TANZIL-UR-RAHMAN, C.J.--- The -brief facts, as stated in the revision petition, are that on 7-4-1990 at about 4-00 p.m., a Truck No.BU-9887 coming from Mianwali side, driven by Amir Abdullah son of Muhammad Ameen, an employee of the petitioner, as submitted by the learned counsel for the petitioner before us, was stopped by Muhammad Aslam, S.I,/S.H.O., Police Station Kundian, alongwith other police officials. Amir Abdullah. Driver, as aforesaid, and Faizullah son of Muhammad Khan alias Muhammad Nawaz came down and Started running towards east. Raza Muhammad convict who was also sitting in the truck, as submitted by the learned counsel for the petitioner, was apprehended at the spot while Amir Abdullah and Faizullah entered the forest and so managed to run away from the spot. The truck was searched and in consequence the police party recovered a large quantity of narcotics consisting of Charas, opium and heroin and also large quantity of arms and ammunitions which were taken into possession by the police. The petitioner, two days after when the case was under investigation by the police; made an application to some Assistant Commissioner and obtained an order from him for delivery of truck to him on Supardginama by his order, dated 17-5-1990 on furnishing bank guarantee in the sum of rupees four lacs. The petitioner then filed a revision petition under section 439-A, Cr.P.C. Before the Sessions Court, Mianwali, which came up for hearing before .The learned Additional Sessions Judge, Mianwali who by his order dated 26-5-1990 while upholding the order of delivery of the said truck to the petitioner on Supardaginama modified it to the extent that the said truck may be delivered on furnishing surety bond in the sum of rupees four lacs instead of bank guarantee Consequently, the truck was handed over to the petitioner on Supardaginama on his furnishing surety bond in the sum of rupees four lacs which, the learned counsel submits, continued to be in his possession till the learned Sessions Judge, Mianwali, .Who tried the case, convicted Raza Muhammad, who was apprehended at the spot, under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979, and sentenced him to R.I., for seven years on each count. The learned Sessions Judge also ordered. The confiscation of the said truck in favour of the State by the same judgment. Now this revision petition has been filed by the petitioner challenging that part of the order which relates to the confiscation of the truck in favour of the State.
2. At the very outset, we would like to observe that the order passed by the Assistant Commissioner, Mianwali, was illegal. It has been provided under section 516-A, Cr.P.C. That when any property regarding which any offence appears to have been committed or which appears to have been used for comission of any offence, is produced before any Criminal Court during any inquiry or trial the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and if the property is subject to speedy or natural decay, may, after recording such evidence as it thinks necessary order it to be sold or otherwise disposed of.
3. It is thus, evident that the learned Assistant Commissioner had no jurisdiction in the matter to pass any order as to the delivery of the said truck as the case-property was not produced before him during inquiry or trial and there was no occasion for production of the case-property before him as the A learned Assistant Commissioner was not seized of the matter under inquiry or trial on the date of passing of the said order. So is true to the learned Additional Sessions Judge as the case appears to have been sent on 29-6-1991 by the Magistrate before whom the challan was earlier submitted by the police and appears to have been received on 13-7-1991 by the learned Sessions Judge, Mianwali as shown in the entries of the case diary, much after the delivery.
4. Learned counsel for the petitioner submits that he was the owner of the truck on the basis of the registration book issued to him under Motor, Vehicles Act which shows that the vehicle was transferred in petitioner's name on 4-12-1989. The truck, therefore, should not have been confiscated.
5. It is noticeable that the petitioner, who was well in the know of the case since the very beginning, did not make any such application before the learned trial Judge. He appears to be watching the case for its result.
6. Ch. Muhammad Ibrahim, learned counsel for the State; submits that the ownership of the vehicle at the time of seizure from the possession of the person is not of any consequence. The convict in the case mayor may not be the owner. The mere fact that the convict was found in possession of the contraband which he was transporting through the vehicle in which he was sitting gives power to the learned trial Judge to confiscate such a vehicle. Reliance is placed by him on a case reported as Saeed Shah v. The State PLD 1987 SC 288 in which 'lie vehicle was confiscated from the possession of the convict who was driver/conductor. Reliance is also placed by us on a decision pronounced by this Bench in the case of Haji Muhammad Ismail v. The State (Criminal Constitutional Revision No.37/I of 1991).
7. While reading together sections 14 and 15 of the Prohibition (Enforcement of Hadd) Order, 1979 the vehicle is liable to confiscation and a notice to the owner is to be given by the Court in respect of the said vehicle in certain situation, viz. When an offence under the Order has been committed but the offender is not known or cannot be found, or when anything liable to confiscation under the said Order and not in possession of any person cannot be satisfactorily accounted for. In the instant case the offender is not only very much known but convicted under Article 4 of the said Order and was found in possession of the vehicle, It is also pertinent to note that the said offender/convict, namely, Raza Muhammad, has specifically claimed the ownership of the truck for having been purchased by him on instalments basis he petitioner was well in the know of the proceedings and did not come forward at all during all these two years, claiming ownership.
8. In the circumstances, we find no illegality, incorrectness or impropriety in the order impugned before us by the learned Sessions Judge, Mianwali, and as such the Revision Petition is dismissed.
9. This order will not, however, debar the petitioner from seeking his remedy in a Civil Court claiming unpaid price, if any, or damages, as the case may be. From Raza Muhammad.