1995 P Cr (PLP)

This revision petition has been filed by petitioner Abdul Wahid claiming to be the owner of Vehicle No.7678-QAD which was, according to the judgment, dated 25-4-1994 of the learned Ad hoc Sessions Judge, Quetta, used in the kidnapping of one Mst. Bibiko, subject-matter of the Sessions case State v. Fateh Khan and 5 others. By the said judgment the trial Court convicted the accused in that case and in so far as the vehicle in question is concerned, passed the following orders:-- The Vehicle No.7678-QAD which was used in the kidnapping of Mst. Bibiko is confiscated in favour of the Government. The petitioner has filed this petition under Article 203-DD of the Constitution challenging the said order about the confiscation claiming that the vehicle belongs to him and that in any case a show-cause notice should have been given to him, before an order had been passed about the disposal of the said vehicle. It is also submitted by the learned counsel that during pendency of the trial, the petitioner, Abdul Wahid, had filed an application for the delivery of the vehicle to him on Suprdari and, by order, dated 25-5-190.3 of the trial Court, the application was granted and the vehicle was delivered to the petitioner on Suprdari on furnishing surety in the sum of Rs.1,00,

000. However, according to the learned counsel, the order about the confiscation of the vehicle was passed without any notice to the petitioner.

3. In my view, a case for admission of this petition is made out. The petition is admitted to regular hearing. Mr. Yaqub Khan Yousafzi learned Advocate-General, Balochistan, is present in Court. He waives notice of the petition and, by consent regular hearing of the main petition is taken up.

4. Learned counsel, inter alia, relied upon the judgment of the Shariat Appellate Bench of the Supreme Court of Pakistan in the case of Akram Khan v. The State reported in 1990 SCMR.486. In the said case, trial Court, while convicting the accused had passed an order of confiscation of the truck involved in the transportation of contraband narcotics. One of the petitioners, who claimed to be the owner of the truck, appealed to this Court against the judgment of the trial Court confiscating the truck without allowing him an opportunity to show cause against it. The appeal was rejected on the ground that it was not competent and there was nothing illegal in the order. Being aggrieved, the said petitioner went to the Supreme Court and his appeal was allowed. It was conceded before the Supreme Court on behalf of the State that though the appeal by the said petitioner is incompetent, the same could be treated as a revision and dealt with as such. The Supreme Court took notice of the two earlier decisions of the Supreme Court in the case Haji Abdur Razzaq v. Pakistan PLD 1974 SC 5 and Iqbal Elahi v. The State 1987 SCMR 1274. The said decision has been cited before this Court for the proposition that notice to the owner and hearing to him in the matter was requirement of the law before confiscation of the vehicle could be ordered.

5. The learned Advocate-General, Balochistan, concedes that to the extent the order of the trial Court passed confiscation order of the vehicle in A question, the same is liable to be set aside as it was passed without any notice and hearing.

6. In the circumstances, this revision petition is allowed to the extent that the order of confiscation of Vehicle No.7678-QAD in Sessions case, The State v. Fateh Khan and others passed by the learned Ad hoc Sessions Judge, Quetta, on 25-4-1994 is set aside and the matter is remanded to the trial Court for fresh decision on the question of the disposal of the vehicle in question after notice to Mr. Mumtaz Hussain Mehfooz, Advocate, 33-Lytton Road, Quetta, and granting hearing to the petitioner and allowing him to place such material/evidence as he may want to place before the Court. N.H.Q./933/FSC Petition allowed.