2000 PLP 799 (MLD)

Date of hearing: 1st December, 1999. The petitioner was sent‑up for trial under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order IV of 1979 read with section 9‑C of the Control of Narcotic Substances Ordinance, 1995 vide a case F.I.R. No.62 of 1996 Police Station Vehoa. He was tried by learned Sessions Judge, D.G. Khan who vide his Judgment, dated 16‑6‑1998 acquitted of the said charges. However, while recording the said acquittal, he made * the following observations regarding the "case property" :‑‑ "The case property, if any, is confiscated in favour of the State and may be destroyed in accordance with law after the expiry of the period of appeal/revision". The facts of the case are that as per the contents of F. I. R., on 6‑9‑1996 while Muhammad Zafar Inspector/S.H.O., Police Station Vehoa in the company of some subordinates was on patrol duty, the petitioner came near Muslimabad More on a motorcycle bearing registration No.MNP 3754. He was intercepted and on his search one k.g. of opium and one k.g. of Charas from the side cover of the motorcyle was recovered. I may note here that the Sessions Judge was impressed by the following circumstances while acquitting the petitioner:‑‑ (i) The Charas and Opium allegedly recovered from the petitioner while he was riding the motorycle, was not produced; and (ii) At the time of occurrence, according to F.I.R., the petitioner was riding the motorcycle No.MNP‑3754 whereas the motorcycle produced in the course of evidence bore registration No:MNP‑3755.

2. To my mind, the words "if any", in the closing part of the impugned order dealing with the case property are very important. For all intents and purposes reference to case property is reference to the narcotics allegedly recovered from the petitioner. I have already stated above that these narcotics were not produced in evidence. It was the destruction of the said narcotics which was in the mind of learned Sessions Judge, D.G. Khan while passing the said order. There appears no worldly reasons as to why the learned Sessions Judge would have ordered the destruction of the Motorcycle.

3. It is an admitted position that the motorcycle was recovered from the custody of the petitioner. He has sought the return of the motorcycle No : MNP‑3754, the Registration Book and his driving licence. It is apparent on the record that while disallowing the application of the petitioner for release of the said property and documents, the learned Sessions Judge was not aware of the contents of his own Judgment. It has already been reported that no appeal or revision has been filed by the State against the Judgment of acquittal, dated 16‑6‑1998.

4. In this view of the matter, I find that the impugned order, dated 16‑6‑1998 pertaining to the destruction of the motorcycle as also, dated 29‑7‑1998 pertaining to dismissal of the application for release of the Motorcycle, Registration Book and the licence suffer from illegality as well impropriety. Consequently this Criminal Revision is allowed. The order, dated 29‑7‑1998 is set aside and the application dated 23‑6‑1998 of the petitioner is allowed. The result would be that the Motorcycle No.MNP‑3754, Registration Book and the licence taken over from the petitioner vide a recovery memo. Exh.P.B. shall be released to him in accordance with law. H.B.T./M‑1302/L Application allowed.