1. SHAFIUR RAHMAN, J.--Leave was granted to the appellant, the owner of a car which was confiscated under Article 14 of Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the Order), to examine whether in view of the law laid down in Haji Abdul Razzak v. Pakistan PLD 1974 SC 5, such a confiscation could not be ordered.
2. On the 26th of October, 1985, Muhammad Afzal, A.S.I., C.I.A. Staff, Rawalpindi received the information that heroin was being transported. He immediately constituted a raiding party and took up position near Police Station, Rawat on the G . T . Road. At about 1-30 p. m. a car arrived from Rawalpindi side. It was stopped. One Majid was driving the car and three other passengers were inside the car. On search, a bag under the seat occupied by Patras accused was found to contain one kilogram of heroin. It was taken into possession. The sample taken showed it to be contraband heroin. All the four occupants of the car were arrested and sent up for trial under Article 14 of the Order. According to the statement of Naseer, one of the occupants, the heroin recovered belonged to him. He had placed it under the seat and that the other occupants of the car had no knowledge of it. Naseer was convicted and sentenced. As regards the other occupants of the car and the car itself, the following order was passed by the trial Court:- "The recovery against the remaining three accused is not established. They were only accompanying the accused in the car. In view of the statement of Naseer Ahmed accused, the charge against them is not established. So they are acquitted of the charges against them. They are in custody. They will be released forthwith if they are not required in any other case. The heroin shall be destroyed. The articles recovered from the personal search of the accused shall be restored to ZVI them, as they had nothing to do with the case after the decision of appeal or revision, if any. The car P-3 was used to carry the heroin. It is liable to be confiscated. So the car P-3 is confiscated to the State under Article 14 of the Prohibition (Enforcement of Hadd) Order, 1979.
3. The owner of the car i.e. The appellant filed a revision against confiscation of the car which was dismissed in limine by the Federal Shariat Court observing as follows:- "Since the conviction of the persons who were found transporting narcotics in this car has been maintained hence the order of the confiscation under Article 14 of the Prohibition (Enforcement of Hadd) Order, 1979 of car by the learned trial Judge appears to be legal. We find no illegality, irregularity or impropriety in the impugned order."
4. Sardar Muhammad Ishaq Khan, Advocate, the learned counsel for the appellant, has contended that liability to confiscation does not involve automatic or necessarily an order of confiscation.
5. There must be some nexus established between the vehicle's owner and the offence, and in any case direct or indirect implication of the owner in the offence must be shown or be evident. The learned counsel has placed reliance on the decision in the case of. Haji Abdul Razzak. The judgment of the trial Court clearly gives the impression that the liability to confiscation was alone made the basis for an order of confiscation of the vehicle. This could not be done without further examining the propriety and the justification for such an order, particularly so, when all the other occupants of the car except Naseer were positively found to be neither in possession of the objectionable article nor involved in its transportation. The Federal Shariat Court in rejecting the claim of the owner appears to have misread the record inasmuch as it observed "since the conviction of the persons who were found transporting narcotics in this car has been maintained, hence the order of confiscation appears to be legal". If the driver of the vehicle who has the charge of the vehicle on behalf of the owner is found involved in transporting the narcotic certainly there may be justification for such an order. But where one passenger in a vehicle secretly carries narcotic without involvement, direct or indirect, of others either present in the vehicle or in its control and charge, such an order as was passed would) manifestly be inconsistent.
6. Article 14 of the Order provides as follows:---- "In any case in which an offence has been committed under this Order, the intoxicant, still, utensil, implement or apparatus in respect or by means of which the offence has been committed shall be liable to confiscation alongwith the receptacles, packages, coverings, animals, vessels, carts or other vehicles used to hold or carry the same."
7. The law has the same language as was considered in Haji Abdul Razzak's case. The law was laid down in the following words:- "If the words "liable to confiscation" give a discretion to the confiscating authority to deprive a person of his property, then it follows that this discretion must be exercised upon the principles of natural justice; that is to say, the persons sought to be deprived of the property must be given notice to show cause, they must be furnished with adequate opportunity of putting forward their point of view and the same must receive due consideration. Furthermore, according to one of the principles now well-accepted, no person should be deprived of his property by way of penalty unless it is clear that he is in some measure responsible for assisting or furthering the commission of the offence committed."