taking possession; or

(f) by the appointment of a receiver; or

(g) by an order in writing prohibiting the payment of rent or delivery of property to the proclaimed person or to any one on his behalf; or

(h) by all or any two of such methods, as the Court thinks fit.

(5) If the property ordered to be attached consists of livestock or is of a perishable nature, the Court may, if it thinks it expedient, order immediate sale thereof, and in such case the proceeds of the sale shall abide, the order of the Court.

(6) The powers, duties and liabilities of a receiver appointed under this section shall be the same as those of a receiver appointed under Order XL of the Code of Civil Procedure, 1908.

(6-A) if any claim is preferred to or objection made, to the attachment of any property attached under this section within six months from the date of such attachment, by any person other than the proclaimed person, on the ground that the claimant or objector has an interest in such property, and that such interest is not liable to attachment under this section, the claim or objection shall be inquired into, and may be allowed or disallowed in whole or in part:

Provided that any claim preferred or objection made within the period allowed by this sub-section may, in the event of the death of the claimant or objector, be continued by his legal representative.

(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 Sessions Judge in accordance with the provisions of sub section (2) in the Court of such Magistrate.

(6-C) Every such claim or objection shall be inquired into by the Court or Magistrate in which it is preferred or made.

(6-D) Any person whose claim or objection has been disallowed in whole or in part by an order under subsection (6-A) may within a period of one year from the date of such order, institute a suit to establish the right which he claims in respect of the property in dispute; but subject to the result of such suit, if any, the order shall be conclusive.

(6-E) If the proclaimed person appears within the time specified in the proclamation, the Court shall make an order releasing the property from the attachment.

(7) If the proclaimed person does not appear within the time specified in the proclamation, the property under attachment shall be at the disposal of the Provincial Government but it shall not be sold until the expiration of six months from the date of the attachment and until any claim preferred or objection made under subsection (6-A) has been disposed of under that subsection, unless it is subject to speedy and natural decay, or the Court considers that the sale would be for the benefit of the owner, in either of which cases the Court may cause it to be sold whenever it thinks fit."

6. From the bare perusal of the above statutory provision, it is evident that the purpose of the same is to force the offender to appear before the trial Court for facing trial. The above provision of law has equipped the trial Court with sufficient power to force an absconder to join the proceedings before it. According to subsection 4(g) of section 88 of the Code, the trial Court is empowered to issue an order in writing prohibiting the payment of rent or delivery of property to the proclaimed offender or to anyone on his behalf. Nowadays, a Pakistani cannot enter in a transaction through banking channel if he does not possess a CNIC issued by NADRA. The trial Court may issue such directions to the NADRA for digitally impounding or blocking the CNIC of absconding accused. After blocking or digitally impounding of CNIC, the person will become helpless and he cannot open or operate a bank account, obtain a passport and he also face hardship in so many other daily routines. If the details of CNIC is not available with the trial Court, the same can be obtained by issuing directions to NADRA Authorities through investigating officer, and it may be arranged through prosecuting agency by approaching the Family Tree of proclaimed offender from the data bank of NADRA. It is worthwhile to point out that the aim and object of subsection 4(g) of section 88 of the Code is to strangulate the financial resources to reach to the absconding accused, as such the trial Court may attach/stop salary of a proclaimed offender, if he is a government employee or serving in any corporation or private entity, and may also direct the state bank to frieze the bank accounts of a proclaimed offender until he surrenders himself before the law. It is not out of place to mention that all these actions against an accused cannot be taken unless a proper proclamation under section 87 of the Code is issued against him, and whenever the absconding accused appear before the trial Court and offer some explanation, and give assurance to face trial, the trial Court should not be languid in restoring his financial resources especially his salary and bank accounts.

7. The upshot of the above discussion is that every possible effort should be made by the trial Court as well as police to procure the appearance of an absconding accused before the trial Court. In the instant matter, the anxiety of the petitioner is that the accused nominated in his FIR are still at large. Neither they are arrested by police nor they have surrendered themselves before the trial Court. As per comments/ statements of official respondents belonging to police department, they are trying diligently for the arrest of the accused nominated in the FIR lodged by the petitioner and the counsel for the petitioner is satisfied with such statements. In spite of that the official respondents, especially the SHO concerned is directed to pace up his efforts while trial Court is required to do the needful in this respect.

8. With these observation, the instant petition is disposed of with no order as to cost. Copy of this order be sent to the trial Court through concerned Sessions Judge, as well as to SHO concerned for compliance.

MH/S-43/Sindh Order accordingly.