MUHAMMAD FAHEEM WALI, J. Through the instant criminal appeal, the appellant has called in question the judgment dated 30.4.2022, rendered by learned Additional Sessions Judge-III/Judge Special Court, D.I.Khan, whereby the learned trial Court while acquitting the accused Muhammad Riaz and Muhammad Farhan, passed order of confiscation of motorcar bearing No.LEH/904 to the State, in case FIR No.05 dated 07.02.2021 under Section 9(d) of Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019 of Excise, D.I.Khan.
2. The brief facts of the case are that on 07.02.2021 at 1730 hours at Dera-Da raban Road Kulachi, the police intercepted motorcar bearing registration No.904/LEH-15, Toyota Corolla. On query , the driver disclosed his name as Muhammad Farhan Gul while the person sitting on front seat disclosed his name as Muhammad Riaz. Both the accused were deboarded from the motorc ar and were searched but nothing incriminating was recovered from their possession, however , on search of the motorcar , 12 packets containing charas were recovered from underneath secret cavities in rear seat of the motorc ar, on weighing, each packet came out to be 1000 grams charas and in total 12000 grams charas was recovered . Hence, the vehicle in question alongwith alleged recovered contraband was taken into possession and the ibid FIR was registered against the said accused.
3. The accused faced trial before learned Additional Sessions Judge-III/JSC, D.I.Khan and vide judgment dated 30.4.2022 they were acquitted of the charges levelled against them. However , the case property i.e. motorcar in question was ordered to be confiscated to the State after expiry of period of appea l/revision. The present petitioner has filed the instant appeal against the judgment dated 30.4.2022 to the extent of confiscation of the motorcar .
4. Arguments heard and record perused.
5. It will be appropriate to refer to the relevant provisions of the Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019. Section 34-A of the Act provides for confiscation or otherwise of such vehicle at the conclusion of the trial, which for the sake of ready reference is reproduced as under:- "34-A. Articles 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 of fence has been committed shall be liable to confiscation.
(2) Any narcotic drug, psychotropic substance or controlled substance imported, transported, manufactured, possessed or sold lawfully or otherwise alongwith, or in addition to, any narcotic drug, psychotropic substance or controlled substance, which is liable to confiscation under sub-section (1) and the receptacles or packages and the vehicles, vessels and other conveyances, 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 knew that the of fence was being, or was to be, committed."
6. Section 34-A of the Act 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. As far as the question of knowledge is concerned, undisputedly it is required to be proved by leading evidence.
7. Similarly , Section 37 of the Act ibid pertains to order for forfeiture of assets. It would be also convenient to reproduce the same, which is as under:-
37. Order for forfeiture of assets. ---(1) Where the Special Court convicts an accused under this Act, the Director or Regional Police Officer or an authorized officer may request the said court by an application in writing alongwith a list of the assets of the convict or, as the case may be, his associates, relatives or any other person holding or possessing such assets on his behalf, for forfeiture thereof.
(2) Where the Special Court is satisfied that any assets specified in the list referred to in sub-section (1) were derived, generated or obtained in contravention of this Act, it may order that such assets shall stand forfeited to the Federal Government, in case of conviction by foreign Court and Government, in case of conviction by Special Court: Provided that no order under this section shall be made without issuing a notice to show cause and providing a reasonable opportunity of being heard to the person being af fected by such order: Provided further that if such person fails to tender any explanation or defaults in making appearance before the Special Court on any date appointed by it, the Special Court may proceed to recor d an order ex-parte on the basis of the evidence available before it.
(3) Where any shares in a company are forfeited to Government under sub-section (2), notwithstanding anything contained in the Companies Act, 2017 (Act No. XIX of 2017), or any other law for the time being in force or Articles of Association of the Company , such shares shall be registered in the name of the Government.
8. Proviso first to subsection (2) of the above provision of law reveals that no order with respect to confiscation shall be made without issuing a notice to show cause and providing a reasonable opportunity of being heard to the person being af fected by such order .
9. The appellant claims that he is owner of the vehicle in question. However , the prosecution has failed to produce any document regarding ownership of the vehicle or establish knowledge of the appellant about the offence, which allegedly had been committed in the vehicle. The law on the subject mandated that before confiscation of the vehicle in question, learned trial Court should have determined ownership of the same with a show-cause notice to the owner and also to determine that the said owner was in conscious knowledge of the same being used in the commission of of fence, therefore, the impugned judgment/order to this extent is not sustainable in the eye of law .
10. For the foregoing reasons, this appeal is allowed, the impugned judgment to the extent of confiscation of the vehicle in question is set aside and the matter is remitted to learned trial Court with the direction to issue show- cause notice to the appellant, record evidence with regard to ownership of the vehicle and also to determine that how the same came into possession of the accused prior to the occurrence with further direction that from the evidence so recorded, if the appellant is proved to be the owner of the vehicle in question, whether he was in conscious knowledge of the offence being committed through said vehicle. Needless to mention that trial to this extent shall be deemed to be pending before the learned trial Court.