P L D 2018 Balochistan 8
Before Muhammad Ejaz Swati, J
RAHIM BAKHSH and another ---Appellants
Versus
THE STATE---Respondent
Criminal Appeal No.(s) 131 of 2014, decided on 13th February, 2015.
Criminal Procedure Code (V of 1898) ---
----Ss. 87, 88 & 89---Attached property, restoration of ---Principle ---Appellants after facing trial
were acquitted from the charge ---Properties of appellants were attached at the time of issuance of
process by Trial Court ---Appellants (accused) sought rest oration of said property after two years
of the order of attachmwnt ---Trial Court declined to restore properties to appellants ---Validity ---
Provision of S.87, Cr.P.C., prescribed mode of giving notice to accused to appear before Court
not less than thirty days and if no such notice was given, proclamation could not be presumed to be valid proclamation and presumption under S.87(3), Cr.P.C. would not arise ---No proper and
legal proclamation specifying period of thirty days for appellants to appear and no sta tement in
writing by Trial Court to the effect that proclamation was duly published on specified day, as provided under S.87(3), Cr.P.C. existed in the present case ---All proceedings which had been
initiated by Trial Court were without any jurisdiction and contrary to the provisions of Ss. 87 &
88, Cr.P.C.---Trial Court without adhering to the provisions of law had passed the order in question which was not sustainable ---High Court set aside attachment order and restored
properties to the appellants ---Appea l was allowed in circumstances.
Zameer Ahmed Safi for Appellants.
Abdul Latif Khan Kakar, Additional Advocate -General for the State.
Date of hearing: 15th January, 2015.
JUDGMENT
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 S ection 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:
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 atta ched 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 tim e, 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 pr oceedings 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 stil l 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 perso n 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 re quiring 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 Sect ion 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 restora tion 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 at tend 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 Se ction 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 contrar y 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 f avour.
MH/136/Bal. Appeal allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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