This appeal in terms of section 48 of The Control of Narcotic Substances Act, 1997 (hereinafter referred as "C.N.S.A. 1997) calls in question the vires of order dated 13th June, 2018 whereby learned Additional Sessions Judge, Mianwali refused to release the vehicle involved in the instant case on the ground that the convict has already questioned the judgment of his sentence before this Court through an appeal.
2. The facts in precision necessary for adjudication of instant appeal are that vehicle in question Toyota Hi-AC bearing No. LES-1852 was seized by the local police in case FIR. No. 159 dated 15.11.2017 under section 9(c) of the Control of Narcotic Substances Act, 1997 at Police Station Chikrala District Mianwali for the charges that the accused Nadir Khan son of Ghulab Khan was transporting the narcotic weighing 4800 grams i.e. 4 kilograms and 800 grams charas in the said vehicle. After conclusion of the trial, vide judgment dated 23.4.2018, passed by the learned trial Court, said accused was convicted under section 9(c) of the Act ibid for possessing 4800 grams charas and sentenced to rigorous imprisonment for seven years and six months with fine of Rs. 35,000/-and in case of default in payment of fine to further undergo six months and 15 days of simple imprisonment, Benefit of section 382-B, Cr.P.C. was also extended to him. As regards the vehicle in question is concerned, the learned trial court has passed the order for handing over the said vehicle to its legitimate and original owner after verification.
By virtue of said judgment, the appellant moved an application for issuance of Robkar to Incharge Malkhana Sadar Mianwali for handing over the vehicle in question but the said application was declined by the learned Additional Sessions Judge, Mainwali through the impugned order dated 13.6.2018. Hence, this appeal.
3. Learned counsel for the appellant inter alia contends that the vehicle in question is not a case property as nothing was recovered from its secret compartments rather the alleged recovery was effected beneath the driving seat of the vehicle. He added that the appellant was neither arrayed as an accused in the FIR nor there is any material to this effect that he has any nexus with the alleged offence. Maintains that the vehicle in question cannot be termed as case property and as such learned Additional Judge after concluding the trial observed so and passed the over directing the police to release the vehicle. Submits that despite order the vehicle was not released and appellant moved an application to the learned Additional Sessions Judge for the said purpose which was declined on the grounds which are alien to law .
4. Conversely , learned Deputy Prosecutor General appearing on behalf of the State seriously opposed the appeal.
5. After hearing learned counsel for the appellant as well as learned Prosecutor for the State, we have also examined the record.
6. Before proceeding further in. the matter , it will be relevant to point out here that a vehicle can be seized under the Control of Narcotic Substances Act, 1997 only in three situations, i.e. firstly , where it is carrying unlawful narcotics along with some lawful narcotics, secondly , where it is a part of the assets derived from narcotic offences and, thirdly , where narcotics have been recovered from its secret chambers, cavities or compartments, etc. Apart from the above mentioned three implied situations we have not been able to find any other express or implied situation or provision in the context of the Control of Narcotic Substances Act which may make it permissible' for seizure of a vehicle or conveyance in a case of narcotic. Guidance is sought from the judgment of this Court reported as " Javed Hayat and another v . The State" (PLD 2006 Lahore 167 ).
7. Now coming to the case in hand, it will be appropriate to refer to the two relev ant provisions of the Control of Narcotic Substances Act, 1997, namely , the proviso of section 74 of the Act ibid, deals with the temporary custody while section 32 provides for confiscation or otherwise of such vehicle at the conclusion of the trial, The present case involves the latter statutory provisions of law which for the sake of ready reference is reproduced as under:- "S. 32. Articles connected with narcotics. --(1) Whenever an offence has been committed which is punishable under this Act, the narcotic drug, psychotropic substance or controlled substance, material, apparatus and utensils in respect of which, or by means of which, such offence has been committed shall be liable to confiscation;
(2) Any narcotic drug, psychotropic substance or controlled substance lawfully imported, transported, manufactured, possessed, or sold along with, or in addition to, any narcotic drug, psychotropic substance or controlled substance which is liable to confiscation under subsection (1) and the receptacles or packages, and the vehicles, vessels and other conveyance used in carrying such drugs and substances shall likewise be liable to confiscation; 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.
8. Section 32 of the Act, 1997 deals with the final confiscation or release of the vehicle to the owner , after the conclusion of the trial, if he had proved that he had no knowledge about the offence, which allegedly had been committed in the vehicle. Not only that an innocent owner of the vehicle is entitled to the return of the vehicle but the burden has been placed on the prose cution to establish that the owner had the knowledge of his vehicle being used in the crime. As far as 'the question of knowledge is concerned, undisputedly it is required to be proved by leading evidence and the learned trial Court can, form such opinion after having taken into, consideration the facts of the case. Reliance is placed on "Allah Ditta v. The State" (2010 SCMR 1181). In the instant case, the learned trial Court at the time of conclusion of the trial of Nadir Khan, convict-accused in case FIR No. 159 dated 15.11.2017, under section 9(c) of C.N.S.A., 1997 at Police Station Chikrala. Tehsil and District Mianwali, while dealing with the vehicle in question has categorically observed as under:- "As far as vehicle is concerned, admittedly the recovered narcotic was not concealed in its any cavity specially designed for the purpose of concealing the same. Admittedly the vehicle was not in the ownership of the convict and the same was just driven by him. Admittedly the owner of the vehicle has not been challaned to court to stand trial as co-accused. It is nowhere either alleged or proved on record that the owner of the vehicle had any direct or indirect connection with the commission of offence under trial and in this back drop the vehicle is not liable to be confiscated under sections 32 and 33 of the Control of Narcotic Substances Act, 1997 while holding this I glean guidance from the case laws reported as 2005 PCr.LJ. 1005, 2009 MLD 131 (Peshawar), 2016 PCr.LJ 56 (Lahore).
Therefore, the vehicle be handed over to its legitimate and registered owner of the vehicle after due verification. A disposal of the case property to the above effect be made after the expiry of the period of revision or appeal if any .
9. It is manifest from the above referred portion of judgment of the learned trial Court that the vehicle in question cannot be termed as case property as admittedly charas was not recovered from the secret compartments of the vehicle in question. The appellant is neither an accused nor any material is available with the prosecution that his vehicle was used in the offence with his active knowledge. Even otherwise there is no other claimant of the car in question. The rigours provided in section 74 of "C.N.S.A., 1997" are thus, not attracted to the present case as the bar provided in the said provision is not absolute. Reference in this respect, if needed, can be made to the cases of Muhammad Hanif v . The State and others (2011 SCMR 1471 ) and Allah Ditta v . The State (2010 SCMR 1 181).
10. For the foregoing reasons, we thus, hold that the order dated 13.06.2018 passed by the learned Additional Sessions Judge, Mianwali declining the request of the appellant qua the issuance of direction to Incharge Malkhana Sadar Mianwali for delivery of vehicle No. LES. 1850-15, Engine No. 2TR0875285 is illegal and unlawful and the same is set-aside. As a sequel of same, the instant appeal is allowed and the learned trial court is directed to issue Robkar to Incharge Malkhana Sadar Mianwali for handing over the vehicle in question to its legitimate and registered owner after due verification.