1998 PLP 700 (MLD)

Petitioner has assailed an order dated 10-5-1997 passed by Magistrate 1st Class section 30, Cr.P.C. Attock whereby he has confiscated to the State Truck No. 4653/PRD which was involved in case Crime No. 48 3 dated 29-5-1994 Police Station Attock Khurd.

2. The case was registered under Article 3/4 Prohibition (Enforcement of Hadd) Order, 1979, hereinafter referred to as the said Order, against accused Gulraiz Khan and Alam Zeb who were intercepted at Attock Khurd while coming from Peshawar in the said truck and they were found in possession, inter alia, of 35 Kgs of Charas. Both the accused admitted the charge in the Court of Civil Judge/Magistrate 1st Class, Attock and were convicted under both the articles of the said Ordinance vide judgment dated 28-5-1995. The said judgment also adjudicated about the case property which was confiscated to the State.

3. The petitioner impugned the said judgment in a revision petition with the result that the matter was remanded back to the trial Court for fresh decision on the point of confiscation of the said truck. The matter was adjudicated finally through the order dated 10-5-1997 which is impugned before this Court.

4. I have heard the counsel for petitioner and State. Counsel for petitioner has contended that the convicted accused were charged on 12-12-1994 to which they did not plead guilty and the F.I.R. was lodged on 29-5-1994 and before the convicted accused were charged an application for Superdari of the truck was moved on 27-9-1994 which act itself indicates that the owners of the truck were not involved and their bona fides are proved; that the reliance is placed on an unreported case of this Court vide Criminal Appeal No. 144/1 of 1996 (Re: Javed Akhtar v. The State), 1987 SCMR 1274, another unreported case Criminal Revision No. 26/I of 1996 of this Court; that affidavits have been brought on the record to prove the bona fides of the petitioner. The counsel for State on the other hand has contended that petitioner remained silent for about four months after the registration of the case which silence is not explained; that reliance has been placed on 1992 P Cr. L J 1296, PLD 1987 SC 288.

5. Since this petition relates to Articles 14 and 15 of the said Order and the proper interpretation thereof, therefore, it shall be in the fitness of things to reproduce both these Articles in toto:

14. Things liable to confiscation.--In any case in which an offence has been committed under this Order, the intoxicant, still, utensil, implement or apparatus in respect or by means of which the offence has been committed shall be liable to confiscation alongwith the receptacles, packages, coverings, animals, vessels, carts or other vehicles used to hold or carry the same.

15. Confiscation how ordered.--(1) In any case involving anything liable to confiscation under this Order, the Court deciding the case may order such confiscation despite the acquittal of the person charged. (2) When an offence under this Order has been committed but the offender is not known or cannot be found, or when anything liable to confiscation under this Order, and not in the possession of any person cannot be satisfactorily accounted for the case shall be inquired into and determined by the Collector or other Prohibition Officer Incharge of the District or any other officer authorised by the Provincial Government in this behalf, who may order such confiscation: Provided that no such order shall be until the expiration of fifteen days from the date of seizure of the things intended to be confiscated or without hearing the persons, if any, claiming any right thereto, and evidence, if any, which they produce in support of their claims. The learned counsel for the appellant has relied on proviso to sub -Article (2) of Article 15 of the said Ordinance as reproduced above and in the circumstances of the present case. At the outset, it is clear from the convicting judgment dated 28-5-1995 that before the accused/convicted had admitted the charge which was framed against them and even after that they had not taken the name of the petitioner or any other person in the ownership of the truck under consideration to be their privy or accomplice. In the impugned order dated 10-5-1997 it has been clarified that a show-cause notice was given to the petitioner on 18-3-1997 and this way requirements of the proviso to Sub -Article 2 to Article 15 of the said Ordinance was satisfied, and the said notice was properly replied, yet the learned trial Court in its impugned order has given its finding that the petitioner has not been able to show any cause as to why truck should not be confiscated as the same was already used in commission of offence by the accused who was driver/employee of the petitioner. In the presence of the following rulings of the superior Courts as well as this Court, and the circumstances of the present case, I do not find any force into findings of the learned trial Court of Magistrate Section 30, Attock in its impugned order dated 10-5-1997. Heading (b) of 1987 SCMR 1274 reads:--

14. Confiscation of car in which heroin was being transported

Order of Trial Court clearly gave impression that the liability to confiscation was one made the basis for order of confiscation of the vehicle--Such an order could not be passed without further examining the propriety and justification for such an order particularly so, when all the other occupants of the vehicle except one were positively found to be neither in possession of the objectionable article nor involved in. its transportation

Where one passenger in a vehicle secretly carries narcotics without involvement, direct or indirect, of others either present in the vehicle or in its control and charge, order of confiscation of such vehicle would manifestly be inconsistent. Para. 10 of an unreported judgment of a D.B. of this Court in Criminal' Appeal No. 144/1 of 1996 (laved Akhtar v. The State) linked with Criminal Appeal No. 161/1 of 1996 (Badar-ul-Hassan v. The State) linked further with Criminal Revision No. 26/1 of 1996 (Muhammad Yousaf v. The State) reads as under:-- "We have also considered the matter of confiscation of truck and in view of the abovementioned discussion we have come to the conclusion that confiscation of the truck in question in circumstances is not proper as neither the ownership of the truck was ascertained nor any opportunity was provided to the petitioner to explain his position. It appears from the record that the petitioner made an application before the Resident Magistrate for 'Superdari' of the same truck but that was dismissed by him on 15-5-1995. Thereafter he filed a revision petition and it was also dismissed on 6-7-1995 by the learned Additional Sessions Judge. Thus it appears that the petitioner has been all along claiming ownership of the truck and his non-participation in the occurrence. Therefore, he could not be penalised for an act to which hi was neither privy not accessory. There is nothing on record to show that any one else including the appellants/accused ever claimed the ownership of the truck resultantly, the revision petition is also allowed. The truck in question shall, therefore, be restored to the petitioner Muhammad Yousaf son of Muhammad Israfil, in accordance with law, on 'Superdari' till the expiry of the period of appeal/revision. " So far as the reliance of the learned counsel of the State on the principles laid in 1992 P Cr. L J 1296 (Amir Aman Ullah Khan v. Raza Muhammad etc.) is concerned, the facts of the said case are totally distinguishable from the present case. At para number 7 in placentium C following passage is clarifying the distinction between the two cases. "It is also pertinent to note that the said offender/convict, namely, Raza Muhammad has specifically claimed the ownership of the truck for having been purchased by him on instalments basis. The petitioner was well in the know of the proceedings and did not come forward at all during all these two years, claiming ownership." In the present case, Muhammad Sher the petitioner was not sleeping and it is clear from the record that before the charge was framed against the accused/convicted, he had moved an application for the Superdari under consideration for being himself the owner. Although in the papers of registration, he is not appearing as the owner, but this matter of ownership was not at all enquired into by the Trial Court. In his first application dated 27-9-1994 para. No. 3 is reproduced as under: It is clear then that in the very first application the petitioner had clarified that the registration was in the name of Arbab Khan and was not yet transferred in his name as he had purchased the said truck on instalments and had yet not completed the instalments. It was incumbent then upon the trial Court to have called for Arbab Khan or any other witness in evidence of what was being claimed by the petitioner. This was not done. On 8-10-1997 Arbab Khan s/o Baz Mir himself appeared in this Court alongwith his original N.I.C., a copy of which had been taken on the record which numbers 159-85-013925. The petitioner himself was also present. Arbab Khan, in whose name the original registration book concerning the truck under consideration was recovered at the time of interception of the truck, has filed an affidavit properly sworn in on the stamp papers before the Oath Commissioner on 6-10-1997 and before two witnesses one of whom is Ch. Muhammad Akhtar Advocate, Attock and is to the effect that he had sold Truck Ford No. PRD 4653 to the petitioner for a consideration of Rs. 6,00,000 on 8-7-1993 out of which he had received Rs. 1,00,000 immediately and the remaining amount was to be received by him at the rate of Rs. 5,000 per month. He has also deposed in the said affidavit that by 18-7-1997, he had further received instalments up to the extent of Rs. 1,65,

970. This way he had received total amount of Rs. 2,65,970 and the remaining amount was still payable by the petitioner to the owner. In view of this situation and case-law as cited above, I do not find that either Arbab Khan son of Baz Mir or the present petitioner Muhammad Sher are, in any way, involved in the crime committed by Gul Raiz and Alain Zeb. Since the petitioner Muhammad Sher son of Abdul Akbar, Arbab Afridi, resident of Sakai Shah Temer Girah District Dir is not involved in the offence, it shall not B be in the interest of justice to -confiscate the truck belonging to him although used for commission of the crime by his employees without his permission or had the knowledge of the commission of the crime. He had come forward before the culprits were charged and had lodged his claims regarding the truck under consideration but his claims Were not properly dealt with. I, therefore, hereby, the impugned order dated 10-5-1997 and do hereby direct that the handed over to the petitioner set aside vehicle Truck No. PRD 4653 may be released and handed over to the petitioner Muhammad Sher immediately. H.B.T./1177/F.SC Revision allowed.