By this petition tender Article 203-DD, of the Constitution of Pakistan, 1973, the petitioner claims the ownership of Car No. LOF-2362 involved in the commission of the offence under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as "the said Order"), and its confiscation by Kh. Mahmood Ahmad, the learned Speedy Trial Judge, Gujranwala Division, by his order dated 15-2-1992 (Trial Case No 14/J STC, dated 21-1-1992, (State v. Muhammad Arif and another) as also upheld by the Supreme Appellate Court, Rawalpindi, in Criminal Appeal No. 3 of 1992 by its judgment, dated 14-3-1992.
2. Brief facts of the case are that on 12-9-1991 during day time on raid conducted by Muhammad Saleem Inspector/S.H.O. Police Station Naushehra Virkan, District Gujranwala in the company of his subordinate staff, on spy information, upon Dera of accused persons, namely, Muhammad Arif and Muhammad Ashraf (now convicts) succeeded in recovery of heroin 1000 grams, charas 2000 grams and opium 4000 gram., from Car No. LOF-2362, being driven by the sail accused/convict and subsequently on registration of case F3.R. No. 346, dated 12-9-1991 under Articles 3 and 4 of the said Order, the accused were challaned and sent up for trial in the Court of Kh. Mahmood Ahmad, the learned Speedy Trial Judge, Gujranwala. Both the accused were found guilty under Articles 3 and 4 of the said Order and were sentenced to undergo R.I. For 15 years on each count, besides payment of Rs.25,000 as fine, in default whereof to serve out further R.1. For one year on each .Count. They were also ordered to be whipped with twenty stripes. Both the sentences recorded were, however, ordered to run concurrently. The car by means of which the contraband was being transported and recovered, was also ordered tote confiscated, and destroyed after the result of appeal. On appeal preferred by the said convicts, the Supreme Appellate Court, Rawalpindi, while upholding the conviction in Criminal Appeal No.3 of 1992 reduced the sentence of imprisonment from fifteen years R:I. To twelve years' R:I. Other sentences to remain in tact, so also the order of confiscation of the car to the Government.
3. Learned counsel for the petitioner submits that one Mowlvi Mohammad Bashir of Gujranwala is the registered-owner of the said car as per excise record, but .The petitioner is the owner de-facto having purchased the said car from the said Mowlvi Muhammad Bashir. He has produced photostat copies of the sale receipt, dated 17-8-1991 (at 7-00 p.m.), open transfer letter, dated nil, identity card of Mowlvi Muhammad Bashir and that of the petitioner and the provisional challan, dated 28-4-1991 relating to the transfer by one M. Adam in favour of Mowlvi Muhammad Bashir.
4. Learned counsel for the petitioner further submits as also stated in para. 8 .Of the petition, that "the car was borrowed (by the two accused) under the pretext of being used to carry an ailing elderly man of village Matta Virkan to Gujranwala City, which fact was brought to the notice of the S.H.O. Namely Muhammad Saleem Inspector and. The car was demanded by the petitioner for being returned to him. Initially the S.H.O. Promised to return the same but subsequently petitioner remained quiet being frightened of the case, having no concern whatsoever with the entire episode."
5. As admitted before me by the 'learned counsel, the petitioner did not make any application before the S.H.O. Or the learned trial Judge or the Supreme Appellate Court in respect of the said car.
6. Now, when the order of confiscation of the car has been passed resulting in conviction of both the accused namely, Muhammad Arif and Muhammad Ashraf as also confirmed by the learned Supreme Appellate Court as aforesaid, he has chosen to file this Revision application before this Court, challenging the abovesaid two judgments to the extent of confiscation of the car only.
7. On perusal of both the abovesaid judgments, impugned in this Revision, it appears that the contraband, that is, one kilogram of heroin, two kilograms of charas and four kilograms of opium was being transported in the car in question concealed under upholstry of the front seat of the car and in its two rear doors, which was in the control of both the accused, namely, Muhammad Arif and Muhammad Ashraf, Arif was driving the said car. Under the circumstance, the learned trial Court was justified in confiscating the car in question as provided under Article 14 of the said Order.
Reference may be made to Said Shah's case PLD 1987 SC 288, wherein it was observed that the confiscation of the vehicle "took place in the discretionary jurisdiction of the learned trial Court."
With respect, it may be added that Article 14 of the said Order provides that the vehicle etc. Used in the transportation of the contraband "shall be liable to confiscation".
8. Learned counsel next submitted that no notice was given to the petitioner which was required under Article 15 of the said Order. Reliance is placed on Akram Khan and two others v. The State 1990 SCMR 480, but the facts of the said case arc distinguishable. However, the question of notice has been discussed in detail by a Division Bench of this Court, of which I was a member, in the case reported as Haji Muhammad Ismail v. The State 1992 P Cr. L J 988. Relevant portion therefrom is reproduced as under:--- "A bare reading of the above-said provisions will show that Article 14 provides that a utensil, implement or apparatus in respect of by means of which the offence has been committed `shall be liable to confiscation' alongwith the receptacles, packages, coverings, animals, vessels, carts or any other vehicles, `used to hold or carry the same'. We are concerned with the last mentioned item i.e. Vehicle. Admittedly the bus, a vehicle, was used by means of which 47 kilograms of heroin in 47 packets hidden in the secret cavity of the diesel tank of the bus was being held and carried through the said bus. It is again a fact proved that the two accused, namely, Mir Bahadur and Ali Jan Khan were the employees of the bus owner. Whoever he may be; even if the assertion of the petitioner, for the sake of argument, is accepted that he was the owner of the bus. Article 14 of the said Order is an enabling provision to the extent that the vehicle used to hold or carry the contraband article in respect of which the offence was committed is liable to confiscation. Article 15 of the said Order however, gives the power to the Court that in any case involving anything liable to confiscation under the Order, the Court deciding the case relating to main offence of carrying the contraband article, may order such confiscation of the vehicle despite the acquittal of the person charged. It means that it is the vehicle which has been made the subject of offence even if the driver or conductor or even the owner of the bus is acquitted if the recovery is made from the bus and it is proved to the satisfaction of the Court and the guilt cannot be fixed reasonably on a particular person. Subsection (2) of Article 15 of the said Order, is to be read as an exception to the main rule provided under Article 14 read with Article 15(1) of the said Order that it relates to a situation where the offender is not known or cannot be found, or when anything liable to confiscation under the Order and `not in possession of any, person' cannot be satisfactorily accounted for, the case shall be inquired into and determined by the authority concerned who may order such confiscation. There is, however, a proviso attached to it and that calls upon such authority, to act in the following manner:---
(i) That no such order shall be made until expiration of fifteen days from the date of seizure of the things intended to be confiscated;
(ii) Without hearing a person, if any, claiming any right thereto".
As observed in para 21 of the judgment of the learned Supreme Appellate Court, Rawalpindi, in the instant case: "As has been noticed earlier, what -to talk of the two appellants claiming the car from which the intoxicants had been recovered, no one-else has claimed the same either even till date.
Muhammad Saleem S.H.O. Cannot be expected to have planted a motor car on the two appellants from his own resources only to falsely implicate them".
Further reference may be made to the following observation of the learned Supreme Appellate Court, appearing in para 17, ibid, which reads as under:--- "It is evident that on seeing the police party, both the appellants stopped the car, alighted from the same, abandoned it there and then and disappeared into the nearby paddy crop. Both of them absconded thereafter and could be arrested only on 27-9-1991 i.e. After fifteen days of the occurrence in question. This conduct of the appellants, 'coupled with the other circumstance regarding the apprehension of fourteen other persons possessed of intoxicants, from the Dera of the appellants and non-claiming of the car in question by anyone, are sufficient to prove the conscious knowledge and awareness on the part of the appellants of the presence of the intoxicants which were subsequently recovered from the said car".
9. It may further be added that the learned trial Court, in the circumstances, was not supposed to make a general enquiry as to the ownership of the vehicle when the offenders are not only known but apprehended, tried and convicted. The petitioner was in the full know of the proceedings. On his own showing, if he had any case, he should have filed an application before the learned trial Judge.
10 For the aforesaid reasons, do not feel inclined to invoke the Constitutional jurisdiction of this Court in the matter which is dismissed in limine
11. Before parting with the matter it may 6e observe that a has been noticed by this Court in several cases that the alleged owners of the vehicles used in transportation of the contraband wait for the decision of the trial Courts and if the offenders are convicted, and if appeal preferred, they wait further till the case is decided an appeal and after its ultimate decision in the matter either in this Court or the Supreme Court, they come forward with such Revision Petitions in the Federal Shariat Court claiming title in the vehicle and praying for setting aside the order of confiscation. This practice is highly surreptitious and is disapproved