' IBAD-UR-REHMAN LODHI, J.---After hearing the learned counsel for appellant, we consider it appropriate to decide the case on merits and as such the case is admitted to regular hearing.
Learned special Prosecutor for ANF is present and accepts notice on behalf of the state.
2, since short point is involved, learned counsel for the appellant as well as learned Law Officer requested for hearing of the case today. So be it.
3. In a case, registered through F.I.R. No.11/10 dated 26-4-2010 under section 9(c) of the Control of Narcotic substances Act, 1997 at Police station ANF, Faisalabad, a suzuki Cultus, Registration No.LEA- 6165, Chasiss No.370157, Engine No.E 401322 owned by the present appellant was taken into custody by the Investigating Agency on the allegation that the same was being used by the accused person of said registered criminal case. The present appellant being owner of the property, not involved in the criminal case, applied for having the possession of the said vehicle on sapurdari which was allowed in his favour and he is in use of the same since then.
4. The accused Muhammad Tauheed was being tried by the learned Judge, special Court C.N.s., Faisalabad and a final judgment was passed on 5-7-2013, whereby the accused Muhammad Tauheed was convicted under section 9(c) of the Control of Narcotic substances Act, 1997 and sentenced to life imprisonment with fine of Rs.10,00,000 and in default whereof to further undergo 1 year's s.I. The vehicle in question was ordered to be confiscated in favour of state and its auction was also ordered with a further direction to deposit the sale-proceed thereof in the treasury. On having come to know of such order of confiscation of the vehicle, the present appellant filed appeal under the provisions of section 48 of Control of Narcotic substances Act, 1997.
5. The learned special Prosecutor appearing for ANF has raised two objections, first as to the maintainability of appeal filed by the present appellant and second with regard to limitation of filing of the appeal.
6. The learned counsel for appellant, responding to such objections, has argued that under section 48, C.N.s.A. a wide scope for filing of appeal has been provided, for, an appeal against the order of a special Court comprising, a sessions Judge or an Additional sessions Judge, shall lie to this Court; that the provisions of such section of appeal places no restriction as to who can file an appeal; that a person, owner of the vehicle, who has been allowed to retain such vehicle on sapurdari, if has never further been associated in any proceedings of trial and has been deprived from such vehicle without any prior notice would certainly be termed as an aggrieved person from the judgment of the learned Judge, special Court C.N.s., Faisalabad and he would be a competent person to be an appellant against the order of the special Court.
7. Heard. Record perused.
8. On objection with regard to the limitation for filing an appeal under the provisions of C.N.s.A., although the learned special Prosecutor has put some labour in order to reach to some conclusion as to what is the limitation to be considered for filing an appeal under C.N.s.A. In absence of any particular provision in such special law, but we are not going to dilate upon such issue in the present case and leaving the same to be decided in some appropriate proceedings.
9. For the present appeal, suffice it to say that process adopted by the learned special Court in directing the confiscation of the vehicle in question is in complete negation of the proviso to section 32(2) of A C.N.s.A. Which reads as under:-- "Provided 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."
' In the present case admittedly the car was given to the appellant on sapurdari by the special Court but ignoring such aspect of the matter and also violating the process of issuance of notice to the appellant/owner and to enquire into the matter, the confiscation of vehicle was ordered by the special Court, thus the judgment dated 5-7-2013 to the extent of confiscation of vehicle is nullity in the eye of law and is not sustainable. To such extent, the order dated 5-7-2013 passed by the learned Judge special Court C.N.s., Faisalabad is therefore set aside and the matter is remanded back to the learned Judge special Court C.N.s., Faisalabad with a direction, first to issue notice to the owner of the vehicle and then to conduct a discrete inquiry while maintaining sapurdari with the appellant and thereafter pass an order with regard to disposal of suzuki Cultus Car, Registration No.LEA-6165, Chasiss No.370157, Engine No . E401322 .
10. With these observations, this appeal stands allowed.