MUHAMMAD EJAZ SWATI, ACJ. Pursuant to FIR No.31 of 2022 dated 15-06-2022 registered with Police Station RD/ANF Balochistan under Sections 6, 9 (c), 14 and 15 of Control of Narcotics Substances Act, 1997 (the Act). Besides, recovery of 144 Kg Charas from secret cavity of Mazda Truck bearing registration No.TKJ-216 (vehicle in question) driven by the accused Fida Muhammad and another person namely Asad Khan seated on the second seat of the vehicle in question. The vehicle in question was also taken into possession. The aforesaid accused faced trial and vide judgment dated 31-07-2023 (impugned judgment) were acquitted by Special Judge Control of Narcotic Substances Act Balochistan Quetta (trial court) and the vehicle in question was ordered to be confiscated in favdur of the State. The appellant is aggrieved against afore said judgment to the extent of confiscation of the vehicle in question.
2. The learned counsel for the appellant contended the appellant is bona fide purchaser of the vehicle in question from one Zia-ul-Haq through an agreement dated 19-02-2022 and the letter pad of the Truck Owner Association along with copies CNIC's. More over the said Zia-ul-Haq had purchased the vehicle in question from one Muhammad Afzal through an agreement dated 15-12- 2021. That the appellant being lawful owner had handed over the vehicle in question to the acquitted accused Fida Muhammad for plying on rent. On due time when the appellant contacted the said Fida Muhammad his mobile number was found switched off. On visiting the home of the said Fida Muhammad the appellant was appraised that the said Fida Muhammad migrated to some other place. Finally a week ago before filing of instant appeal the said Fida Muhammad came to him and informed him about registration of FIR and confiscation of the vehicle in question in favour of the State. That the appellant is real and lawful owner of the vehicle in question and the same is also registered on his name. That the vehicle in question was given to the accused driver for plying it on rent by owner/appellant and in this respect the material collected by the Investigating Officer I.O) did not show any slightest kind of suspicious brought on record that the appellant was in knowledge that the vehicle in question was used for the commission of the alleged offence. That in the circumstances of the instant case an innocent owner of the vehicle cannot be deprived, unless it is proved that owner thereof new that offence was being or was to be committed. That the trial court while passing the impugned judgment to the extent of confiscation of the vehicle in question has failed to consider the provision of Sections 12, 32 and 74 of the Act, therefore, the appellant is entitled for custody of the vehicle in question and to that extent the impugned judgment is liable to be modified. He placed reliance on cases reported in 2016 YLR 1326, 2022 PCr.LJ 666, 2008 MLD 1603, 2013 YLR 1626 and 2024 PCr.LJ 385.
3. We have heard the learned counsel for the appellant and perused the record. The relevant Section 32 of the Act provides for confiscation or otherwise of such vehicle at the conclusion of the trial which for the ready reference is reproduced as under, "32. 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 offence has been committed shall be liable to confiscation.
(2) Any narcotic drag, 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 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 thereof knew that the offence was being, or was to be, committed."
4. The proviso of Section 32 of the Act excludes certain vehicles, vessels and other conveyance from being liable to confiscation. As per above proviso unless it is proved that owner of the vehicles, vessels and other conveyance new that the offence was being or was to be committed, the vehicles, vessels and other conveyance are not liable to be confiscated. The above proviso of Section 32 reveals' that if the claimant can shows that he is lawful owner of the vehicle that he is neither the accused nor an associate or relative of the accused or an individual having no nexuses with the accused while the prosecution has to show that the applicant new that the offence was being or was to be committed. According to the above proviso a vehicle can also be released after the court is prima facie satisfied regarding the ownership of the applicant. The applicant is required to prove his ownership of the vehicle for which he is seeking its release either under Section 74 or invoking Section 32 of the Act. For release of the vehicle the applicant must be the "owner" of the vehicle. Owner is defined in Section 2 (24) of the Motor Vehicle Ordinance, 1965 (the Ordinance), means a person on whose name the motor vehicle is register and includes the transferee. The transferee must be duly registered under the Ordinance.
5. In the instant appeal the appellant besides challenging the impugned judgment dated 31-07- 2023 with regard to the knowledge of the owner of the vehicle in question also challenged the confiscation of vehicle in question by the trial court.
6. The instant appeal has been filed on 02-01-2024. The appeal under Section 48 of the Act against the findings of the Special Court before High Court is required to be filed within 60 days from the date of judgment/order in term of Article 155 of the Limitation Act, 1908. The instant appeal is barred by more than three months. In the application for condonation of delay in filing the appeal the appellant has taken following ground for condonation of delay, "That the appellant, being the lawful owner of the aforesaid Mazda Truck bearing Registration No. TKJ-216, Lasbela, had handed over the same to the acquitted accused Fida Muhammad for plying the same on rent. On due time, when the appellant contacted the said Fida Muhammad, his mobile number was found switched off. On visiting the house of the- said Fida Muhammad, the appellant was apprised that the said Fida Muhammad had migrated to some other place. Hence the appellant remained completely unaware about his Mazda Truck as well as about driver Fida Muhammad. Finally, a week ago. the same Fida Muhammad came to him and informed him about registration of FIR against him under CNS Act and confiscation of the Mazda Truck in favor of state. Since the appellant remained unaware about the registration of FIR during pendency, of the case, despite he tried his level best to trace out the said Fida Muhammad for getting the payment in respect of rent, hence, he could not claim the title of the Mazda Truck in question during the trial of the case or could file the appeal on time."
7. To support his above contention neither any agreement for plying the vehicle in question on rent to the accused Fida Muhammad has been filed nor any supporting documents in this respect has been mentioned in the application. Moreover, no affidavit of the said accused Fida Muhammad, is annexed along with the application, therefore, the appellant has failed to substantiate his contention with regard to condonation of delay in filing of the appeal, hence the reasons given by the appellant in his application for condonation of delay is not much consequence nor each day delay has been sufficient explained by the appellant. In case title Sajid alias Baba v. the State (2010 SCMR 1007), the Honorable Supreme Court of Pakistan while declaring condonation of delay observed as under, "The appellant has filed an application for condoning the delay on the ground that he had asked his relatives to file the appeal from outside, but they did not do so because of poor monetary position, therefore, when he came to know that no appeal was filed then he has filed the appeal.
No poor whatsoever has been filed to substantiate his plea as such he has failed to prove his plea.
The ground is insufficient to condone the delay. Hence, the appeal is time barred.
Consequently, the appeal has no merits and time barred; therefore, the same is dismissed."
8. In the instant appeal the appellant has failed to put satisfactory explanation for condonation of delay in filing the appeal before this Court.
9. Besides, the appellant has claimed to be owner of the vehicle in question which he allegedly purchased from one Zia-ul-Haq through an agreement dated 19-02-2022 and in this respect also relied upon letter pad of Truck Owner Association along with copy of the CNIC's and said Zia-ul- Haq had purchased the vehicle in question from one Muhammad Afzal, through an agreement dated 15-12-2021. The vehicle in question is registered on the name of one Muhammad Afzal son of Zakria. The alleged agreements relied upon by the appellant is not a valid document of title and it does not transfer ownership of a vehicle in term of Ordinance, therefore, the appellant cannot be given license of ownership on the basis of a photocopy of alleged agreement obtained on Rs.150/- stamp paper. He has failed to support his contention with regard to ownership of the vehicle through any valid documents, therefore, could not fulfill the requirement laid in proviso to Section 32 of the Act. Reliance in this respect is to be placed to case titled Amjad Ali Khan v. The State and others (PLD 2020 SC 299), wherein the Honorable Supreme Court of Pakistan observed as under, "Coming to the facts of the present case, the first and the foremost condition is that the petitioner must be the "owner" of the vehicle. "Owner" is defined in section 2(24) of MVO to mean a person in whose name the motor vehicle is registered and includes the transferee. Transferee must be duly registered under MVO. In the present case, the petitioner moved an application for seeking superdari of the Vehicle on 20.11.2015, described himself as the owner of the Vehicle, but at the time, he only had an open transfer letter. An open transfer letter is not a valid document of title and it does not transfer ownership of a vehicle in terms of MVO. Subsequently, the Vehicle was duly registered in the name of the petitioner on 21.01.2016. This was too late as at the time of alleged commission of the offence, the seizure of the Vehicle and the registration of the criminal case on 20.08.2015 the petitioner was not the owner of the Vehicle. An applicant must be the owner of the vehicle prior to the commission of the offence. The registration certificate of the Vehicle shows that the original owner of the Vehicle was Muslim Khan, who sold the Vehicle to Asif Kamal and then finally the Vehicle was transferred in the name of the petitioner on 21.01.2016. Asif Kamal, was the owner of the vehicle at/the time of the offence, but did not approach the court to seek release of the Vehicle. On 20.08.2015, when the petitioner made application for superdari of the Vehicle, he was not the owner of the Vehicle and therefore, does not pass the requirement laid down in proviso to section 32 of CNSA."
10. In the instant case registration certificate of the vehicle shows that the original owner of the vehicle was Muhammad Afzal son of Zakria and the appellant has failed to establish his ownership of the vehicle in question, therefore, the proviso to Section 32 of the Act is not attracted in favour of the appellant.
In view of above, the Criminal Appeal No.09 of 2024 is dismissed in limine.