1. ' This criminal revision application has been filed challenging the orders passed by the learned Sessions Judge, Nawabshah on 30-5-1989 whereby the appeal filed by the present applicant under section 520, Cr.P.C. Has been dismissed. Briefly the facts are that on 2-2-1988, the Excise Police had detected a truck bearing registration No,6867 Quetta carrying charas on the National Highway at Kandiaro while it was going to Karachi from Quetta and 120 Kilograms of charas was secured from the said truck. The driver of the truck namely Muhammad Jameel and cleaner namely Jumma Khan were arrested and the truck was also seized and the case was challenged before the S.D.M., Naushahro Feroze who convicted and sentenced the said driver and cleaner for offences under sections 3 and 4 of Prohibition (Enforcement of Hadd) Order, 1979 and the said truck was ordered to be confiscated under section 15(2) of the said Order and referred to the learned District Magistrate, Nawabshah for further disposal, after the period of appeal. Earlier also on 27-2- 1989 the present applicant had filed a miscellaneous application in the Sessions Court, Nawabshah for the return of the said confiscated truck to him claiming ownership of the same and the said application was rejected by an order passed on 27-3-1989 after hearing the Advocate for the applicant and D.P.P. As the said truck was found registered in the name of one Nooruddin and not in the name of the present applicant. The applicant then filed the present appeal before the Sessions Court which in fact should have been treated as an application as the same was not filed by the applicant in his own name but as an attorney of the said Nooruddin. Preadmission notice was given to the learned D.P.P. And the learned Sessions Judge after hearing the arguments from both the sides was pleased to dismiss the same and, therefore, this revision application has been filed.
2. ' I have heard Mr. Kamaluddin, learned counsel for the applicant. He has contended that the said truck originally belonged to the present applicant who had then sold the same to the said Nooruddin on instalment basis but before having paid complete installments the said Nooruddin had got the same transferred in his name. However, the present applicant again contacted the said Nooruddin who executed the General Power of Attorney in favour of the present applicant authorising him to pursue the matter legally. Learned counsel for the applicant has contended that before ordering the confiscation of the truck it was incumbent upon the trial Magistrate to have held an inquiry to determine as to whether the owner of the truck had any link or connection with the commission of the alleged offences. He has also contended that the learned trial Magistrate had passed the orders merely relying on the provisions of section 14 of the above said Order of 1979 which reads as under:--- "14. Things liable to confiscation.--- In any case in which an offence has been committed under this Order, the intoxicant, 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."
3. ' He has contended that words "liable to confiscation" as used in the section would not mean that confiscation is to take effect ipso facto but for that an inquiry is to be held and the owner of the said vehicle is to be given a notice of the same. It is conceded by the learned counsel that the said driver and cleaner were convicted and that the said conviction had not been challenged by them in any higher forum, while according to the learned counsel the order of confiscation which affects the property of the owner having been passed without notice to him amounts to violation of principle of natural justice. He has placed reliance on the case of Haji Abdul Razzak v. Pakistan through Secretary, Ministry of Finance, Islamabad and another PLD 1974 SC 5. This case was of course with regard to confiscation under Sea Customs Act but the words "liable to confiscation" used in the 2 provisions are same:- "It appears to us that there is a great deal of force in the reasoning of the learned Judge in this case. 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.
4. ' No innocent person should be unjustly punished or deprived of, his property. This was the cardinal principle which was followed by the learned Judge of the Calcutta High Court in the last mentioned case. We too think that this was the correct principle upon which the authorities should proceed."
5. ' He has also placed reliance on the case of Iqbal Elahi v. The State (1987 SCM R 1274) in support of his above contention. I am inclined to follow the principle laid down in the above-cited cases of the Hon'ble Supreme Court. Since no notice or opportunity of hearing was given to the owner of the truck which amounts to violation of the principles of natural justice, I set aside the orders of the confiscation of the truck and remand the case to the S.D.M., Naushahro Feroze, to pass a fresh order in accordance with law after giving notice and an opportunity of being heard to the owner of the truck. This revision application is allowed in the above terms.