IQBAL AHMED KASI, J. Through the instant appeal, appellant Abdul Hakeem son of Haji Muhammad Yaqoob, has challenged the validity of the order dated 30.05.2023 ("the impugned order") passed by the Special Judge, CNS (Balochistan), Quetta ("the trial Court"), only to the extent of confiscation of vehicle/tanker i.e. Nissan Oil Tanker, bearing Registration No.TLC-325 ('the vehicle/tanker in question').
2. The facts of the case arising out of the instant appeal are that a case vide FIR No.13/2021 was lodged at P.S ANF, Quetta with the allegations that the high-ups of ANF received spy information on 30.01.2021, that accused Raheem-ud-Din being involved in interprovincial narcotics smuggling and today at any time, he is going to smuggle narcotics in his Nissan Oil Tanker from Gulistan to Karachi. On that information, Haider Ali, I.P. of Police Station ANF, Quetta along with other officials of P.S ANF under the supervision of A.D, Habib Uliah Khan and informer reached Baleli bypass near Pyala Hotel, Chaman Road Quetta. At about, 05:45 a.m. on the directives of high-ups started secret surveillance of heavy vehicles coming from Chaman side, after 50 minutes an oil tanker bearing registration No.TLC-325 was seen by them coming from the Chaman side. The said oil tanker was intercepted by them on the pointation of the informer, the driver of said tanker disclosed his name as Raheemud-Din and on the query about narcotics, the accused Raheem-ud-Din with hesitation admitted the presence of narcotics in the rear side tank of the said oil tanker. The passengers of the vehicles passing by the road refused to become witnesses for search, then Constable Gulzar Ahmed and Muhammad Muddasir were nominated as witnesses, the disclosure and pointation memo of the accused was prepared in the presence of witnesses, on the pointation of the accused Raheem-ud- Din the rear side tank was opened with the help of tools, after checking the tank, 3 plastic sacks pink colour were recovered, the sacks were checked in presence of witnesses from one sack 25 packets baked charas were recovered, after weighing, each packet was 1 kg total 25 Kg, while from the other two sacks raw chkras were recovered, after weighing, each sack was 20 kg total 40 kg. I.P. Haider Ali separated 20/20 grams of baked charas from each recovered packet for analysis sealed the same along with samples of seal in parcels Nos. 1 to 25, while the remaining 25 packets were assigned numbers 1 to 25, sealed the same along with sample of seal in same sack by preparing parcel No. 26, while 50/50 grams raw charas were separated from the other two sacks for analysis sealed the same along with samples of scale in parcels Nos. 27 and 28, while the remaining raw charas were sealed in same sacks by preparing parcel Nos. 29 and 30. The charas parcels were secured through a seizure memo in the presence of witnesses. The accused Raheem- ud-Din was arrested and his personal search was carried out, the articles recovered from the possession of the accused were seized through a separate seizure memo. The I.P. Haider Ali in the presence of witnesses secured the oil tanker through a separate seizure memo, the murasila was prepared and then I.P. Haider Ali along with the accused, case property narcotics parcels, an oil tanker, the articles recovered from the possession of accused and raiding party reached P.S ANF, Quetta, where A.S.I Muhammad Ramzan on the murasila of I.P. Haider Ali registered FIR No 13/2021 at PS ANF, Quetta against accused under Section 9 (e) of the Control of Narcotic Substances Act, 1997 and 3/4 AML Act 2010 ("the Act of 1997 and AML Act, 2010").
3. The tanker in question has been taken into custody by the Police Officials of Police Station, ANF, Quetta vide the FIR lodged by the complainant Inspector Haider Ali, P.S. ANF Quetta in case title State v. Raheem-ud-Din. The tanker in question is the case property, which was been taken in custody from the accused nominated in the above-mentioned FIR and thereafter, the trial conducted by the Special Court CNS, Quetta and the accused was acquitted of the charge vide judgment dated 14-12-2022, but the tanker in question bearing registration No.TLC-325 was confiscated in favour of State.
4. Earlier to this, an application for superdari was filed during the trial before Special Judge CNS Quetta, which was rejected vide order dated 30-12-2021.
Since, the accused has been acquitted and the matter is concluded and the tanker in question is no longer required, as such the appellant filed a subsequent superdari application on fresh grounds. After hearing the arguments, the learned trial Court rejected the application vide impugned order dated 30-05-2023, hence this appeal.
5. Learned counsel for appellant inter alia contended that the impugned order dated 30.05.2023 passed by the trial Court is contrary to law and facts; that the appellant is the real and recorded owner of the tanker in question; that the material available on record did not prove that the tanker in question has been used in the commission of the alleged offence.
6. Despite service of notice and repeated calls, Special Prosecutor ANF did not appear.
7. We have heard learned counsel for the appellant and perused the available record appended with the appeal with their able assistance.
8. We have noted that the FIR No.13/2021 dated 30.01.2021 was registered at Police Station ANF, District, in respect of offence under the Act of 1997 and AML Act, 2010 and during investigation of the case, the tanker bearing registration No.TLC-325 was taken into possession by the Investigating Officer. The accused, namely, Raheem-ud-Din was arrested during the investigation of the case and allegedly narcotics were recovered from secret cavities in the tanker in question.
The appellant filed an application under Section 516-A, Cr.P.C. for releasing tanker in question on Superdari being the real owner of the tanker in question. The application filed by the appellant was rejected by the trial Court. The question to be determined in this appeal is whether the tanker in question bearing registration No.TLC-325 custody could be handed over to the appellant. The phraseology employed in Section 32 of the Act of 1997 is very plain. It clearly lays down that whenever an offence has been committed, which is punishable under this Act, the narcotic drugs 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, 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 Act of 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)
9. The ownership of the appellant, namely, Abdul Hakeem regarding the tanker bearing registration No.TLC-325 is admitted and also proved by the available documentary evidence. The appellant was not named as an accused in FIR No 13/2021 registered at Police Station ANF, District Quetta, in respect of the offence under Section 9 (c) of the Act of 1997 and AML Act, 2010. The Investigating Officer of the case did not collect any evidence during the investigation of the case that the appellant was in knowledge of the fact that the tanker in question was to be used by the accused person for carrying and transporting narcotic substances. In the absence of such evidence, the appellant could not be deprived of the custody of the tanker in question owned by him and the tanker in question could not have been ordered to be confiscated. Reliance is placed on the case of "Allah Ditta v. The State" 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 the narcotics, with a proviso that the vehicle shall not be confiscated 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,"
10. It is settled law that the vehicle in question can be seized under the Act of 1997 and AML Act, 2010 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. Thus, for what has been discussed above, the impugned order dated 30.05.2023 passed by the trial Court is set aside to the extent of confiscation of tanker in question bearing registration No.TLC-325.
As a sequel of the same, the instant appeal is allowed and the tanker in question bearing registration No. TLC-325, engine No.NE6-00-7616, chassis No.04240, model 1997 is directed to be handed over to its original owner, after due verification by the concerned SHO.