P L D 1980 Karachi 221 (PLP)

AJMAL MIAN, J.-This petition is directed against the orders dated 25-11-1976, dated 29-12-76 and dated 12-8-78 passed by the respondents Nos. 1 to 3 respectively. The facts leading to the filing of the above petition, as asserted in the petition are that the petitioner on 10-4-75 sold his truck bearing Registration No. K. C. T. 1059 (previous No. KAR-8870) to one Tariq son of Khalid under hire purchase agreement dated 23-4-1976 (hereinafter referred to as the agreement), for a sum of Rs. 1,15,

000. Under the agreement the purchaser had paid a sum of Rs. 30,000. towards the purchase price. The balance price was payable in intstalments at Rs. 3,000 per month on the 10th of every month from the date of taking over of the physical possession. of the truck (Le. from 10-4-75) until the full price was paid. On 20-5-76, . in pursuance of a credible information, the custom staff apprehended the aforesaid truck (which was abandoned) from village Raj Malik, Tehsil Jatti, District Thatta. On examination of the truck it was found that it contained 12 bales of cloth of foreign origin and 50 bags of oil cakes. The custom staff also found 144 bales of cloth and goods concealed in the near bushes and consequently the custom staff also saw two persons running from the above place of the incident.

2. After that the respondent No. 1 issued a show-cause notice dated 19-8-76, to the petitioner. In response whereof the petitioner appeared before the respondent No. 1 and contended that the truck could not be confiscated as he was the owner of the truck and not Tariq nephew of Issa Khan. However, the respondent No. 1 through his impugned order dated 25-I1-76 held that the truck which was being used for the transportation and removal of the seized contraband goods was also liable to confiscation under section 168 of the Customs Act; 1969. Being aggrieved b3 the above order of the respondent No. 1 petitioner preferred an appeal which was dismissed by the respondent No. 2 through his impugned order dated 29-12-76. Against the above order the petitioner went in revision which was also dismissed by the respondent No. 3 through the impugned order dated 12-8-1978. The petitioner has filed this petition to challenge the above three orders.

3. In support of the above petition the learned counsel for the petitioner Mr. S. A. Majid has contended that under the agreement the property in the truck remained vested in the petitioner and as there was no evidence to indicate that the petitioner had permitted the purchaser to use the truck for smuggling purposes his truck could not have been confiscated. In support of the above contention the learned counsel for the petitioner has relied upon the case of Haji Abdul Razak v. Pakistan (1) and the case of Suleman v. State (2). In the former case, their Lordships of the Supreme Court and while construing provisions of sections 168, 1.67(8) and 167(81) of the Sea Customs Act, 1878, were pleased to hold that a vehicle used for the removal of the smuggled goods was not liable to confiscation automatically and that the discretion given to the authority to confiscate had to be exercised on sound judicial principles. In the above case the alleged stolen vehicle was used for transporting the contraband goods and it was held by the Supreme Court that in the absence of any evidence that the owner of .the vehicle had authorised the use of the vehicle for the aforesaid purpose the vehicle could not have been confiscated, merely on the ground that it was unauthorisedly used by the persons who had stolen the vehicle. In the latter case a learned Single Judge of the erstwhile High Court of West Pakistan. Lahore Bench, while construing the provisions of sections 11 and 12 of the Opium Act, held that without issuing a show-cause notice to the owner of car which was used for transporting the contraband opium the vehicle could not have been confiscated. In our view the above two rulings are distinguishable in as much as in the instant case it is not the case of the petitioner that the truck was stolen, or that he was not given a show-cause notice before the passing of the impugned order dated 25-11-1976.

4. Under the agreement the petitioner had delivered the possession of the truck to the purchaser without putting any condition as to the use of the truck.- Clause 7 of the agreement provided that in case of any damage or loss to the truck the vendee shall be responsible and would pay the amount of the truck to the vendor in instalments of Rs. 3,000 p.m. till the price of. the truck was paid to the vendor. Furthermore it was also agreed (1) P L D 1974 S C 5 (2) P L D 1962 Lah. 11 under the agreement that on handing over of physical possession of the truck on 10-4-76 if there was any question of dues, charges, loans, taxes challans, accidents etc. over the said truck prior to the above date the vendor shall be responsible and after the above date the vendee shall be responsible. In our view, the petitioner is entitled to maintain an action for the recovery of the balance price against the purchaser under the agreement but the order of confiscation cannot be defeated on the pleas that the purchase has not paid the balance price and that the property in the truck had not passed to the purchaser at the time of its seizure. If, we were to accept the e petitioner's above contention, in that event it will be easy for any smuggle to take on hire purchase agreement a vehicle and to use it for smuggling and thereafter to avoid the confiscation of the vehicle. In our view this cannot be intention of the law. The respondents Nos. 1 to 3 were competent in law to pass impugned orders and therefore, it cannot be urged that the same are without lawful authority.

5. It was further contended by the learned counsel for the petitioner that the purchaser of the truck is not traceable and therefore the petitioner will not be able to recover the balance price. In our. view the petitioners' above inability or difficulty to recover the balance price will not render the above legal orders as illegal. We may observe that the fact that the purchaser has not come forward to claim the possession after its seizure by the custom authorities and the fact that he is also not traceable are indicative of the fact that in fact the truck in question was abandoned with the aforesaid contraband goods. In our view of the above discussion we do not find any merit in the petition and, therefore the same is dismissed in limine. ABDUL KADIR SHAIKH, C. J.-I agree. it. M. A. Petition dismissed.