MUSHIR ALAM, J.-Through instant criminal miscellaneous application under Section 561-A, Cr.P.C, applicant Muhammad Hussain has impugned the judgment dated 13.4.2004 passed by IIIrd Additional Sessions Judge, Shikarpur in criminal revision application No. 03/2004, whereby the order passed by VIIth Civil Judge and Judicial Magistrate dated 29.1.2004 was maintained and the custody of the truck No. CI-2037 on superdari claimed under Section 516-A, Cr.P.C, was declined on the ground, inter alia, that the accused facing trial for an offence under Article 3/4, Prohibition (Enforcement of Hadd) Order (IV) 1979 (referred to Order (IV) 1979) absconded away and that the subject- vehicle "is liable to confiscation", in terms of Article 14 of Order No.(IV) of 1979 as it was used in transportation of liquor.
2. Lt was contended by learned Counsel for the applicant that, in terms of Article 14 of the Order (IV) of 1979, the confiscation is not a mechanical process, it has to be made after giving owner an opportunity of being heard and recording evidence and arriving at a conclusion that the owner thereof was also liable and equally responsible for such support of his contention, he has drawn support from judgment of the learned Division Bench of this Court recorded in Muhammad Amin v.
The State (SBLR 2004 Sindh 914). Learned Division Bench considered analogous provision contained in C.N.S. Act, 1997, (i.e. Sections 32 & 33 thereof) set aside the order of confiscation proceeding in accordance with law. Ln another case from the jurisdiction of this Court, a Division Bench of this Court in Criminal Appeal No. 139/2003 again under C.N.S. Act, 1997 the confiscation of the vehicle used in transportation of incriminating substance was set aside, as the order was found to have been passed without undertaking investigation as to the guilt or otherwise of the owner of the vehicle as required under C.N.S. Act, 1997. Ln the case reported as Abdul Razak v. Pakistan (PLD 1974 S.C. 5) the apex Court examining the phrase "liable to confiscation" as used in Section 163 of the Sea Customs Act, 1887 concluded that "liable to confiscation" does not mean "shall be confiscated".
Mr. Ismail, learned State Counsel supports the contentions raised by Mr. Safdar Bhutto, ln the instant case it appears that both the Courts below erred in appreciating Article 14 of Order (IV), 1979. Lt may be observed that Article 14 is subject to Article 15 thereof. For the sake of convenience and in order to appreciate contentions raised, Articles 14 and 15 of Order (IV), 1979 and reproduced as follows:- "14. Things liable to confiscation, ln any case in which an offence has been committed under this Order, the intoxicant, utensil, implement or apparatus in respect or by means of which the offence has been committed shall be liable to confiscation along with the receptacles, packages, covering, animals, vessels, carts or other Vehicles used to hold or carry the same.
15. Confiscation how ordered. (1) ln any case involving anything liable to confiscation under this Order the Court deciding the case may order such confiscation despite the acquittal of the person charged.
(2) When an offence under this Order has been committed by the offender is not known or cannot be found, or when any thing liable to confiscation under this Order and not in the possession of any person cannot be satisfactorily accounted for the case shall be inquired into and determined by the Collector or other Prohibition Officer-in-charge of the District or any other officer authorized by the Provincial Government in this behalf who may order such confiscation: Provided that no such order shall be made until the expiration of fifteen days from the date of seizure of the things intended to be confiscated or without hearing the persons, if any, claiming any right thereto, and evidence, if any, which they produce in support of their claims.
3. From the bare perusal of Article 14 ibid, it is clear that any utensil, implement or apparatus or any vessel, carts or other vehicle used to hold or carry intoxicant in any form "shall be liable to confiscation" along with intoxicant. The procedure or manner provided for confiscation is laid down in Section 15, reproduced above, which Provision is again subject to rider contained in Proviso thereto.
4. The phrase "liable to be confiscated" as used in section 14 of Order (IV), 1979 does not mean that it shall be confiscated in any case. The apex Court in the case of Abdul Razak v . Pakistan (PLD 1974 SC 5) interpreted similar phrases used in section 168 of the Sea Customs Act, 1887 as follows:- "It appears to us that there is a great deal of force on the reasoning of the learned Judge in this case. If the words "liable to confiscation" give a discretion to the confiscating authority to deprive a person of his property, then it follows that this discretion must be exercised upon the principles of natural justice, that is to say, the persons sought to be deprived of the property must be given notice to show cause, they must be furnished with adequate opportunity of putting forward their point of view and the same must receive one consideration. Furthermore, according to one of the principles now well-accepted, no person should be deprived of his property by way of penalty unless it is clear that he is in some measure responsible for assisting or furthering the commission of the offence committed.
No innocent person should be unjustly" punished or deprived of his property. This was the cardinal principle which was followed by the learned Judge of the Calcutta High Court in the last mentioned case. We too think that this was the correct principle upon which the authorities should proceed."
5. Since provision of Article 14 of Order (IV) 1979 analogous and substantially in para materia to Section 168 of the Sea Customs Act, 1887, the interpretation given by the apex Court would be applicable and attracted while interpreting similar phrase in Section 14 ibid.
6. Section 14 of Order (IV) ibid, is controlled by section 15 ibid, lt provides that irrespective of acquittal of person charged with offence in relation to intoxicant, such acquittal of accused ipso facto will not absolve the vehicle or transport, used in the commission of crime, of its liability for the consequence flowing from it being used in the commission of crime. The owner or any person claiming any right or interest in any thing liable to confiscation that may include vessel, carts or any other vehicle used in the commission of crime under Order (IV) of 1979, the Prohibition Officer in-charge of the District or any other officer appointed by the Provincial Government in this behalf, after holding enquiry may order confiscation. Such confiscation is not mechanical or automatic but could be ordered only if the person claiming property liable to confiscation, cannot satisfactorily account for such use by whomsoever in the commission of crime. Satisfaction of the confiscating authority must be based on objective assessment of events and explanation of person claiming such property, lt may further be observed that proviso to section 15 resonate with age old principle of natural justice embodied in doctrine of audi alteram partem, i.e. No person to be condemned unheard". No order of confiscation of any vessel, cart or other vehicle "that may be liable to confiscation" could be passed without affording to the owner or claimant thereof, an opportunity of being heard and if necessary after recording evidence in support of claim to such property.
7. Scheme of Order(IV), 1979 does not exclude the application of Section 516-A, Cr.P.C. On the contrary, Code of Criminal Procedure is made applicable by virtue of Article 27 of the Order (IV), 1979. Unless any provisions of Cr.P.C, is in conflict with any provision of Order (IV), 1979, then in case of conflict provision of Cr.P.C, will give way to special enactment Order (IV) of 1979.
Examining the above case, it appears that both the Courts below erred in concluding that since subject truck "is liable to confiscation", therefore, same cannot be returned on superdari. Such assumption does not find support from the scheme of Order (IV) of 1979. During pendency of trial and to determine the extent of involvement of owner of transport, vehicle, receptacle or container, as the case may be, Court trying such offence may give custody of such property to the claimant till determination of his liability in consonance with provision of Section 516-A, Cr.P.C.
8. Examining the instant case, it appears that the learned Trial Court has not taken due note of the legal position as discussed above. Under circumstances, impugned orders of the Courts below are set aside. The subject-vehicle said to be Bed-Ford of the year 1980 Model, it is stated that value of truck is not more than Rs. 500,000/- (five lac), may be restored to owner on superdari. Under circumstances and for the foregoing reasons, orders impugned are set aside, the application under Section 516- A, Cr.P.C, is allowed, the truck in question may be released on superdari under Section 516-A, Cr.P.C, on furnishing two solvent sureties in the sum of Rs. 300,000/- (Rupees three lac) each and P.R. Bond in the like amount to the satisfaction of the learned Trial Court. Applicant shall produce or cause to produce subject-vehicle as and when required, ln case applicant misuse the concession, the Trial Court may pass such order as may be necessary under law.
9. Learned Trial Court is directed to pass appropriate order as to confiscation or otherwise of the subject-vehicle after affording an opportunity of being heard and to lead evidence if any, to the applicant in terms of Article 15 of the Order (IV) of 1979.
Criminal Misc. Application stands disposed of in terms above.