This is a revision, under Article 203-DD of the Constitution, against the judgment dated 16th of March, 1992, passed by the learned Judicial Magistrate, 1st Class Attock whereby he recorded the conviction of the two accused namely, Wali Muhammad son of Yar Muhammad (the driver) an; Mumtaz Ali Khan son of Rehman Ullah (the cleaner) in a case F.I.R. No.893 dated 26-12-1989, under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979, Police Station Attock Khurd and sentencing them to three year. R.I., thirty stripes and a fine of Rs.15,000 each for the recovery of 108 maunds of Charas contained in the bales of tobacco, loaded in Truck No.2859/MRB, and as a sequal to that conviction and sentence ordered the confiscation of the said Truck No.2859/MRB to State. No appeal has been filed on behalf of the convicts. The said judgment has, thus attained finality.
2. The petitioner has, by the above revision, prayed for release of the said truck to him. The grounds, as urged by the learned counsel, are two-fold namely:
(1) He is the registered owner of the truck; and
(2) No notice was given to him prior to confiscation.
Reliance is placed on Iqbal Ellahi v. The State 1987 SCMR 1274.
3. Dealing first with the Supreme Court's case, relied on by the learnt counsel, suffice it to say that the facts of the present case are distinguishable to the case cited by the learned counsel. In the cited case no nexus was shown between the car confiscated and the accused acquitted. The following; observations of Mr. Justice Shafiur Rahman, who delivered the opinion of the Court is apt to be quoted as under:-- "If the driver of the vehicle who has the charge the vehicle on behalf of the owner is found involved in transporting the narcotic certain there may be justification for such an order "
4. In the instant case, the driver and the cleaner were both found in control of the truck in question which has been confiscated. The above authority, relied upon by the learned counsel, is therefore, of no avail to him.
5. As regards the submission that the petitioner is the registered owner of the truck, this Court is least concerned with the matter of deciding title over the property which is found involved in the commission of the crime. In any case, the petitioner in his own application dated 19-3-1990. Moved before the learned Additional Deputy Commissioner (General), District Attock, has, himself stated in paragraphs 2 and 3 of the said application that:-- In view of his own statement he has divested himself from claim of real ownership as such.
6. As regards the point of notice, it may be observed that as provided in Article 15(2) of the Prohibition (Enforcement of Hadd) Order, 1979, the notice to owner is meant where the article liable to confiscation is not found to be in possession of any person or if found in possession of a person it cannot be satisfactorily accounted for. In the instant case the property was being carried in the said truck found in possession and control of the accused who have been convicted. So the offenders were not only known but were held to have committed the offence under Article 3/4. They have been proved to be in possession of the vehicle used for carrying Charas. In this respect I may also refer to a D.B. Decision of this Court of which I was a member; reported as Haji Muhammad Ismail v. The State 1992 P Cr. L J 988.
7. It is also noticeable that an application of the petitioner for handing over the Superdari of truck, moved before the Additional Deputy Commissioner, Attock, was rejected by his order, dated 9-5- 1990. A revision application moved by him against .The said order, before the learned Additional Sessions Judge III, Attock, was also rejected by the learned Judge vide his order, dated 17-9-1990.
8. For the abovesaid reasons this revision has no merit and is dismissed.
N.H.Q./740/FSC