Sadiq Mahmud Khurram, J.--Through this appeal the order passed by the learned Sessions Judge/Judge Special Court (CNS), Rawalpindi dated 28.09.2020 has been assailed.
2. The brief facts of the case are that the FIR No. 57 of 2015 dated 26.04.2015 was registered at Police Station ANF, Rawalpindi in respect of offences under Sections 6, 9(c), 14 and 15 of the Control of Narcotic Substances Act, 1997 and during the investigation of the case, a vehicle Bearing Registration No. RJ-568 was taken into possession by the Investigating Officer. The accused namely Lashkar Khan, Muhammad Imran and Muhammad Shafique were arrested during the investigation of the case. The accused namely Muhammad Imran died prior to the trial. The accused namely Lashkar Khan and Muhammad Shafique were tried by the learned trial Court and vide its judgment dated 19.08.2019, both the accused namely Lashkar Khan and Muhammad Shafique were acquitted. Thereafter , the respondent namely Ali Shah moved an application before the learned Sessions Judge/Judge Special Court (CNS), Rawalpindi seeking the custody of the vehicle Bearing Registration No. RJ-568 which was allowed vide order dated 28.09.2020 and the application filed by the appellant under Section 32 of the Control of Narcotic Substances Act, 1997 was, however , dismissed vide the same order , hence this appeal.
3. Learned counsel appearing on behalf of the appellant has vehemently argued that the order passed by the learned Sessions Judge/Judge Special Court (CNS), Rawalpindi dated 28.09.2020 is against the facts and law and is liable to be set-aside.
4. We have heard the learned counsel for the appellant and perused the record appended with the appeal with his able assistance.
5. We have noted that the FIR No. 57 of 2015 dated 26.4.2015 was registered at Police Station ANF, Rawalpindi in respect of offences under Sections 6, 9(c), 14 and 15 of the Control of Narcotic Substances Act, 1997 and during the investigation of the case, the vehicle Bearing Registration No. RJ-568 was taken into possession by the Investigating Officer. The accused namely Lashkar Khan, Muhammad Imran and Muhammad Shafique, were arrested during the investigation of the case and narcotics were recovered from their possession which were lying in a briefcase in the trunk of the car. The accused namely Muhammad Imran died prior to the trial. The accused namely Lashkar Khan and Muhammad Shafique were tried by the learned trial Court and vide its judgment dated 19.08.2019 both the accused namely art Lashkar Khan and Muhammad Shafique were acquitted. Thereafter the respondent namely Ali Shah moved an application before the learned Sessions Judge/Judge Special Court (CNS), Rawalpindi seeking the custody of the vehicle Bearing Registration No. RJ-568 which was taken into possession by the Investigating Officer of the case FIR No. 57 of 2015 dated 26.04.2015 registered at Police Station ANF, Rawalpindi. The appellant also filed an application under Section 32 of the Control of Narcotic Substances Act, 1997 seeking confiscation of the vehicle Bearing Registration No. RJ-568. The application filed by the respondent namely Ali Shah was allowed by the learned Sessions Judge/Judge Special Court (CNS), Rawalpindi vide order dated 28.09.2020 and the application filed by the appellant under Section 32 of the Control of Narcotic Substances Act, 1997 was, however , dismissed vide the same order . The question to be determined in this appeal is whether vehicle Bearing Registration No. RJ-568 could validly be confiscated under Section 32 of the Control of Narcotic Substances Act, 1997 or its custody could be handed over to the respondent. The phraseology employed in Section 32 of the Control of Narcotic Substances Act, 1997 is very plain. It clearly lays down that whenever an offence has been committed which is punishable under this Act, the narcotic drugs psychotropic substance or controlled substances material, apparatus and utensils in respect of which, or by means of which, such offence has been committed shall be liable to confiscation, however the said confiscation cannot be made unless and until it is proved that the owner thereof knew that the offence was being, or was to be, committed and the vehicle shall be used for carrying such drugs and substances. Section 32 of the Control of Narcotic Substances Act, 1997 reads as under: "Section 32. Article connected with narcotics:- -(1) Whenever any offence has been committed which is punishable under this Act, the narcotic drug, psychotropic substance or controlled substance, materials, 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."
(emphasis supplied)
The ownership of the respondent namely Ali Shah regarding the vehicle Bear ing Registration No. RJ-568 is admitted and also proved by the available documentary evidence. The appella nt has not challenged that the respondent Ali Shah was the owner of the vehicle bearing Registration No. RJ-568. The respondent namely Ali Shah was not named as an accused in the case FIR No. 57 of 2015 dated 26.04.2015 registered at Police Station ANF, Rawalpindi in respect of offences under Sections 6, 9(c), 14 and 15 of the Control of Narcotic Substances Act, 1997. The Investigating Officer of the case did not collect any evidence during investigation of the case that the respondent namely Ali Shah was in knowledge of the fact that the vehicle Bearing Registration No. RJ-568 was to be used by the accused for carrying and transporting of the narcotic substances. In absence of such evidence, the respondent namely Ali Shah could not be deprived of the custody of the vehicle Bearing Registration No. RJ-568 owned by him and the vehicle Bearing Registration No. RJ-568 could not have been ordered to be confiscated.
Reliance is placed on the case of "Allah Ditta vs. The Sate" (2010 SCMR 1181) wherein the august Supreme Court of Pakistan has held as under: "Section 32 empowers the trial Court to order confiscation of the vehicle used in trafficking of narcotics, with a proviso that the vehicle shall not be confi scated unless it is proved that the owner was aware that his vehicle was being used in the crime. 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 prosecution to establish that the owner had the knowledge of his vehicle being used in the crime."
The learned counsel for the appellant has not been able to point out any illegality , infirmity or error in the impugned order which would warrant interference by this Court. We have concluded that the order passed by the learned Sessions Judge/Judge Special Court (CNS), Rawalpindi dated 28.09.2020 was passed in accordance with law and facts.
6. In view of the above discussion, this appeal being meritless, is dismissed.