Sherzada Vs State

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT, MINGORA BENCH

(DAR-UL-QAZA), SWAT

(Judicial Department)

W.P No. 551/2013

Date of hearing:.......... 11.9.2014

Petitioner: (Sherzada & others) by Mr. S. fayaz Muhammad Qazi, Advocate.

Respondent: ( The State & others) by Mr. Sabir Shah

AAG

ABDUL LATIF KHAN, J.- Accused Muhammad Zeb, Awal Zeb, Bakhtram Zeb, Saeed Zeb sons of Amir Zada, Mehar Zeb son of Sher Zada, Jamal Khan, Khaidar Khan and Mukhtiar Khan sons of Khaidar Khan were charged in criminal case registered, vide FIR No. 279 dated 10.9.2010 under section 302/324/109/148/149 PPC at Police Station, Gandigar, and the local police during house search on 12.9.2010 and 14.9.2010 took into possession all the moveable household articles vide memo Ex. PW 1/1.

The petitioners, Sherzada, Amir Zada, the fathers of accused, and Mst. Najma wife of Muhammad Zeb, accused, submitted their objections petitions before Judicial Magistrate, which were accepted vide order dated 21.4.2011 and issued directions to police to return the entire moveable property to the petitioners and further directed the Superintendent of Police, Investigation Wing, to take legal action against concerned ASI. The District Public Prosecutor, challenged the order of Judicial Magistrate in criminal revision, which was allowed by learned Additional Sessions Judge vide order dated 13.7.2011 and all the objections petition were remanded back to the Judicial Magistrate for decision afresh after making inquiry into it.

2.After remand, the Judicial Magistrate, recorded pro and contra evidence in the petitions and after *Zafral ktk*

hearing the parties dismissed all the objections petition vide order dated 10.6.2013. The petitioners filed appeals against dismissal of their objection petitions, which were also dismissed by learned Additional Sessions Judge, Dir Upper, vide consolidated judgment dated 6.12.2013, hence, the present writ petition.

3.Arguments heard and file perused.

4.The provisions of Sections 87, 88 and 89 provide a complete mechanism relating to the attachment and sale of the movable and immovable property belonging to a proclaimed person and its restoration. Section 87 provides issuance of proclamation notice against an accused person, avoiding his lawful arrest, requiring him to appear at a specified place and at a specified time not less than thirty (30) days from the date of its publication.

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Section 88 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.

Sub-section 2 of Section 88 empowers the Court to attach property within or outside the District in which it is made, sub-section (3) provides procedure for property ordered to be attached if it is debt or movable property, sub-section

(4)give course if the property intended to be attached is immovable while sub-section (5) describes the method if the property to be attached is consisting of livestock or is of a perishable nature whereas sub-section (6) explain the powers, duties and liabilities of the receiver. Sub-section (6-A) to (6-D) were inserted by the Code of Criminal Procedure Code (Amendment) Act, 1923 which provides rules for the objections of those persons other than the proclaimed person, on the ground that the claimant or *Zafral ktk*

objector has an interest in such property, and that such interest is not liable to attachment under this Section.

According to sub-section (6-A) to (6-D) the objections are to be preferred within six months from the date of attachment to the same Court issuing the order of attachment and the Court is authorized to make inquiry into such claim or objections and the person whose claim is disallowed, is permitted to institute a suit to establish his right within a period of one year from the date of order of disallowing his claim or objection. Section 89 Cr.P.C provides period of limitation for filing of application for restoration of the attached property. The object of Section 88 Cr.P.C is not to punish but to compel an accused person to appear in obedience to a warrant issued by Criminal Courts.

5.We have perused the record and found that all *Zafral ktk*

the proceedings of Section 88 Cr.P.C from top to bottom have been carried out by the police without order of the Judicial Magistrate, which is not the mandate of law. Fazal Rabi Khan, ASI, appeared as PW-1 who deposed in his examination in chief that after registration of case, investigation was handed over to him, he visited the spot, during house search took into possession all the movable property/household items for safe custody, vide memo ExPW 1/1 while inventory of articles is ExPW 1/2 and, thereafter, drafted complaint under section 88 Cr.P.C. In cross examination he deposed that he took into possession the articles on 14.9.2010 while warrant of arrest was obtained on 12.9.2010 whereas proclamations notices were issued on 14.9.2010 which were executed on 17.9.2010. He admitted that he had obtained no order from the competent Court relating to the household articles before taking it into *Zafral ktk*

possession. He further admitted that the Court has not issued formal order regarding attachment of property and all the proceedings were conducted by him of his own. The recovery memos, vide which all the household items were taken into possession, bears the date of 12 & 14.9.2011 and further reveals that as no one was present in the house of accused, therefore, the articles were taken into possession in safe custody in order to save them from any damage.

6.Formal order of Court relating to attachment of any property belonging to proclaimed person is a sine qua non and any proceedings relating to attachment of property of a proclaimed person under section 88 Cr.P.C without formal order of the Court are illegal. Specimen of order of attachment to compel the appearance of a person accused in a criminal case has been given in Schedule V of Criminal procedure Code and warrant of attachment has to *Zafral ktk*

be addressed in the name of the person or persons who is or are to execute the warrant. The warrant of attachment must be signed by the Magistrate under seal of the Court but strange enough to observe there is no formal order of the Court. Sections 88 and Forms of warrant in Schedule V of Criminal Procedure Code suggestive of the fact that the person to whom warrant is addressed has to return the same after making endorsement thereon certifying the manner of its execution but there is no such formal order/warrant of Magistrate under section 88 Cr.P.C, which vitiate the entire proceedings carried out by the police official of his own.

7.We have also noted that the house-hold articles were taken into possession on 12.9.2011 and 14.9.2011 while proclamation notices for appearance of accused were issued on 14.9.2011 but the same were *Zafral ktk*

allegedly executed on 17.9.2014, while complaint under section 88 Cr.P.C was drafted on 26.10.2010, meaning thereby, the articles were taken into possession before issuance of proclamation notices which is also not in accordance with law. When an accused person is avoiding his appearance, then he is to be summoned through warrant of arrest and if any Court is satisfied after taking evidence that the person against whom a warrant has been issued has absconded or concealing himself and such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation. Under section 88 (1) Cr.P.C 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 *Zafral ktk*

proclaimed person but in the case in hand the articles were taken into possession before the issuance of proclamation notices. No doubt, under section 88 Cr.P.C the Court is authorized to issue order of attachment at any time but after issuance of proclamation notice as under section 88 Cr.P.C the property is to be attached of the proclaimed person

6.Quite apart from the above, the court is empowered to attach any property belonging to a proclaimed person subject to the right of any person to object that the property belongs to him. Admittedly, the articles were taken into possession from the houses where other brother, sisters, and parents of the absconder were residing at the relevant time. Sher Zada appeared as DW-1 who deposed that his two sons, namely, Anwar Zeb and Muhtaram Zeb are abroad in connection with earning their *Zafral ktk*

livelihood and one of his sons, namely, Mehar Zeb has falsely been involved in the case. He deposed that the articles mentioned in the list marked as ExPW 1/1 are owned by him as well as his sons, who are abroad while some of the articles are dowry articles of his daughter in law. Zafar Khan appeared as DW-2 and he deposed that Mehter zeb is the son of Sherzada, petitioner, who is unmarried. He deposed that the articles taken into possession by the police are owned by Sherzada. He deposed that two other sons of Sherzada were abroad and the police had taken away the articles which were owned by his daughter, who is wife of Anwarzeb, the son of Sher Zada. Zahid Zada appeared as DW-3, he too supported the claim of the petitioners, therefore, the findings of the courts below are not in accordance with the evidence available on record.

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For the aforesaid reasons, the instant writ petition is accepted, the impugned orders of courts below are set aside and the subject items be returned to the petitioners forthwith if not already returned to them in the light of order of Judicial Magistrate on 21.4.2011.

Announced.

Dt:11.9.2014. JUDGE

JUDGE

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