2009 PLP 131 (MLD)

MUHAMMAD ALAM KHAN, J.

Bakhtiar appellant has filed this criminal appeal against Gul Shad and others under the provision of section 48 Control of Narcotic Substances Act, 1997 challenging the judgment of the learned Additional Sessions Judge/Judge Special Court-XII, Peshawar, dated 28-9-2007 vide which he convicted Gul Shad accused/respondent No.1 and sentenced him to two years' S.I. and a fine of Rs.6000 or in default thereof to further undergo simple imprisonment for one month. Benefit of section 382-B, Cr.P.C. was extended to him. The case property i.e. the Charas and Datsun bearing No. 6968/FDG, Model 1982 was confiscated to the State.

2. Feeling aggrieved of the impugned judgment to the extent of confiscation of the vehicle in question allegedly involved in the commission of the crime, Bakhtiar appellant has filed this instant appeal.

3. Learned counsel for the appellant submitted that the vehicle in question has not been used in the commission of the offence and the same has no nexus with the crime in question. It was further submitted that the convict Gul Shad was the driver of the vehicle owned by the appellant and the order of its confiscation is not warranted under the law.

4. On the other hand Mr. Khizar Hayat, Advocate appearing for the State submitted that during the trial before the learned trial Court neither the appellant nor the convict Gul Shad had claimed the vehicle in question and thus, the confiscation order passed by the trial Court is strictly in accordance with law which calls for no interference.

5. We have given our anxious consideration to the submissions made by the learned counsel and have gone through the record of the case with their able assistance. Without dilating upon the question of ownership of the vehicle, suffice it to observe that before confiscation of the vehicle the issuance of notice to the appellant as envisaged under the provision of section 33. (proviso) of the Control of Narcotic Substances Act, 1997 was mandatory as the appellant was claiming the ownership of the said vehicle. Subsection (2) of section 32 of the Act ibid also permits the confiscation of the vehicle only when it is proved that the owner had the knowledge that the offence was being committed and such point has to be determined in accordance with law after issuing of a notice to the owner of the vehicle and affording a chance of hearing to him as held in the judgment handed down in the case of "Muhammad Amin v. The State" reported in (PLD 2004 Karachi 482) and an unreported judgment of this Court in Quashment Petition No.32 of 2006 titled "State through Director ANF Peshawar v. Abdul Qadeer Paracha" decided on 27-3-2008. Admittedly no notice as envisaged under the Act ibid was given to the appellant and thus, the order of confiscation of the vehicle is liable to be struck down on this sole ground.

6. In view of the facts and circumstances of the case narrated above, we accept this appeal, set aside the impugned judgment of the trial Court, dated 28-9-2007 to the extent of confiscation of the vehicle in question only and remand the case to the trial Court with the direction to proceed with the same strictly in accordance with law. Parties are directed to appear before the trial Court on 3-9-2008. H.B.T./164/P Case remanded.