Mst. Luqman Bibi and others Vs The State

PF^SHA\MAR HIGH . PBSHAWAR

UTJDICIAL DEPARTMENTI

Criminal Revision No. 255/fr22.

I\rlst r uqrnm Bibi and o&crs w. the Statc.

PRESENT:-

For Petitiouer Mr. AsadJan, Advocate.

For respoldents /State Mr. Fazal Mawla, AAG

Date of hearirg 2L.0'.90.ili

.IUD GMENT

MUIIAMMAD NAEEIT{ AI\fVIAR L- 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 (PPC), at Police Station A-Division, Mardan (Now City Mardan). However, he did not appear befbre the police or the court. Corrsequently, proceedings under section 512 of the Code of Criminal Procedure, 1898 ('CY.P.C"), were initiated against him. His inunovable property was altached under section 88 Cr.P.C, iuxl in this regard, Mutation No. 3348 was attested in thvour of the Provincial Goverrunent in the year 2003. Subsequently, Gul Muharnmad Khan appeared belbre the court, faced trial, and was acquitted of dre charge under section 265-K Cr.P.C by the learned Additional Sessions Judge-II, Mardan, vide order dated 18.12.2020. Alter lis acquittal, he filed an application on 20.03.2021 lbr restoration of thc property auached in favour of the Provincial Govermnent. However, dre learned Senior Civil Judge, Mardan, dismissed his application vide order dated 17 .05.2022 on the ground drat it was barred by limitation. These Iindings were uphekl by the leamed Additional Sessions Judge- VII, Mardan, who dismissed the appeal filed by dre lepl heirs ol deceased Gul Muhamrnad Khan vide judgnent dated 22.10.2022. Therefbre, the petitioners have tiled the present crirninal revision belbre tlis Court.

2.'fhe learned counsel for the petitioners contended that the petitioner was lhlsely implicaled in the case, and upon learning alrcut the registration of the FIR against him, he voluntarily surrendered befbre the law enfbrcement 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 4l years, and except lbr the attestation of the rnutation itr lhvour of the Provincial Government, no further proceedings have been undertaken to dispossess them. He subrnitted that although the limitation period under section 89 of tlte Cr.P,C is two years, the reckoning of time should commence lrorn the date the properff is physically and practically attached on the spot. However, since the petitioners are still in possession o[ the property and are residing in thc 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 behall'of the State, submitted that the application was hopelessly time-barred, as the order lbr attachment of the property was passed in the year 2003, whereas the petitioner filed the application lbr is 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.Argurnents heard and available record perused.

5.Thc irnpugned findings of the courts below reveal that application of the petitioner was dismissed on the sole ground that it was not submitted widrin the period of two years, as prescribed by dre provisions of section 89 Cr.P.C. The following are the questions fbr determination before this Court in the rnstant case l. Whcthcr the oeriod of lirniredon is to b€ ftom ftc rlate of &c omder of attachmt under subs€ctim (1) of Ecction 8E CrPC. or ftom the darc on wlich acural and ohrical Dcns€ssbn of

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the eropcrty is akcn from the proclaimed offcoder. ar provilcd undcr subsec{ion (4) of s€ction 88 CrPCP

9, Whether the twuyear [migtion pcriod ucccribcd in Section 89 of thc Code Criminel Procedure eraliac eouallv to both scenarios-O q,hen *re Derson whose oroDertv m.s anTrh.d appears rnhmhnlly bcforc fhc courl or 6il whcn such p€rsop is aoorehended and broudrt before thc courtP

6.In order to reach to a logical conclusion, it would be appropriate to exarnine sections 87, 88 and 89 of Cr.P.C. These provisions provide a complete mechanism regarding attachmen!

sale of the movable and immovable properf belonging to a proclaimed person and lbr its restoration'. Section 87 provides issuance of proclamation rrotice against an accused person, when he is avoi<ling his lalvhrl arrest, requiring hirn to appear at a specified place and time not less t]ran thirty (30) days from the date of is publication. Section 88 (l) next fbllows the rules and authorizes a Court to order affaclrrnent of any property movable or irnrnovable or with both, of the person declared to be proclaime(l ollbnder wlile sub-section (4) of section 88 prescribed the manner, if the property intended to be attached is imrnovable. Following attaclunent and iusurnption of possession, the next J)rocedural step pertains to the sale of the attached property. Sub section (7) ol Section 88 of the Code of Criminal Procedure, 1898 oudines the procedure for the sale of irnmovablc properry attached under Section 88(l). For rel'erence, subsection (7) of Section 88 is reproduced below: - 0 If tb proc.hid pnoa des rct appcar within tb timc sryifrd iD fu prvlenalim' tfu propty wda zttzchncnt shall bc at frc dispoal of the Ptouincial Gowmme'nt, but it shall notb dd until tfu expiation of six a@tbt from the datc d frc attunre,Dt eil wlil any chim peM ot objxtion mdc under sufuctiol (6A) hat bcn dis@ of undq that suMion, wbss if is subicct to spdy ad naaaal dccay, or thc hn awidss thet fu seb wrW b for the b.ncfit of thc owrcr, ia cither of which ases the hwtmaya use it a b soW fracrter it thinks fiL I HABIB-UL-HAQUE alias AJAR Vs UMER GUL (2(XX S C M R 1743)

The above Subsection (7) states that if the proclaimed person does not appear within the time mentioned in the proclamation, thc attached property will be placed under the control of the Provincial Governmenl However, this property cannot be solcl until six months have passed liom dre 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 benelit the owner. In such cases, the Court may order its sale at any time alier attachment. Similarly, section 89 Cr.P.C provides period of lirnitation lbr filing of application fbr 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 (l) of section 88, in year, 2003 and the properff was entered in the narne of Provincial Governrnent, vide mutafion No. 3348, but, subsequendy, no l'urther proceedings as required under subsections (4) and (7) of section 88 Cr.P.C, were carried ou! which deliciency render the process of attachment incomplete and, thus, in no way gained the finaliqr. In order to fully understand subsection (4) of section 88 Cr.P.C, the same is reproduccd lbr re I'erence: -

(4)If fu powty orddd to b atuhd it immwzile, the zta.htnat 1s1ls'thit smt*m shall, in the asc of hd pyins nEvenue to the Prouincial Gowome.nO b made thrcugh the Disdrt Ofuar (Rcvc.aue) in which the land is rianb, and in all othcr cares:

(e)byakiasposwsi@; q

(l)bythe appointueatofa twiver; or (d by an ordq in witilg pobfriling the palnat of rcnt or dclivuy of proprty to the pochiucd Iruson or to eny oac oa his bchalfi or

(h)by all or aay two af ilct rcfrdg as tb hw thioLt ft- In the above subsection (4), dte words "and in all other cases" clarifies that irunovable properties are of two ffpes: one category includes properties for which revenue is paid to the

Provincial Govenunent, arxl thc other includes all rernaining gpe s of iurrnovable propertics. II'thc irrunovable properry is land thal pays revellue to the Provincial Govermnent, the attacltment is to be executed tlrrough the District Officer (Revenue) of the district where the lzurd is situated zurd in all other cases, the urodes outlined in clause (e) to (tr) are applicable. In the case of all other types ol'irrtrnovable property, such as houses, shops, or land etc that does not pay rcvenue to the government, the court has the discretion to adopt any of the tbllowing rnethods (i) by taking physical possession ol'thc property, (ii) by appointing a receiver to ntimage or hokl the property, or (iii) by issuing a lwitlen order prohibiting thc payrnent ol-rent or delivery of the property to the proclairtre d person or anyone acting on his behalt. The court ulay apply tuly one of these methods or a combination of the m, as it dccrns appropriate in the circumstances ol' the casc.

8.A question arises as to whether the rnodes specified in clauses (e) to (h) o[ subsection (4) of Section 88 of the Code of Criminal Procedure are applicable only to that imrnoveable property for which no revenue is paid to provincial govenlnlelrt, arxl whether lzurd fbr which revcnue is paid rnay be attached exclusively by thc District Ollicer (Revenue). The second question is whether a lnere entry in thc revenue record in the namc of the Provincial Governrnent shall be considered a cornplete attachrnent o[ the property, without first identifying the attached property on the s1lot, Ibllowcd by recording the entry in the revenue record, and then taking possession or adopting any of the modes outlined in clauses (e) to (lr. For detennination ol' these propositions, a hannotrious and puq>osive interpretation of subsection (4) of Scction 88 ol' thc Cr.P.C is required to avoitl rcdumlancy. It is a we ll-settle<l principle of statutory interprctation that, in the ciuse o[ crirnina] statutes, where two inte rpretations are reasortallly possible, the interpretation that lhvours the accuscd shall be pre l'erred, In otlter words, where

provision of a statute on criminal law is susceptible to, two irtte rpretations, the interpretation favourable to accused shoulcl be pref'erred'. In the present situation, one possible interpretation is that a mere enhy in the revenue record would arr)ount to the completion of attachment proceedings. However, this interpretation is not lavourable to the accused, as it irnplies that he would remain unaware of the crirninal case registered against him, the issuance of a proclarnation notice, and the passing of an attachment order. lJnless possession is taken from him on ground, he would not be infbrmed, thereby depriving hirn of the opportuniq, to respond and defend himself. Taki.rg possession serves as a form of notice to the accused, which not only inlbnns hirn of the criminal proceedings but also enables hirn to appear and I'ace fial 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 conf'ers a Iundamental riglrt on every citizen, stating that "No person shall be deprived of his property save in accordance with law.' The plrrase "in accordance with law" enconpasses the requirements of due process, natural justice, common sense, and reasonableness. Therefbre, iI, alter the issua:rce o[ an attachment order, only an entry is rnade in the revenue record without taking actual possession of the properff-which serves as an eft'ective notice to dre 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 Sectron 88 of the Code of Criminal Procedure clearly indicates that the modes oudined in clauses (e) to (h) are applicable to immovable properfies for which revenue is paid to the Provincial Govemment. This implies thal where irnrnovablc property is recorded in revenue documents, it shall be affachcd tlrrough the District Ollicer (Revenue), and the urodcs yrrcscribed in clauses (e) to (h) rnust also be followed. In 'zo23 scMn z+1, l99E scMR 1794

contrast, in cases where no reveDue record exists lbr the irnrnovable 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 irnmovable properties, whether or not they are subject to the payrnent. of land revenue. Moreover, even i[, for the sake of argurnent, it is assurned t]rat the rnethods 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 constructerl, as conlirmed in the report of Patwari Halqa Irfan Ullalr dated 07 .09.2021, which states that construction, exists on the attached properry. This establishes that the property falls within the cafegory of "all other cases" as mentioned in subsection (4) of Section 88 CrPC, since constructed property is not subject to land revenue, which applies only to agriculnral lurd. Therefbre, under both interpretations, the modes set out in clauses (e) to (h) are applicable to the present case. Accordingly, a mere attcstation of mutation in favour of tlte government is not sulficient. To complete the attachment. process, it was necessary to irnplement the procedural steps outlined in subsection (4), clauses (e) to (h).

10.In sirnple words, the requiretnents of subsection (4) of Section 88 Cr.P.C is that if the properry ordered to be attached is irnrnovable, the attachment under this section shall be rnade either by taking of possession; or by appointing of a receiver, which process are still to be completed. Undisputedly, neither possession was taken from t]te 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

properq/ on the spot and when dre 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 casc titled Mira lan vs. The Sute and two others'has held th* "the periotl of lirnitation prescribed by section 89 Cr.P.C for filing the application for restoration of attached property is two vears frorn the date o[ attachment which rneans the date on wl ch the oro rtv is oracticallv and nhvsica-llv attached on the soot in accord widr dre o rovisions of subsection (4) in pursuance ol drc attachment order made under sub-section (l) ol section 88 Cr.P.C'. Thus , considering the above, it is held tlnt a mere entry in the revenue record is not sulficient to completre the process of attachment. The modes outlined in clauses (e) to (1, ol' subsection (4) of Section 88 ol' the Code of Crirninal Procedure are required to be adopted to complete the attaclunent proceedings. Therefbre, the answer to the first question is that the time limit of two years slull be calculated frorn the date of taking actual possession from the absconder.

11.Turning to address the second question, fbr proper understarxling t]re mode and manner outlined in section 89 Cr.P.C, it woukl be appropriate to reproduce the same for clarity.

89.Rcwntion of anchd poprtlz E within two van fioa tlre daa of fu aacbet, eDy Ftwn whac poptly is or bt fu at thc ditpeel dtfu hoyhrciil Govanmat, uadcr suMtion (7) of scction 88, appars uohnaih or it apprcncdd ad fuutgbt b.fore thc brttt bywfiac ada tfu proryttyms ahchd, ortfu bwta which wch hutt b suMineb, ad povu a thc sti&ction of ilrch hnt frat hc dil aot afud or aneal himtetr for thc Pttposc of auoiding execatbn of the wenznt, ad that hc fud not such naie of tfu pulawtioa et to @ablc him b aM wi&ia fu time apifrd tlrercin, flrcn prolerty, or, if the sme bas fun sold, the net pwds of thc salc, u, if patt urly tha@f hes fua sold, the na pwls of thc sb ad 'lzooz Yun 3so;

tltc residuc of thc pop,tly, shall, afur sathfying thawtt all cosb hanad in cusequacc of thc aachrene fu delivetdbhim.

According to the above provisions of law, when a property has been placed at the disposal of Provincial Govemment under Sub section (7) of section 88 Cr.P.C and within two years from t]re date of affachment, the person either appears in court voluntarily or is arrested and brouglrt belbre the court, and proves to the satisfhction of the court drat he did not run away or hide to avoid his arrest, and drat he did not receive proper notice of the court proclamation in time to appear, then the cout may return the l)roperq/ b him. If the property has already been sold, the court shall retum the arnount received from t]re sale after deducting dre expenses. If only part of the property was sold, then the person will receive both the remaining property and the sale zunount alter deducting the costs involved.

12.'fhe question belbre the court is whether dre hvo-year lirnitation applies only in cases where the absconder appears voluntarily within nvo years, or whether it also applies where the accused is arrested within the same period. A plain reading of the above provision rnakes it clear that the statutory period of two years from the date of attaclmrent is expressly linked to two categories of persons, i.e ., (i) t]rose who appear voluntarily, and (ii) those who are apprehended and brouglrt before the Court. The languige of dre provision does not draw a distinction in dre application of the two-year limitation. Instead, the expression "if, within rwo years..." grammatically and legally governs both categories ol'appearance. The legislature, having consciously used inclusive lllrrasing, must be presumed to have intended equal treatment of both fbrms of appearance within the prescribed time lrarne. Had it been the intention of the law to restrict the time lirnit only to voluntary appea.nmce, the legislature would have either exduded the second category or prescribed a separate limitation fbr persons who are arrested and produced in custody.

l0

The absence of any such separate clause strongly indicates that both lbrrns of appearance are meant to be treated identically for dre purpose of invoking the riglrt to restoralion of attached properry. II'the nvo-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 md brought befbre the Court, as the statute is silent on any such altemate tirneline. To apply the two-year limitation to only one category and rernain silent for the other would inhoduce confusion, uncerlainf, and arbitrariness in a matter involving coercive deprivation of property. This would be contr'ary to the principles of legal certiainty and fair procedure embodied in Articles 4 and l0-A of the Constitution of the Islamic Republic of Pakistan, 1973. It is, dreretbre, held that the two-year period prescribed under Section 89 Cr.P.C applies uniformly to both categories, whether the persorr appears voluntarily or is apprehended and brouglrt before the Court, subject to the condition that he satisfies the Court that he did not abscond or conceal hirnself to avoid execution of the warrant, and tlnt he had no sullicient notice of the proclamation to appear within the specified tirne. This interpretation not only accords with the plain and unarnlliguous langrrage of the statute but also upholds well- established principles of statutory interpretation, i.e., no part of a legislative provision should be rendered redundant or superfluous, secondly, where t]re legislature employs cornprehensive or liberal language, it must be construed liberally so as to grve full ellect to the legislative intent and, thirdly, any interpretation that leads to irrationaliry, uncertainty, or arbitrary distinctions between similarly positioned persons must be avoided. 'l'he apex court in the case Sui Northem Gas Pipeline vs. Messers SK pvt limited'lns held that the renowned principle of statutory interpretation reverberates drat if t]re words are clear o (202s scMR 570)

ll

and free frorn vagueness or uncertainty, tlten obviously, there shall be no need to turn to otlter mediurns of interpretation and, sirnilarly, in the case Me Islamrhad Electic SuDDlv vs. The aonellate Tribunal' 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 rnust be discovered from t}e words used. If the words userl arc capable of one consfuction only, then it would not be open to thc courts to adopt any other hypothetical construction, II' the words o[ 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 conhary view, rather than implementing the same witlout any hesitation.

13.[,ast but not dre 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 I'ace 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 nanre of the Provincial Govemrnent but practically and physically is in possession of the petitioners without any interference and, thus, dre impugned attachment being not yet been finalized as required under the law, therefore, liable to be set asidc. Copy of rnutation No. 3348 attested in May 2003 has been annexed with this petition which reflects that from Khasra No. 1048 rneasuring 42 Kanal 19 Marla an area measuring lKanal l3 V2 Marla has been tr;ursf'erred to Provincial Goverrunen! fbr which a report has been submitted by the Pawari Halqa to the eflect that dre said area is constructed and is in possession of Gul Muharnmad s/o Muharnrnad Azim.

14.Thus, considering the above discussion, it is concluded and reallirmed that attachment includes taking physical possession and other rnetltods as specified in subsection (4) of '(zozs scun rste)

Section 88 CrPC. Therefbre, the lirnitation period under Section 89 CrPC <:an only be invoked alier the complete attaclment of the irmnovable properry. In the present case, since the process of complete attachment was not carried out, the question of Iimitation <loes not arise in the given circumstances.

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

Announced on 21.05.2025.

Releascd on 1407.2025.

'M Zafti.l CS'

JUDGE

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(DB. Hou'ble Mr. Justi:e Muhammad Naeem Amar & Hon'ble Mr. Justice Dr. Khurshid lqbal)