1. ' NADEEM AZHAR SIDDIQI, J.---Inspite of several opportunities given to the defendants no counter affidavit has been filed. On the last date the case was adjourned with the observation that in case the defendants fail to appear, the matter/ applications will be heard and decided on merits.
2. ' By filing this application (C.M.A. No,5930 of 2007) the plaintiff has prayed that the Defendant No,4 may be directed to hand over the vehicle bearing Registration No,JT-9397 (HTV) Make Hino Truck having chassis No,61092 and Engine No, H700211840190 HP to the plaintiff. In the affidavit filed in support of this application the plaintiff claims that he is the owner of the above said vehicle and has placed on record its registration book to prove his contention. He further states that the confiscation of the vehicle by the Defendant No,4 is illegal and unlawful and it has no right to retain the vehicle.
3. ' As stated above no counter affidavit has been filed to this application. However, the Defendant No,4 has filed written statement in which the ownership of the plaintiff has not been disputed and it has not been alleged that the plaintiff is in any way involved in the alleged offence.
4. ' Mr. M. Shafi Muhammadi, learned counsel for the plaintiff, states that, the vehicle in question cannot be confiscated unless it is shown that the owner of that vehicle is also involved in the alleged offence. He also submits that there is no allegation against the owner of the truck that he has the knowledge of loading contraband item on the vehicle. Learned counsel further submits that in case the truck is not released he has apprehension that the said vehicle will be ruined due to moisturized environment and this will not be beneficial to any of the parties. The learned counsel has relied upon the decision of the Federal Shariat Court reported as Daulat Khan v. The State (2005 PCr.LJ. 952) in support of his contention that the vehicle cannot be confiscated unless the owner had the knowledge or some nexus with the commission of alleged offence.
5. ' Prima facie the plaintiff is the owner of the truck which was confiscated by Defendant. No,4. The defendants inspite of opportunities have not filed counter-affidavit to this application and has not rebutted the assertions of the plaintiff. The Federal Shariat Court in the above reported -case has held:--- ' "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."
6. ' In view of the above I am satisfied that the plaintiff has made out a prima facie case and the balance of convenience is also in his favour and if the truck remains in possession of the defendants it will lose its value and it will not be in the interest of the parties. Therefore, I allow this application subject to furnishing solvent surety by the plaintiff in the sum of Rs,8,00,000 and P.R.
7. Bond in the like amount to the satisfaction of Nazir of this Court. The Defendant No,4 is directed to release the truck/vehicle along with container to the plaintiff on receiving the information from the Nazir of this Court regarding furnishing of surety with him.
8. ' The application stands disposed of.
2. In view of the order passed at Serial No,1 this application (C.M.A. No,5931 of 2007) has become infructuous and is dismissed as such.