' This revision petition is directed against judgment, dated 9-6-2003 passed by Mrs. Irshad Qaisar, learned Sessions Judge, Charsadda, whereby the truck bearing Registration No,PRG-6975 involved in case F.I.R. No,321, dated 26-3-1996 registered with Police Station Shabqadar, District Charsadda has been ordered to be confiscated under Article 14 of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the Order).
2. Brief history culminating into filing this revision petition is that Talib Khan, driver and Rehman Khan cleaner were proceeding towards Kanday Haleemazai. The truck was intercepted by the Customs Authorities and on search under the bonnet of engine, a packet containing one kilogram heroin was recovered. As a result of the raid, Talib Khan, driver, Rehman Khan Cleaner and one Fazal Wahid who was travelling in the truck, were arrested. They were challaned under Articles 3 and 4 of the Order and were sent up to face trial. Fazal Wahid was acquitted. However, Talib Khan and Rehman Khan were convicted under Articles 3 and 4 of the Order and were sentenced to undergo three years' R.I. Each with fine of Rs,1,000 each or in default to suffer one month S.I. Each, on each count.
3. On appeal before this Court (Criminal Appeal No,3/P of 2001), the conviction under Article 4 of the Order was set aside, whereas the conviction under Article 3 of the Order was maintained. However, sentence under Article 3 of the Order was reduced to two years' R.I. Vide judgment, dated 9-10-2001 passed by his Lordship Mr. Justice Fazal Ilahi Khan, the then Chief Justice of this Court.
' Vide para.10 of the judgment, his Lordship directed to initiate proceedings under Article 14 of the Order and to decide whether the truck should be confiscated after hearing the owner of the truck, i,e, Daulat Khan, the present petitioner.
4. In the impugned judgment, the learned Judge observed that in spite of affording opportunities and lapse of one and half years Daulat Khan did not turn up and appear in this Court. The learned Sessions Judge vide her judgment dated 9-6-2003, confiscated the truck in question bearing registration No,PRG-6975 to the State and ordered that the bail bonds of the truck amounting to Rs,4,00,000 be deposited. Meanwhile Daulat Khan appeared in Court who was ordered to be kept in Civil Prison till the recovery of the aforesaid amount.
5. Before proceeding with the hearing of the revision petition, the learned counsel for the petitioner has been asked to explain as to why Daulat Khan failed to produce the truck before the Court and as such violated the terms of Superdari. It is explained that notice was not received by him as the petitioner was away to Karachi and was following his truck which had been taken to Karachi by the driver for transporting some goods therein. It took quite some time to retrieve the truck. In the meanwhile the notices which might have been sent at his home address were not in fact received by him. Although the explanation tendered by the petitioner does not appear to be very sound or genuine yet considering that the matter should be decided on merits instead to non-suit the petitioner on technical ground, the case has been heard on merits.
6. The learned counsel in support of the revision petition argues that it is true that the truck in question belongs to Daulat Khan petitioner, who is an aged person. He never plied the truck himself.
' Talib Khan and Rehman Khan are the driver and cleaner of the truck respectively and they used to ply the truck and transport the goods etc. Therein. At the time of raid, the petitioner was not present. He came to know only after the aforesaid two persons had been arrested and the truck had been taken into custody. The petitioner obtained Superdari of the truck stating therein that the petitioner had absolutely no knowledge or had no nexus with the commission of the alleged offence. The B Superdari of the truck was handed over to him. The case against the driver and cleaner proceeded in the Court of learned Sessions Judge and both of them were convicted and sentenced as noted above.
7. The question to be determined in this revision petition is whether the truck in question, could validly be confiscated following the provisions of Article 14 of the Order. The phraseology employed in this Article is very plain. It clearly lays down that whenever an offence has been committed under this Order, the intoxicant, still, utensil, equipment or apparatus in respect or by means of which the offence has been committed shall be liable to confiscation along with the receptacles, packages, animals, vessels, carts or other vehicles, used to hold or carry the same. The plain reading of this Article indicates that if any article, animal or vehicle is employed to prepare or transport narcotics covered by the provisions of this Article, the same has, to be confiscated. The provision is mandatory. It does not contain any exception or proviso. The learned counsel for the petitioner has argued that it is true that this Article does not speak of any exception and the power to confiscate the vehicle has not been qualified with any condition but in order to administer criminal justice the most important criteria or essence of every offence, i,e, mens rea or guilty mind has to be considered. No crime or offence is complete unless the commission of the same is coupled with the necessary ingredient of mens rea or guilty mind. In this case the truck in question which is admittedly a valuable property belongs to Daulat Khan petitioner and as per prosecution under the control and use of the driver along with its cleaner. Whenever any offender has to be punished or penalized, it is necessary to look for the mens rea on his part or any contribution made by him. In order to determine the mens rea, facts and circumstances of every case have to be considered and assessed. There may, not be direct evidence regarding knowledge or participation of the owner of the vehicle vis-a-vis carrying of narcotics substance but if the same is spelt out of the circumstances or reflected from his conduct, etc., then the owner of the vehicle being privy to the commission of the offence cannot be exonerated. The law will take its course and confiscation of the vehicle would be ordered.
' I enquired from the learned counsel for the State whether any query or probe was made by the raiding party or the Investigating Officer to trace out that Daulat Khan as owner of the truck had any lc knowledge of transporting the narcotics. Nothing has been done in this regard, rather no one ever adverted to this aspect.
8. The packet of heroin was recovered from underneath the bonnet of the engine. There was no pocket or any other secret column constructed within the body of the truck, which would indicate or suggest that the same could not have been done without knowledge or permission of the owner.
The packet of heroin was lying just beneath the bonnet in a bag. The contention of the petitioner that in order to penalize the owner of the truck, the possession of the narcotic substance should be a conscious possession because under the general rule of criminal jurisprudence crime is ordinarily personal and no one else can be punished for the offence committed by another person.
' The learned counsel has drawn attention to the provisions of section 32 of the Control of Narcotic Substances Act, 1997 to demonstrate that contents of section 32 are para materia same as that of Article 14 of the Order but under that section the Legislature has added a proviso in the following terms:-- "That no vehicle, vessel or other conveyance shall be liable to confiscation unless it is proved that the owner thereof knew that the offence was being, or was to be committed."
' The Control of Narcotic Substances Act is a subsequent enactment on the same subject containing similar provisions. Perusal of the both reveals that ingredients of Article 14 and section 32 are para materia same. Therefore, by following the principles laid down therein, while deciding question of confiscation under Article 14 of the Order, uniformity of justice and equity demands that offender should be treated similarly. The contents of the proviso to section 32 of Control of Narcotic Substances Act can validly be pressed into service treating it as a principle and intention of Legislature. The proviso is essentially a beneficial enactment to safeguard the right of innocent owner.
9. In support of this contention, a judgment from this Court titled Muhammad Akbar and others v.
The State has been cited. It was held therein that the owner of the car had nothing to do with the carrying of the narcotics, therefore, confiscation of car was set aside. Although the facts of the case are bit different from the facts of the present Case, yet the principle vis-a-vis confiscation of the vehicle has been laid down that in order to confiscate a vehicle the owner of the vehicle should be shown in some way to be concerned with the commission of the offence. Following this principle, with profound respect it is added that if the vehicles are confiscated even in the cases where the owners are not even aware of the criminal activities carried on by their servants or driversthen it will not only be unjust but may be prejudicial to the entire community in business of transport. It is, howeyer, clarified that in case of any element of knowledge, approval or even acquiescence on the part of the owner then confiscation of the vehicle cannot be condoned.
10. As observed above, in absence of any mens rea, to penalize a person would be unjust and also contrary to the principle laid down under Islamic jurisprudence ARABIC TEXT for every action the intention of the doer has to be kept in view. In absence of the same, confiscation of the vehicle will be harsh and unjust. The learned counsel has further cited the following judgment wherein the above referred principle was followed and upheld:-- ' The learned counsel has stated at the bar that the petitioner has no criminal antecedents and he throughout of his life did not indulge in any activity of carrying or transporting the narcotics. The learned counsel for the State has not been able to contradict or refute the contention. According to him, there is no record available in this behalf.
11. After going through the record and hearing the learned counsel at the bar, I find that the confiscation of the petitioner's Truck No,PRG-6975 is unjust and improper. Therefore, the judgment dated 9-6-2003 passed by Mrs. Irshad Qaisar, learned Sessions Judge, Charsadda is set aside.