One Mubashar Hassan son of Muhammad Yusuf, aged 30 years, resident of Gakhar Mandi, District Gujranwala, was tried by a learned Magistrate Section 30, Gujranwala, under sections 304, 337 and 279, Pakistan Penal Code. The allegation against the said Mubashar Hassan was that on 28th September, 1982, he was driving Wagon No, GAA-9484, which was full of passengers, rashly and negligently. On account of his rash and negligent driving, the wagon struck against Car No, GAB- 6262, coming from the opposite direction. As a result of this accident, the car got smashed and the two occupants of the car, namely, Ahmad Nadeem 22 and Imran Saleem Tarar 18 lost their lives.
Occupants of the wagon were also injured. It was also alleged that Mubashar Hassan aforesaid did not possess a valid licence for driving a vehicle carrying passengers and that his licence was valid only for driving a light vehicle without passengers.
2. At the conclusion of the trial, the learned trial Magistrate, vide his judgment, dated 13th September, 1983, convicted Mubashar Hassan under section 304, Pakistan Penal Code, on two counts, i. e. For causing deaths of Ahmad Nadeem and Imran Saleem Tarar. On both the counts, the convict was sentenced to six years' R. I. And a fine of Rs, 5,000 or in default to one year further R.
I. It was also directed that he would pay Rs, 20,000 as compensation to the legal heirs of the two deceased in equal shares. In default of payment of the amount of compensation, the convict was directed to suffer further R. I. For six months.
3. While convicting Mubashar Hassan and passing the aforementioned sentences, the learned trial Magistrate made the following observations in regard to Wagon No, GAA-9484, which was being driven by the convict at the time of accident :- "As owner of the Wagon No, GAA-9484 involved in this case by permitting accused unauthorised driving of his transport wagon provided him an opportunity to play havoc with the lives of innocent persons found on the roads he should also suffer. Thus, wagon bearing No, GAA-9484 referred to above shall be confiscated to the State in due course."
4. The above order, regarding confiscation of Wagon No, GAA-9484, has been called in question through the present Criminal Revision Petition by Shiraz Elahi, the owner of the wagon.
5. It has been submitted in the under consideration Criminal Revision Petition that the petitioner viz. Shiraz Elahi, had nothing to do with the offence committed by Mubashar Hassan and.That he had not employed the said Mubashir Hassan as his driver and in fact he allowed Mubashar Hassan to take away his wagon on friendly basis for his personal use for a very short time on account of Eid. It has also been pleaded that during the trial of Mubashar Hassan, the wagon in question all along remained in the custody of the petitioner and on 13th September, 1983, when Mubashar Hassan was convicted and sentenced to aforementioned terms, the order regarding confiscation of wagon was passed by the learned trial Magistrate without affording an opportunity of show cause to the petitioner.
6. Under section 517 of the Code of Criminal Procedure, the Court at the conclusion of inquiry or trial in a criminal case can make such order as it thinks fit about the disposal by destruction, confiscation, or delivery to any person claiming to be entitled to possession thereof or otherwise of any property or document produced before it or in its custody or regarding which any offence appears to have been committed or which has been used for the commission of offence. In the circumstances of the under consideration case, obviously, no offence was committed in regard to the wagon in question. This wagon was not in custody of the Court at the time the impugned order of its confiscation was passed. No doubt, it might have been produced before the Court during the trial. It may be observed that Mubashar Hassan who was convicted by the learned trial Magistrate, vide his judgment dated 13th September, 1983, challenged his conviction and sentence before this Court. His conviction was altered from section 304, Pakistan Penal Code to section 304-A. Pakistan Penal Code and his sentence of six years' R. I. And fine of Rs, 5,000 on one count only was, of course, maintained. Direction of the trial Court about the payment of compensation was also not interfered with. It was thus held by this Court that Mubashar Hassan was liable for causing the deaths of the aforesaid two youngsters, namely, Ahmad Nadeem and Imran Saleem Tarar, on account of his rash and negligent act. It is, therefore, manifest that deaths of the aforesaid two deceased resulted from the rash and negligent act viz, rash and negligent driving of Mubashar Hassan, the convict, and the wagon in question cannot be deemed to have been employed as a weapon of such offence within the meaning of section 517, Code of Criminal Procedure. In Syed Razi Shah v. The State it was observed :- "In the Concise Oxford Dictionary the word 'use' has been defined to mean, 'employ for a purpose'.
In this context if the word property' occurring in the section 517 is read with the words used for the commission of any offence', it would clearly mean such property as has been employed in the commission of any offence and that could only imply an 'instrument' with which the offence was committed. The vehicle merely used for going to and escaping from the place of incident could not thus be covered within the meaning of the words 'property used for commission of any offence'."
Similar view was expressed in Syed Bahawal Shah v. The Crown .
7. In the circumstances of this case, the learned trial Magistrate, while penalising the petitioner, the owner of the wagon, by ordering the confiscation of his wagon, did not hear him and the impugned order was passed at his back without affording an opportunity of show cause to him. He has thus been condemned unheard in utter disregard of the well-established principle of natural justice, enshrined in the maxim audi alteram partem. Hi Central Co-operative Bank Ltd. Sargodha v.
Ahmad Bakhsh it has been held by the Supreme Court of Pakistan :-1 2 3 "The ordinary principle is that when no offence has been proved or appears to have been committed with regards to the property required to be disposed of under subsection (1) of section 517 of the Code or if the property has not been used in connection with any offence, the same should be restored to the person from whom it was taken, unless there are special circumstances which would justify the adoption of a different course."
It was further observed in this case that Court's power to dispose of any property under section 517, Code of Criminal Procedure, is discretionary but this discretion of the Court should be exercised according to the sound judicial principles and not arbitrarily of fancifully. In Criminal Miscellaneous Petition No, 733 of 1943, decided by Kuppuswami Ayyar, J, on 13th September, 1943 In re : Abdul Azee's the accused was charged under section 65 of the City Police Act, in connection with some hides which he was found carrying in a cart. He was charged only in respect of the hides and not in respect of the cart, but all the same the Magistrate directed the confiscation of the cart as well. The High Court, however, held that the offence being only in respect of the hides there was no justification for passing an order, in respect of the cart, confiscating it. The only order that ought to have been passed was an order directing the return of the same to the accused from whose possession it was seized.
8. In the under consideration case also, Mubashar Hassan has been convicted on the ground of rash and negligent driving and, therefore confiscation of the petitioner's wagon which he was driving at the time of occurrence, is not justified.
9. The learned Additional Advocate-General has opposed the instant Criminal Revision Petition and alleged that the petitioner had entrusted his wagon to a person who had no valid driving licence for driving the same. The learned Magistrate, therefore, has rightly exercised jurisdiction under section 517, Code of Criminal Procedure, whereby he has ordered the confiscation of the wagon.
10. It is a common ground between the parties that Mubashar Hassan, at the time of occurrence, held a driving licence for driving a light vehicle. A wagon like Wagon No, GAA-9484 is a light vehicle.
He could, therefore, lawfully drive such a vehicle on the authority of the licence held by him at the time occurrence. He was, however, carrying passengers in this wagon at the relevant time and the terms of his licence did not permit him to drive a vehicle carrying passengers. The owner of the wagon cannot be burdened with the knowledge that Mubashar Hassan, after borrowing the vehicle from him would carry passengers in it against the terms of his licence. In these circumstances, the petitioner cannot be held liable for the violation of the terms of the licence on the part of Mubashar Hassan. The learned Additional Advocate-General has, however, not been able to cite a single case of vehicle accident, resulting into loss of human life, in which the bus or motorcar involved in the accident was ordered to be confiscated.
10-A. In the light of the above discussion, it is concluded that the learned trial Magistrate has not properly exercised his discretion under section 517, Code of Criminal Procedure, while ordering confiscation of Wagon No, GAA-9484 without affording opportunity of show cause to th petitioner.
11. In this view of the matter, the Criminal Revision Petition I allowed, the order of the trial Magistrate, directing confiscation of Wagon No, GA A-9484 in favour of the State, is set aside and the said wagon is directed to be restored to the petitioner. 1971 P Cr. L J 19 PLD 1951 B J 57 PLD 1970 SC 343 AIR 1944 Mad. 59 4 1 2 3 4