P L D 1962 (W (PLP)

Date of hearing : 22nd November 1961. This is a revision petition challenging the order of the Sessions Judge, Gujranwala, dated the 29th of August 1961, rejecting an appeal against the order of Magistrate 1st Class, Gujranwala, dated the 30th June 1961, by which the learned trial Magistrate, 'while convicting the accused for an offence under section 6/7 ref the Wes: Pakistan Foodstuffs (Control) Act, 1956, ordered the confiscation of the truck in which the rice was being transported in violation of section 3 of the West Pakistan Paddy and Rice (Control) Order, 1958. The learned trial Magistrate, after convicting the accused for the illegal transpor tation of rice, remarked as follows about the confiscation of the "The truck, rice and onions shall be confiscated to the Provincial Government." There is nothing in this order to indicate whether the order was passed under section 6 (2) of the West Pakistan Foodstuffs (Control) Act, 1958, or under section 517 (1) of the Criminal Procedure Code. This order was challenged by Said Khan claiming the ownership of the truck on the ground that the learned trial Magistrate had not called upon him at any stage w show cause against the forfeiture and that this was necessary according to the provisions contained in section 6 (2) of the West Pakistan Foodstuffs (Control) Act, 1958. The learned Sessions Judge by a short order dismissed this appeal, on the ground that the order had been passed under section 517 (1) Cr. P. Code.

2. I am unable to find anything on the record of this case which would lead to the inference that the order had been passed under section 517 (1), Criminal Procedure Code. On the contrary, it is reasonable to suppose that the order was passed under the very Act under which the accused were convicted. The order of confiscation of the truck passed by the Trial Magistrate is illegal in any case. If it had been passed under section 6 (21 of the West Pakistan Foodstuffs (Control) Act, 1958, it has been passed without any material on the record. Section 6 (2) runs as follows: ‑ "The owner of any vessel, conveyance or animal carrying any property in respect of which an order under section 3 is contravened, shall, if the carrying is part of the transaction involving the contravention and if he knew or had reason to believe that the contravention was being committed, be deemed to have contravened the order, and, in addition to the punishment to which he is liable under subsection (1), the vessel, conveyance, or animal shall when the order provides for forfeiture of the property in respect of which the order is contravened, be forfeited to Government." It is clear that unless there is evidence to prove that the owner of the truck knew or had reason to believe that a contravention was being committed the truck could not have been ordered to be forfeited. If there was evidence to that effect, not only the truck could have been confiscated but even the owner was liable for punishment under subsection (1) of section

6. There is not an iota of evidence to prove that the owner knew or had reason to believe that his truck was being used in contravention of the provisions of section 3 of the Act. It is the duty of the prosecution In case they desire the confiscation of the conveyance, that It should lead evidence to prove that the owner knew or had reason to believe that the contravention of an order under section 3 was being committed, failing which the Court will not be justified in passing an order of forfeiture of the conveyance. In case the order of the Magistrate was on under section 517 (1), Criminal Procedure Code, as interpreted by the learned Sessions Judge, it would be illegal, as no order could have beer! passed under the general provisions of the Criminal Procedure when there was specific provision in the special Act. Recourse cannot be taken to the general provisions as contained in the Criminal Procedure Code when there are specific provision in special Act for the forfeiture of the property used in the commission of an offence. There are other special Acts as well which specifically provide for the confiscation of a conveyance used for the commission of an offence. Section 11 of the Opium Act, 1878, provides for the confiscation of the animals and conveyances used In carrying) contraband opium. It would be illegal for a Court in a case under the Opium Act to order the confiscation under section 51 7 (1) of the Criminal Procedure Code. The order passed by the learned Sessions Judge, therefore, deserves to beg set aside, as no order of confiscation of the truck, could have been passed under section 5' 7 (1) of the Criminal Procedure Code. I would, therefore., accept this revision petition and order the restoration of the truck to the owner. The learned trial Magistrate will deliver it, back to Said Khan or any other person whosoever proves himself to be the owner to his satisfaction,

3. I would like to add for the guidance of the investigating agency that If it Is proved to their satisfaction that the owner of any vessel, conveyance or animal carrying any property in respect of which an order under section 3 Is contravened, if the carrying Is part of the transaction involving the contravention, knew or had reason to believe that the contravention was being committed, they would challan him along with the persons actually engaged in carrying the property. In case this is proved to the satisfaction of the trial Court the owner will be liable to punishment under section 6 (1) and the vessel, conveyance or the animal shall also be liable to confiscation. S. B. Petition accepted.