P L D 1964 (W (PLP)

Hans Raj v. The Emperor A I R 1934 Lah. 987 ref. Sh. Maqbool Ahmad II for Petitioner. Masood Ahmad Khan for the State. Date of hearing: 10th March 1964. One Abid Hussain is an absconder in a case under section 167 (8) (9) of the Sea and Land Customs Act. The police applied to the Magistrate for issuing a warrant for the arrest of Abid Hussain and also for proceedings being taken against him under sections 87 and 88 of the Criminal Procedure Code. A warrant for his arrest was issued but it came back unserved. The learned Magistrate recorded the statement of the process‑server and ordered on the 27th of August 1962, that proceedings under sections 87 and 88, Criminal Procedure Code, be taken against the petitioner for the 6th of October 1962. A proclamation, as required by section 88, Cr. P. C., was issued by the Court on the 6th of September 1962, but the same was affixed by the process‑server on the 29th of September 1962. In the pro clamation it was directed that Abid Hussain should present himself before the Court within thirty days from the 6th of September 1962. In pursuance of the warrant of attachment the car in dispute was attached on the 21st of September 1962. The petitioner presented an application on the 17th of October 1962, claiming the car as belonging to him. This petition was filed on the 30th of October 1962, because neither the petitioner nor his counsel appeared on that day. Thereafter, the petitioner put in another application on the 25th of September 1963 praying that the car be released as it did not belong to Abid Hussain, the proclaimed offender. This application has been dismissed and this is a revision petition against that order.

2. It has been contended by the learned counsel for the petitioner that since the proclamation was published on the 20th of September 1962 and Abid Hussain was required to present himself within thirty days from the 6th of September 1962, the period of thirty days would start from the date of the publication i.e., the 20th of September 1962. Thus a period of thirty days had not been allowed to Abid Hussain for appearance in Court, consequently, the proclamation, as issued, was illegal and the attachment made under section 88, Cr. P. C. would also be invalid. That, the attachment be declared as Illegal and the property attached be ordered to be released. The learned counsel has cited Multan Singh v. The Emperor (A I R 1919 Lah. 57); Jaldaib Khan v. The Emperor (A I R 1948 Lah. 151) and Paul Singh Santa Singh v. The State (A I R 1955 Pb. 18). In all of these cases, no doubt the attachment was quashed because of there being a defect in the proclamation issued under section 87, Cr. P. C. but in all of these cases the objection was taken by the alleged proclaimed offender himself and his property was in view of the defect in proclamation ordered to be released. In the present case Abid Hussain is still an absconder. Supposing Abid Hussain had appeared within thirty days of the 20th of September 1962, in the Court, he could have availed of this flaw in the proclamation and claimed the release of his property. The learned counsel for the State has cited Hans Raj v. The Emperor (A I R 1934 Lah. 987) and has argued that the defect in the proclamation was curable by the application of section 537, Cr. P. C. in the circumstances of the present case. In the authority cited by the learned counsel for the state it was remarked that since the applicant had not beet, prejudiced by the error or omission in the proclamation the same was curable under section 537, Cr. P. C. The petitioner is not claiming the property on behalf of Abid Hussain but he is claiming the property as his own and the A procedure for such claims is provided in subsection (6‑A) of section 88, Cr. P. C. which prescribes a period of six months for any objections as regards the attachment of any property, on the ground that the objector has an interest in such property and that such interest was not liable to attachment under B section 88, Cr. P. C. The further provision as regards such claims is contained in subsection (6‑D) which provides that in case the claim or objection is disallowed in whole or in part by an order under subsection (6‑A) the petitioner 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 and subject to the result of such a suit the order is conclusive. The first application that was filed by the petitioner, undoubtedly was within limitation but the same was dismissed on the 30th of October 1962. If there was valid reason for the petitioner or his counsel not appearing on the date the petition was dismissed, the petitioner could have moved an application for restoration of the objection petition, and in case sufficient cause was shown the Court would have revived that application and decided it on merits. This course was not adopted. The only other course open to the petitioner was to institute a civil suit within one year of 30th of October 1962. Instead of that he filed a second application on the 25th of September 1963. This application was clearly barred by time and no relief could have been given to the petitioner on this second application. The contention of the learned counsel that the attachment under section 88, Cr. P. C. was illegal could if at all have been pressed into service by means of an application filed under subsection (6‑A) of section 88, Cr. P. C. within a period of six months. Although as I have already remarked the defect in the proclamation would not have helped the petitioner in any manner as he was in no way prejudiced by the defect in the proclamation. So far as the petitioner is concerned, the cause of action arose on the day the car was attached, and he was required to file the objection petition within six months from the date of the attachment. His first application was presented within the prescribed period but it was dismissed in default. The second application was filed beyond limitation and it has been rightly dismissed. There is no merit in this revision petition, which is dismissed. K. B. A. Petition dismissed.