2001 Peshawar 135 (PLP)

KHALIDA RACHID, J.

On 13-7-1999, C.I.A. Police headed by Noor Muhammad Khan, Inspector (respondent No. l) raided the house of the petitioner and took away the domestic articles (detailed in the appended list dated 13-7-1999) on the pretext that the recovered goods were the property of one Muhammad Shafi, co-accused in the theft case.

2. Through the instant petition under Article 199 of the Constitution, Syed Akhtar Hussain has prayed for declaring the recovery of those articles vide Recovery Memo. dated 13-7-1999 as illegal and without lawful authority. The petitioner also prayed for the return of the recovered goods to him since they belonged to him.

3. The brief background of the case is that case F.I.R. No.387 dated 1-7-1999 under section 17(3) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 was registered in Police Station, West Cantt. on the report of one Khawaja Abdus Sami against unknown persons. Later on, one Muhammad Jamal son of Haji Abdul Qadir Khan was arrested. In his statement recorded by the police, he named one Muhammad Shafi to be one of the co-accused. The house of the petitioner, allegedly relative of said Muhammad Shaft, was raided by the Police C.I.A. on the ground that one of the rooms in the house of the petitioner was occupied by said Muhammad Shafi and thus took into possession the entire household articles. The petitioner, a serving Military personnel belonging to Pakistan Navy, when came home on leave and learnt about the incident, submitted an application dated 29-1-2001 to S.S.P., Peshawar for return of the goods in question. The application was turned down by the S.S.P. on the plea that the raid was made and search of the house of the petitioner was conducted under section 88, Cr.P.C. and the goods recovered were case property of F.I.R. No.387 dated 3-7-1999.

4. In the comments, furnished by respondent No. 1 it was also insisted that raid was conducted in pursuance of proceedings under section 88, Cr.P.C., therefore, no illegality has been committed by respondent No. 1.

5. It is very regrettably observed that even senior police officers like S.S.P. of law enforcing agency are not only ignorant but also negligent of law that provision of section 88, Cr.P.C. could be invoked only when proceedings under section 87, Cr.P.C. are completed. For the convenience sake, the relevant provisions (section 87 and section 88, Cr.P.C.) are reproduced as under:-- "Section 87.--(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 punish a written proclamation requiring him sto appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation. (2) The proclamation shall be published as follows:-- (a) It shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides; (b) it shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village; and (c) a copy thereof shall be affixed to some conspicuous part of the Court-house. (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. Section 88.--(1) 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 proclaimed person. (2) Such order shall authorize the attachment of any property belonging to such person within the district in which it is made; and it shall authorize the attachment of any property belonging to such person without such district when endorsed by the District Magistrate ...... within whose district such property is situate. (3) If the property ordered to be attached is a debt or other movable property, the attachment under this section shall be made-- (a) by seizure; or (b) by the appointment of a receiver; or (c) by an order in writing prohibiting the delivery of such property to the proclaimed person or to any one on his behalf; or (d) by all or any two such methods, as the Court thinks fit. (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 Collector of the district in which the land is situate, and in all other cases-- (e) by taking possession; or (f) by the appointment of 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. (5) If the property ordered to be attached consists of livestock or is of a perishable nature, the Court may, if it thinks it expedient, order immediate sale thereof, and in such case the proceeds of the sale shall abide the order of the Court. (6) The powers, duties and liabilities of a receiver appointed under this section shall be the same as those of a receiver appointed under Order XL of the Code of Civil Procedure, 1908. (6-A) If any claim is preferred to, or objection made to the attachment of, any property attached under this section within six months from the date of such attachment, by any person other than the proclaimed person, on the ground that the claimant or objector has an interest in such property, and that such interest is not liable to attachment under this section, the claim or objection shall be inquired into, and may be allowed or disallowed in whole or in part: Provided that any claim preferred or objection made within the period allowed by this subsection may, in the event of the death of the claimant or objector, be continued by his legal representative. (6-B) Claims or objections under subsection (6-A) may be preferred or made in the Court by which the order of attachment is issued or, if claim or objection is in respect of the property attached under an order endorsed by a District Magistrate ... ... in accordance with the provisions of subsection (2), in the Court of such Magistrate. (6-C) Every such claim or objection shall be inquired into by the Court in which it is preferred or made: Provided that, if it is preferred or made in the Court of a District Magistrate ... ... such Magistrate may make it over for disposal to any Magistrate ... ... .. subordinate to him. (6-D) Any person whose claim or objection has been disallowed in whole or in part by an order under subsection (6-A) 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; but subject to the result of such suit, if any, the order shall be conclusive. (6-E) If the proclaimed person appears within the time specified in the proclamation, the Court shall make an order releasing the property from the attachment. (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 trot be sold until the expiration of six months from the date of the attachment and until any claim preferred or objection made under subsection (6-A) has been disposed of under that subsection, unless it 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 to be sold whenever it thinks fit."

6. The perusal of the above provisions makes it clear that the order for the raid, if so required after recording of evidence, could be made by the Court only. In this case, no such order by the Court is available and no such proceedings have been undertaken. The Inspector, C.I.A. wearing police uniform, considering himself above the law, raided the house of the petitioner in total violation of law notwithstanding the knowledge that the petitioner is neither an accused nor proclaimed offender. The said Inspector, C.I.A. was so obsessed of his unfettered powers that he even ignored to~ comply with the provisions of section 103, Cr.P.C. while taking into possession the goods in question from the house of the petitioner. The S.S.P. sitting at the helm of affairs, also dealt with the application in haphazard manner least caring to understand and interpret the law in its right perspective. The police is to serve and guard the interest of the people and not to harass them, just to throw the burden from their shoulders without putting least efforts to investigate the truth.

7. Mr. Fakhr-ul-Islam, learned Law Officer appearing for the State, at the very outset, has very fairly conceded that the act of the Inspector was illegal and without lawful authority and volunteered the return of the goods in question to the petitioner. We extend our appreciation to the learned young lawyer being fair in the matter.

8. In the circumstances, we allow this petition and direct respondent No.1 to immediately return the goods recovered vide recovery memo. dated 13-7-1999 to the petitioner.

9. The D.I.-G. concerned is also directed to take appropriate action against aforesaid officer/official under intimation to this Court by 1-7-2001. N.H.Q./298/P Petition allowed.