1999 PLP 2468 (MLD)

On 29-4-1994 Muhammad Basharat Kayani A.S.I. who was present on duty of Checkpost Attock Khurd alongwith other police officials for checking of unauthorised arms and narcotics. At about 7-45 a.m. a Taxi Car No.PRP 5630 reached from Peshawar side. The said taxi was being driven by Muhammad Ibrahim respondent No.2 with one Farooq sitting beside him on the front seat. The said taxi was searched through Muhammad Arshad, H.C. who covered a packet of heroin wrapped in plastic envelope and then sealed in cloth from secret box of driver s seat. A Sony TV made in Japan was also recovered from the dicky of the same taxi. On further personal search, heroin was recovered from left side pocket of respondent Muhammad Ibrahim. The said contraband was weighed and it was found that the contraband recovered from the taxi was 500 grams and that recovered from his personal search was 110 grams. Samples' were taken from the same for chemical analysis and sealed into a parcel. The remaining contraband was also sealed into separate parcels. Key of the said car was also taken into possession. A sum of Rs.27,000, National Identity Card and arms license were also recovered from respondent Muhammad Ibrahim and taken into possession. After completion of necessary formalities Muhammad Ibrahim as well as Farooq sitting with him on the front seat were challaned to face the trial. On conclusion of the trial while said Farooq was acquitted from the charges, Muhammad Ibrahim, herein respondent No.2, was convicted under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 and sentenced to undergo R.I. for four years and to pay a fine of Rs.5,000 or in default thereof further six months S.I. with the benefit of section 382-B, Cr.P.C. The aforementioned taxi car and key were confiscated to the State.

4. Muhammad Ibrahim preferred an appeal against the said older. Vide judgment, dated 24-4-1996 his appeal was accepted and the order, dated 22-1-1996 passed by the learned Additional Sessions Judge, Attock, was set aside and he was acquitted of the charge. However, no order in respect of confiscation of the said taxi car was passed. M/s Habib Bank Limited, City Branch, Peshawar, made an application for release of the said car which was dismissed by the learned Additional Sessions Judge, Attock, vide his order, dated 15-9-1996. The said order reads as under: -- "Arguments have been heard and record perused. This is an application for the release of Car. No.PRP-5630. Since I have convicted and sentenced accused Ibrahim and who was acquitted in appeal from the Honourable Federal Shariat Court of Pakistan vide judgment, dated 24-4-1996. The abovementioned car was confiscated in favour of the 'State vide judgment passed by this Court on 22-1-1996. This application anjounts to review of the same which is not provided in law. Hence, this application is hereby dismissed being un-maintainable for want of jurisdiction. " Hence, this revision petition.

5. I have heard the learned counsel for the parties and have perused the record with their assistance. I have also heard Muhammad Ibrahim respondent No.2 and have gone through the contents of this application. The learned counsel for the petitioner contended that the said taxi car belongs to the petitioner and it was duly registered in their names in the record of Excise and Taxation Motor Registration Authority, Peshawar and in pursuance of the Prime Minister's Scheme for public transport was delivered on their financing to Muhammad Ibrahim son of Ghiyas-ud-Din (respondent No.2). She further submitted that as per agreement the said car was property of the Bank duly registered in the name of M/s. Habib Bank Limited and Muhammad Ibrahim but the original registration/documents remained in the possession of the Bank She contended that on appeal said Muhammad Ibrahim has been acquitted of the charges, however, an application for release of the said taxi car has been turned down by the learned trial Court. She further submitted that prior to the confiscation order the petitioner was not given any notice and they were deprived of the property without furnishing any adequate opportunity of putting forward their point of view. She also submitted that no nexus has been even alleged between the actual owner and the offence.

6. I have scrutinised the material on record and have found that ownership of the said taxi car by M/s. Habib Bank Limited is admitted and undisputed. It is established from the record that admitedly M/s. Habib Bank Limited is, in fact, owner of said vehicle and they had provided finance to Muhammad Ibrahim respondent No.2 to purchase the same under the Prime Minister's scheme for public transport. An agreement was executed to this effect between M/s. Habib Bank Limited and Muhammad Ibrahim respondent No.2. An attested copy of the same has been placed on record. It also appears from the record that while confiscating the same no notice was issued to M/s. Habib Bank Limited nor were they impleaded as a party. There is also neither any allegation nor any proof to establish the nexus of M/s. Habib Bank Limited with the commission of offence allegedly committed by respondent No.2 on 29-9-1994. Since confiscation of the said vehicle is, in fact, deprivation of M/s. Habib Bank Limited of their property there is a great deal of force in the reasoning that confiscation of the same without giving any notice to show cause or without furnishing any other opportunity of putting forward their point of view, the order in respect of confiscation of the vehicle, in circumstances, is against the established principles exercised for administration of natural justice as no one can be condemned or deprived of one's property without notice and without providing the opportunity to be heard. 1t may also be pertinent to mention that it also appears from the record that respondent No.2 has paid a sum of about Rs.73,000 as instalments to purchase the said taxi. No doubt, there is allegation that the said taxi was used in the commission of offence under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979, however, it is noteworthy to point out that on appeal the said respondent has been acquitted of the charge by this Court on 24-4-1996. From this point of view also confiscation of the said vehicle may not be justified. The said respondent No.2 has made an application which is placed on record. The contents of that application read as under: - "(i) That the petitioner/respondent was impleaded as a party to the present proceedings on the direction of this Honourable Court. (ii) That the petitioner had purchased the Car in Question No-PRP-5630 from Habibi Bank to be used as a Taxi cinder the Yellow Cab loan scheme. (iii) That the petitioner/respondent has, admittedly, defaulted in making the repayments according to the agreed schedule because of the rigours of the trial which resulted in my final acquittal by this Honourable Court. (iv) That the Taxi Car was my only source of livelihood and the petitioner/respondent has a claim to it having paid a sum of over Rs.73,000 towards its loan. (v) That the petitioner/respondent now is entitled to the possession of the Car upon undertaking to repay the outstanding amounts to the Habib Bank in case this Honourable Court decided to give the possession of the car to this appellant/respondent. (vi) That the petitioner further undertaking, as a gesture of his good faith, to deposit an instalment with the Bank one month after the possession of the car and to clear the outstanding instalments by 31st December, 1997, and the balance according to the agreed schedule of payment or to an extended schedule subject to the approval of the Bank concerned. "

7. It is an admitted fact that respondent Muhammad Ibrahim has paid a considerable amount towards the instalment of said taxi Car and was made defaulter by circumstances beyond his control. The said taxi car was already in his use prior to his alleged involvement in the criminal case on 29-9-1994 and it has further remained in police custody since then and being without proper maintenance, it might not be in good running condition and might cause further loss to the petitioner.

8. Keeping in view the aforementioned position, it may be in the interest of the petitioner as well as respondents and in the interest of justice as well to restore the said taxi to the petitioner i.e. M/s. Habib Bank Limited, City Branch, Peshawar who will hand it over to respondent Muhammad Ibrahim and may also enter into a fresh/amended agreement with him who shall undertake to pay the outstanding instalments due to him till the end of this year, on or before 30th December, 1997 and pay the balance thereafter according to the previous agreement executed between him and the petitioner on 8-7-1993.

9. Consequently, this petition is allowed in the above terms. The said taxi car shall be restored to M/s. Habib Bank, City Branch, Peshawar City, Peshawar who will hand it over to respondent Muhammad Ibrahim after effecting a fresh/amended agreement with him as mentioned hereinabove. The revision petition and application of Muhammad Ibrahim are disposed of accordingly. H.B.T./1185/FSC Petition allowed.