Mst. LUQMAN BIBI Versus State

MUHAMMAD NAEEM ANWAR, J.--- Gul Muhammad Khan, the predecessor in interest of the petitioners, was nominated in a criminal case registered vide FIR No. 809, dated 19.06.1999, under sections 302/34 of the Pakistan Penal Code (P.P.C.), at Police Station A-Division, Mardan (Now City Mardan). However, he did not appear before the police or the court. Consequently, proceedings under section 512 of the Code of Criminal Procedure, 1898 (" Cr.P.C "), were initiated against him. His immovable property was attached under section 88 Cr.P.C, and in this regard, Mutation No. 3348 was attested in favour of the Provincial Government in the year 2003. Subsequently, Gul Muhammad Khan appeared before the court, faced trial, and was acquitted of the charge under section 265-K Cr.P.C by the learned Additional Sessions Judge-II, Mardan, vide order dated 18.12.2020. After his acquittal, he filed an application on 20.03.2021 for restoration of the property attached in favour of the Provincial Government. However, the learned Senior Civil Judge, Mardan, dismissed his application vide order dated 17 .05.2022 on the ground that it was barred by limitation. These findings were upheld by the learned Additional Sessions Judge-VII, Mardan, who dismissed the appeal filed by the legal heirs of deceased Gul Muhammad Khan vide judgment dated 22.10.2022. Therefore, the petitioners have tiled the present criminal revision before this Court.

2. The learned counsel for the petitioners contended that the petitioner was falsely implicated in the case, and upon learning about the registration of the FIR against him, he voluntarily surrendered before the law enforcement agency. During the trial, he was acquitted of the charge under section 265-K of the Cr.P.C, being innocent. He further argued that the petitioners have been in continuous possession of the property for the past 40 to 41 years, and except for the attestation of the mutation in favour of the Provincial Government, no further proceedings have been undertaken to dispossess them. He submitted that although the limitation period under section 89 of the Cr.P.C is two years, the reckoning of time should commence from the date the property is physically and practically attached on the spot. However, since the petitioners are still in possession of the property and are residing in the house, the judgments passed by both the courts below are not in accordance with law and are liable to be set aside.

3. On the contrary, the learned Assistant Advocate General, appearing on behalf of the State, submitted that the application was hopelessly time-barred, as the order for attachment of the property was passed in the year 2003, whereas the petitioner filed the application for its restoration in the year 2021. Therefore, the orders passed by both the learned courts below are in accordance with law, and this petition merits dismissal.

4. Arguments heard and available record perused.

5. The impugned findings of the courts below reveal that application of the petitioner was dismissed on the sole ground that it was not submitted within the period of two years, as prescribed by the provisions of section 89 Cr.P.C. The following are the questions for determination before this Court in the instant case.

1. Whether the period of limitation is to be calculated from the date of the order of attachment under subsection (1) of section 88 Cr.P.C, or from the date on which actual and physical possession of the property is taken from the proclaimed offender, as provided under subsection (4) of section 88 Cr.P.C?

2. Whether the two-year limitation period prescribed in Section 89 of the Code of Criminal Procedure applies equally to both scenarios when the person whose property was attached appears voluntarily before the court, or (ii) when such person is apprehended and brought before the court?

6. In order to reach to a logical conclusion, it would be appropriate to examine sections 87, 88 and 89 of Cr.P.C. These provisions provide a complete mechanism regarding attachment, sale of the movable and immovable property belonging to a proclaimed person and for its restoration 1 . Section 87 provides issuance of proclamation notice against an accused person, when he is avoiding his lawful arrest, requiring him to appear at a specified place and time not less than thirty (30) days from the date of its publication. Section 88 (1) next follows the rules and authorizes a Court to order attachment of any property movable or immovable or with both, of the person declared to be proclaimed offender while subsection (4) of section 88 prescribed the manner, if the property intended to be attached is immovable. Following attachment and assumption of possession, the next procedural step pertains to the sale of the attached property. Subsection (7) of Section 88 of the Code of Criminal Procedure, 1898 outlines the procedure for the sale of immovable property attached under Section 88(1). For reference, subsection (7) of Section 88 is reproduced below: -

(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 (6A) has been disposed of under that subsection, unless if 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.

The above Subsection (7) states that if the proclaimed person does not appear within the time mentioned in the proclamation, the attached property will be placed under the control of the Provincial Government. However, this property cannot be sold until six months have passed from the date of attachment and any pending claims or objections under subsection (6A) have been decided. An exception is made for property that is perishable or when the Court believes early sale would benefit the owner. In such cases, the Court may order its sale at any time after attachment. Similarly, section 89 Cr.P.C provides period of limitation for filing of application for restoration of the attached property as well conditions upon which the court is to be satisfied.

7. Turning to the first question, in the instant case, though, order of attachment was made under subsection (1) of section 88, in year, 2003 and the property was entered in the name of Provincial Government, vide mutation No. 3348, but, subsequently, no further proceedings as required under subsections (4) and (7) of section 88 Cr.P.C, were carried out, which deficiency render the process of attachment incomplete and, thus, in no way gained the finality. In order to fully understand subsection (4) of section 88 Cr.P.C, the same is reproduced for reference: -

(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 situate, 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.

In the above subsection (4), the words " and in all other cases " clarifies that immovable properties are of two types: one category includes properties for which revenue is paid to the Provincial Government, and the other includes all remaining types of immovable properties. If the immovable property is land that pays revenue to the Provincial Government, the attachment is to be executed through the District Officer (Revenue) of the district where the land is situated and in all other cases, the modes outlined in clauses (e) to (h) are applicable. In the case of all other types of immovable property, such as houses, shops, or land etc that does not pay revenue to the government, the court has the discretion to adopt any of the following methods (i) by taking physical possession of the property, (ii) by appointing a receiver to manage or hold the property, or (iii) by issuing a written order prohibiting the payment of rent or delivery of the property to the proclaimed person or anyone acting on his behalf. The court may apply any one of these methods or a combination of them, as it deems appropriate in the circumstances of the case.

8. A question arises as to whether the modes specified in clauses (e) to (h) of subsection (4) of Section 88 of the Code of Criminal Procedure are applicable only to that immoveable property for which no revenue is paid to provincial government, and whether land for which revenue is paid may be attached exclusively by the District Officer (Revenue). The second question is whether a mere entry in the revenue record in the name of the Provincial Government shall be considered a complete attachment of the property, without first identifying the attached property on the spot, followed by recording the entry in the revenue record, and then taking possession or adopting any of the modes outlined in clauses (e) to (h). For determination of these propositions, a harmonious and purposive interpretation of subsection (4) of Section 88 of the Cr.P.C is required to avoid redundancy. It is a well-settled principle of statutory interpretation that, in the case of criminal statutes, where two interpretations are reasonably possible, the interpretation that favours the accused shall be preferred. In other words, where provision of a statute on criminal law is susceptible to, two interpretations, the interpretation favourable to accused should be preferred 2 . In the present situation, one possible interpretation is that a mere entry in the revenue record would amount to the completion of attachment proceedings. However, this interpretation is not favourable to the accused, as it implies that he would remain unaware of the criminal case registered against him, the issuance of a proclamation notice, and the passing of an attachment order. Unless possession is taken from him on ground, he would not be informed, thereby depriving him of the opportunity to respond and defend himself. Taking possession serves as a form of notice to the accused, which not only informs him of the criminal proceedings but also enables him to appear and face trial in a timely manner. This aligns with the principle of due process guaranteed under Article 10A of the Constitution of Pakistan.

9. Article 24 of the Constitution of Pakistan confers a fundamental right on every citizen, stating that "No person shall be deprived of his property save in accordance with law. The phrase "in accordance with law encompasses the requirements of due process, natural justice, common sense, and reasonableness. Therefore, if, after the issuance of an attachment order, only an entry is made in the revenue record without taking actual possession of the property-which serves as an effective notice to the accused-such a process would violate Articles 10A and 24 of the Constitution. Furthermore, the phrase 'and in all other cases" used in subsection (4) of Section 88 of the Code of Criminal Procedure clearly indicates that the modes outlined in clauses (e) to (h) are applicable to immovable properties for which revenue is paid to the Provincial Government. This implies that where immovable property is recorded in revenue documents, it shall be attached through the District Officer (Revenue), and the modes prescribed in clauses (e) to (h) must also be followed. In contrast, in cases where no revenue record exists for the immovable property, only the methods in clauses (e) to (h) may be adopted. This additional requirement for properties recorded in the revenue system serves two purposes: first, to notify the revenue authorities about the attachment order, and second, to ensure the revenue record is duly updated. Therefore, it can be safely concluded that the modes specified in clauses (e) to (h) are applicable to all immovable properties, whether or not they are subject to the payment of land revenue. Moreover, even if, for the sake of argument, it is assumed that the methods outlined in clauses (e) to (h) are meant only for properties for which revenue is not paid, the present case would still fall under that category. This is because the property in question is not agricultural but constructed, as confirmed in the report of Patwari Halqa Irfan Ullah dated 07.09.2021, which states that construction, exists on the attached property. This establishes that the property falls within the category of "all other cases' as mentioned in subsection (4) of Section 88 Cr.P.C, since constructed property is not subject to land revenue, which applies only to agricultural land. Therefore, under both interpretations, the modes set out in clauses (e) to (h) are applicable to the present case. Accordingly, a mere attestation of mutation in favour of the government is not sufficient. To complete the attachment process, it was necessary to implement the procedural steps outlined in subsection (4), clauses (e) to (h).

10. In simple words, the requirements of subsection (4) of Section 88 Cr.P.C is that if the property ordered to be attached is immovable, the attachment under this section shall be made either by taking of possession; or by appointing of a receiver, which process are still to be completed. Undisputedly, neither possession was taken from the petitioner physically nor a receiver was appointed. As per revenue record, the petitioner, not only during the period of his abscondence, was in physical possession but till date, his legal heirs are in continuous possession of the property on the spot and when the property was not physically and practically attached on the spot in accordance with the provisions of section 88 Cr.P.C, then it cannot be presumed that the petitioner was in knowledge of the publication of the notices under section 87 Cr.P.C. In a similar situation, this court in the case titled Mira Jan v. The State and 2 others 3 has held that "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 which 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". Thus, considering the above, it is held that a mere entry in the revenue record is not sufficient to complete the process of attachment. The modes outlined in clauses (e) to (h) of subsection (4) of Section 88 of the Code of Criminal Procedure are required to be adopted to complete the attachment proceedings. Therefore, the answer to the first question is that the time limit of two years shall be calculated from the date of taking actual possession from the absconder.

11. Turning to address the second question, for proper understanding the mode and manner outlined in section 89 Cr.P.C, it would be appropriate to reproduce the same for clarity.

89. Restoration of attached property. If, within two years from the date of the attachment, any person whose property is or has been at the disposal of the Provincial Government, under subsection (7) of section 88, appears voluntarily or is apprehended and brought before the Court by whose order the property was attached, or the Court to which such Court is subordinate, and proves to the satisfaction of such Court that he did not abscond or conceal himself for the purpose of avoiding execution of the warrant, and that he had not such notice of the proclamation as to enable him to attend within the time specified therein, such property, or, if the same has been sold, the net proceeds of the sale, or, if part only thereof has been sold, the net proceeds of the sale and the residue of the property, shall, after satisfying thereout all costs incurred in consequence of the attachment, be delivered to him.

According to the above provisions of law, when a property has been placed at the disposal of Provincial Government under Subsection (7) of section 88 Cr.P.C and within two years from the date of attachment, the person either appears in court voluntarily or is arrested and brought before the court, and proves to the satisfaction of the court that he did not run away or hide to avoid his arrest, and that he did not receive proper notice of the court proclamation in time to appear, then the court may return the property to him. If the property has already been sold, the court shall return the amount received from the sale after deducting the expenses. If only part of the property was sold, then the person will receive both the remaining property and the sale amount after deducting the costs involved.

12. The question before the court is whether the two-year limitation applies only in cases where the absconder appears voluntarily within two years, or whether it also applies where the accused is arrested within the same period. A plain reading of the above provision makes it clear that the statutory period of two years from the date of attachment is expressly linked to two categories of persons, i.e., (i) those who appear voluntarily, and (ii) those who are apprehended and brought before the Court. The language of the provision does not draw a distinction in the application of the two-year limitation. Instead, the expression "if, within two years..." grammatically and legally governs both categories of appearance. The legislature, having consciously used inclusive phrasing, must be presumed to have intended equal treatment of both forms of appearance within the prescribed time frame. Had it been the intention of the law to restrict the time limit only to voluntary appearance, the legislature would have either excluded the second category or prescribed a separate limitation for persons who are arrested and produced in custody. The absence of any such separate clause strongly indicates that both forms of appearance are meant to be treated identically for the purpose of invoking the right to restoration of attached property. If the two-year limitation were interpreted to apply only to persons who appear voluntarily, it would result in irregular legal consequences. A pertinent question would then arise, what period, if any, would govern the case of a person arrested and brought before the Court, as the statute is silent on any such alternate timeline. To apply the two-year limitation to only one category and remain silent for the other would introduce confusion, uncertainty, and arbitrariness in a matter involving coercive deprivation of property. This would be contrary to the principles of legal certainty and fair procedure embodied in Articles 4 and 10-A of the Constitution of the Islamic Republic of Pakistan, 1973. It is, therefore, held that the two-year period prescribed under Section 89 Cr.P.C applies uniformly to both categories, whether the person appears voluntarily or is apprehended and brought before the Court, subject to the condition that he satisfies the Court that he did not abscond or conceal himself to avoid execution of the warrant, and that he had no sufficient notice of the proclamation to appear within the specified time. This interpretation not only accords with the plain and unambiguous language of the statute but also upholds well-established principles of statutory interpretation, ie., no part of a legislative provision should be rendered redundant or superfluous, secondly, where the legislature employs comprehensive or liberal language, it must be construed liberally so as to give full effect to the legislative intent and, thirdly, any interpretation that leads to irrationality, uncertainty, or arbitrary distinctions between similarly positioned persons must be avoided. The apex court in the case Sui Northern Gas Pipeline v. Messers SK Pvt Limited 4 has held that the renowned principle of statutory interpretation reverberates that if the words are clear and free from vagueness or uncertainty, then obviously, there shall be no need to turn to other mediums of interpretation and, similarly, in the case Messers Islamabad Electric Supply Corporation v. The Appellate Tribunal 5 the apex court held that the well recognized rule of construction or interpretation of any statute or its particular provision is that the intention of the legislature must be discovered from the words used. If the words used are capable of one construction only, then it would not be open to the courts to adopt any other hypothetical construction. If the words of a statute or its any provision are readily understood without any ambiguity, then obviously, it is not for the court to raise any doubt as to what they mean for any contrary view, rather than implementing the same without any hesitation.

13. Last but not the least, as already stated above, the purpose of the provisions of section 88 Cr.P.C is not to punish an accused person and its object is to procure his attendance, which object, on the face of it, has been achieved as the petitioner was arrested and after facing the trial, he was acquitted of the charge under section 265-K Cr.P.C. Likewise, the property, though, is entered in the name of the Provincial Government but practically and physically is in possession of the petitioners without any interference and, thus, the impugned attachment being not yet been finalized as required under the law, therefore, liable to be set aside. Copy of mutation No. 3348 attested in May 2003 has been annexed with this petition which reflects that from Khasra No. 1048 measuring 42 Kanal 19 Marla an area measuring 1 Kanal 13 Marla has been transferred to Provincial Government, for which a report has been submitted by the Patwari Halqa to the effect that the said area is constructed and is in possession of Gul Muhammad son of Muhammad Azim.

14. Thus, considering the above discussion, it is concluded and reaffirmed that attachment includes taking physical possession and other methods as specified in subsection (4) of Section 88 Cr.P.C. Therefore, the limitation period under Section 89 Cr.P.C. can only be invoked after the complete attachment of the immovable property. In the present case, since the process of complete attachment was not carried out, the question of limitation does not arise in the given circumstances.

15. Accordingly, the instant criminal revision is accepted, resultantly, the impugned orders/judgments of both the courts below are set aside, consequently, on acceptance of application, the property attached, vide mutation No. 3348, is directed to be released in favour of the petitioners being legal heirs of Gul Muhammad Khan.

JK/29/P Revision allowed.

1 Habib-ul-Haque alias Ajar v. Umer Gul (2004 SCMR 1743).

2 2023 SCMR 241 and 1998 SCMR 1794.

3 (2007 YLR 389).

4 (2025 SCMR 570).

5 (2023 SCMR 1516).