' KHALIL-UR-REHMAN, RAMDAY, 1.--- Being accused of committing the murder of one Gulai on 12-2- 1950 in village Hari Chand, one Mehrban was sought to be arrested, who, however, absconded. He surrendered himself to police custody on 7-7-1953 and was thereafter released on bail. On the commencement of the trial before the learned Sessions Judge at Peshawar the said Mehrban accused was summoned who, however, disappeared. Proceedings were initiated against him under sections 87 and 88 of the Cr.P.C. As a result whereof a direction was made to the Political Agent of Malakand on 1-9-1954 to attach the immovable property of the said Mehrban accused situated in village Kooper, Sakhakot area in Malakand Agency whereupon a piece of land measuring 166 Kanals, 3 Marlas was attached and subsequently, sold through an open auction.
This piece of land was purchased by Umar Gul, Hazrat Haque and Said Rehman in the said open auction in the year 1957 who were also put into possession of the same.
2. It may be added that the said Mehrban accused was finally rearrested on 6-6-1957 whereafter he was tried, sentenced to suffer death and was hanged.
3. The petitioners before us are the sons and heirs of the said Mehrban convict who had filed a suit in the Court of the learned Senior Civil Judge, Malakand in February, 1990 seeking a declaration that they were the owners in possession of the above-mentioned auctioned land: that the auction of the said land was illegal and that the auction-purchasers who were predecessor-in-interest of the respondents before us had no connection with the same.
4. The said suit was dismissed by the learned trial Judge on 24-2-1992 and similar was the fate met by the appeal filed by them which was dismissed on 8-6-1992. The plaintiffs/petitioners thus approached the Peshawar High Court through Civil Revision No,350 of 1992 which was, however, allowed as a consequence whereof the matter was remanded back to the learned trial Court for recording additionalevidence vis-a-vis a new issue framed and then decide the matter afresh in accordance with law.
5. This revisional judgment of the learned High Court was questioned before this Court through Civil Appeal No,1654 of 1997 which appeal was disposed of by this Court on 8-12-1997 with the consent of the parties as a result whereof the matter was sent back to the learned High Court for deciding the lis on merits after summoning whatever additional record was required to be examined for disposal of the revision petition before it. After remand, the learned High Court dismissed the said petition through a judgment, dated 22-4-2002.
6. Hence this petition.
7. Learned counsel for the parties have been heard at some length and we have also perused the record in the light of the submission made before us.
8. As has been noticed above the property in question had been sold through an open auction under the order of the learned Sessions Judge of Peshawar in pursuance of the powers vested in him under section 88 of the Cr.P.C. This auction had taken place in the year 1957 i.e, almost a quarter of a century before the filing of the suit in question by the successors-in-interest of Mehrban convict. The learned counsel for the petitioners who were heirs of the said Mehrban could not offer any reasonable explanation for this more than inordinate delay in the filing of the suit when it had been admitted by the petitioners themselves before the learned Trial Court that they were aware of the land in question having been auctioned and the same having been purchased by the predecessors-in-interest of the present respondents.
9. It was rightly pointed out by the learned counsel for the respondents that the provisions contained in sections 87 to 89 Cr.P.C. B were a complete code about the matters relating to the attachment and sale of the. Property belonging to a proclaimed person and the restoration thereof. Mehrban convict did initiate proceedings for the restoration of the attached property after his arrest in the year 1957 which prayer was declined by the then Judicial Commissioner of N.-W.F.P.
And no further proceedings were taken by any one to pursue the said matter before any higher forum and this matter had thus attained finality. Needless to add that as per provisions of section 89, Cr.P.C. Any attached property which was sold under section 88 of the Cr.P.C. Was not liable for restoration and even if the proclaimed offender had satisfied the competent Court about his ignorance regarding his requirement before a Court of law then only the sale proceeds of the property in question could be offered to him after deducting expenses incurred in the auction of the same which clearly established that the auction or sale of such a property once made was final and could not be undone even when the competent Court was satisfied that the disappearance of the owner of the said property was not intentional.
10. The only legal issue raised before us by the learned counsel for the petitioners was that the property in question was situated in the Federally Administered Tribal Areas and the provisions of Cr.P.C. Did not extend to the said territory. This question was examined by the learned High Court and rightly answered in the impugned judgment and no further answer needs to be given to the said submission. We may, however, add that the provisions of section 88, Cr.P.C. Did not exempt the property situated in the Federally Administered Tribal Areas from the operation of the provisions of the said section 88, Cr.P.C. and more so when the Federally Administered Tribal Areas were a part and parcel of the territories comprising the State of Pakistan in terms of Article 1(1) of the Constitution.
11. Thus, looking at the matter from whatever angle i.e, be it a question of limitation; be it a question of the finality attached to the auction/sale under section 88, Cr.P.C. Or the fact that the one who had purchased the property in an auction held under the orders of a competent Court were bona fide purchasers of the same for valuable consideration, no exception could be taken to the consistent findings of the three learned Courts which are being questioned before us.
12. This petition is, therefore, dismissed. .