2008 PLP 2370 (YLR)

MUHAMMAD ALAM KHAN, J.

The petitioner, Aurangzeb, through this petition filed under section 561-A, Cr.P.C. seeks the quashment of order dated 18-7-2006 passed by the learned Additional Sessions Judge-III, Bannu, whereby his application for Superdari of Bus No.PRK-9553 involved in case F.I.R.No.70 dated 20-3-2005 under Articles 3/4 of Prohibition (Enforcement of Hadd) Order, 1979 read with section 9 of the Control of Narcotic Substances Act, 1997, and its confiscation in favour of State was dismissed.

2. The petitioner claimed to be the lawful owner of the bus in question on the grounds that he had purchased the same from one Muhammad Yousuf son of Muhammad Gul, resident of Charsadda vide deed annexed herewith; that he was provided with the transfer letter and registration book of the said bus which was subsequently sold to Liaqat son of Gul Wali and Birather son of Sher Muhammad through a sale-deed dated 18-3-2005 subject to the terms and conditions mentioned therein. However, when the buyers failed to comply with their commitments, the petitioner knocked the doors of the Civil Court through a civil suit which was consequently decreed ex parte in his favour on 20-1-2006. Thereafter, the said bus was involved in the aforesaid case F.I.R. No.70 dated 20-3-2005 and from its secret cavities seventy-five kilogram Charas was alleged to have been recovered. Five persons, namely, Fazl-e-Maula, Shaer Khan, Saeedullah, Bakht Zada and Muhammad Hanif were charged for offence. Of them, accused Fazl-e-Maula and Shaer Khan were found guilty and on conviction have been sentenced to imprisonment for life with fine amounting to Rs.one Lac each, in default to suffer six months' simple imprisonment, while accused Saeedullah and Bakht Zada were acquitted by the learned Additional Sessions Judge-III/Judge Special Court Bannu vide judgment dated 18-7-2007 and accused Muhammad Hanif has been declared proclaimed offender. The convict Fazl-e-Maula and Shaer Khan have challenged their conviction and sentence in this Court through separate Criminal Appeals Nos.125 and 126 of 2006.

3. We have heard learned counsel for the parties and perused the record.

4. Before ordering confiscation of the said bus, the learned trial Judge was required to have issued a notice under section 33 of the Control of Narcotic Substances Act 1997, to the petitioner/ owner, which had not been issued to him.

5. The fact that no notice as aforesaid was issued to the petitioner and he had no nexus with the commission of the offence, specially when the impugned order was passed at the back of the petitioner and the well known maxim of law "that nobody should be condemned unheard" which is so well-entrenched in our judicial system was violated by the trial Court.

6. Therefore, in view of the dictum laid down in the case of State v. Rashid PLD 2003 Peshawar 87, Muhammad Amin v. State PLD 2004 Karachi 485 and Abdul Waheed v. The State 2002 PCr.LJ 666 and an unreported judgment of this Court in Criminal Appeal No.104 of 2005, titled Abdul Qadeer Paracha v. The State decided on 13-10-2005, we are constrained to accept this petition, quash the impugned order dated 18-7-2006 only to the extent of confiscation of Bus/vehicle and remand the case to the learned Special Judge/trial Court for decision afresh in accordance with law. The petitioner is directed to appear before the said Court on 15-7-2008. H.B.T./103/P Case remanded.