' ABDUL RAZZAQ A. THAHIM, J.--- This revision application under Article 203-DD of the Constitution of Islamic Republic of Pakistan (1973) has been filed by State through Advocate-General, Sindh against, the order dated 1112-1989 of Additional District Magistrate, Khairpur.
2. The relevant facts for disposal of this criminal revision are that on 31-10-1988, Assistant Excise and Taxation Officer, Divisional Intelligence, Sukkur Division and his party intercepted truck No,PRJ-1191.
The truck was searched, from which 1160 kilograms of Charas was secured. Such Mashirnama was prepared and case was registered under Article 3/4 of the Prohibition (Enforcement of Hadd)
Order, 1979. From the dash board, a registration book and route permit in the name of Haji Faqir Muhammad son of Muhammad Hussain Pathan of Zeba, Tehsil Charsadda, District Peshawar were found. At the time of search no one was found sitting in the truck as such challan was filed in the Court of Additional District Magistrate, Khairpur on 10-9-1989 against absconder Haji Faqir Muhammad. From the truck 380 Crates of Orange (Malta) were also secured. The complainant filed an application on 31-10-1988 that above articles were perishable, therefore, necessary orders be passed to auction the same. The Additional District Magistrate by an order, dated 31-10-1988 authorised Mukhtiarekar, Khairpur to auction the crates of orange and deposit sale proceeds in the Court.
3. On 11-12-1989 one Zair Rehman son of Lal Mast Shah Pathan filed an application under section 516-A, Cr.P.C. In which he requested that the interim custody of the truck may be given to him as he is owner of the truck which he purchased from one Faqir Muhammad Pathan on instalments. In support he produced affidavit of Faqir Muhammad duly attested by Abdul Hakim Bhatti, Notary Public, Karachi. On the very day i,e, 11-1.2-1989, the Additional District Magistrate ordered that the truck No,PRJ 1191 may be given on Superdari to the applicant on production of National Identity Card and furnishing surety to the extent of Rs,2,00,000. Syed Mir Dino Shah Rizvi filed solvency certificate and intended to stand surety. The Additional District Magistrate on 16-12-1989 directed Mr. Khaliqdad Durani, Excise, Sukkur to restore the truck to its owner Zair Rehman son of Lal Mast Shah resident of Peshawar. The AETO (DIO), Sukkur by a letter dated 17-12-1989 directed Zair Rehman to produce original Identity Card before the truck is handed over to him. The respondent Zair Rehman again appeared before the Additional District Magistrate, Khairpur, with an application that Assistant Excise and Taxation Officer was avoiding to hand over truck to him and issued threats that he would be implicated in false cases. Additional District Magistrate on getting this application directed Khaliqdad Durani to attend his Court on 23-12-1989. In the meanwhile the District Public Prosecutor, Khairpur filed revision application under sections 435, 439-A, Cr.P.C. In the Court of Sessions Judge, Khairpur on behalf of Khaliqdad Durani, AETO. He also took one of the ground in para. 4 of the application that the truck was released in favour of Zair Rehman without hearing the prosecution side. The learned Sessions Judge, Khairpur returned the revision application to the petitioner on the point of jurisdiction, therefore, learned Advocate-General Sindh has filed this Constitutional petition under Article 203-DD in this Court. Revision was admitted and notice was issued to the respondents. The report was also called from the Additional District Magistrate, Khairpur.
4. The matter came for hearing on 10-7-1990 when Mr. K.M. Nadeem, Assistant Advocate-General, Sindh sought time. Today he has stated at the Bar that notice could not be served on the respondents as Faqir Muhammad accused has already absconded while the Advocate of Zair Rehman refused to receive the notice as whereabout of Ziar Rehman not known. In the statement filed by Assistant Excise and Taxation Officer it has also been stated that respondent Zair Rehman was directed to appear before 7-12-1989 and to produce the Identity Card but thereafter, he never appeared and could not be served.
5. We have, therefore, heard Mr. K.M. Nadeem, learned Assistant Advocate-General. It is argued that order of. The Additional District Magistrate is perverse, without jurisdiction and is not in accordance with the law. It is also submitted that Additional District Magistrate had no basic knowledge of law, therefore, serious note be taken by this Court.
6. This is a case in which 29 maunds of Charas- was secured from the truck. The registration book and route permit were found in the dash board which are in the name of Faqir Muhammad but no one was arrested on the spot. The Excise Police during investigation could not arrest Faqir Muhammad and submitted challan in which Faqir Muhammad has been shown as absconder. The Additional District Magistrate, Khairpur has taken the cognizance of the case against Faqir Muhammad and issued non-bailable warrants by an order, dated 13-11-1989 through Home Department, Government of Sindh. The case was fixed for hearing on 12-12-1989. In the meanwhile one day before the date of hearing an application under section 516-A, Cr.P.C. Was moved on behalf of Zair Rehman for restoration of truck on Superdnama to Zair Rehman. The Additional District Magistrate without issuing notice to the District Public Prosecutor or P.S.I. Or waiting for date of hearing which was fixed on next day passed an order. This is a State case and all such cases are to be conducted by representative of the State and there are settled judicial principles that in all matters the interested parties should be given chance to appear and argue the case. The reasons best known to the learned Additional District Magistrate he hurriedly on the very day passed order when he had a knowledge that truck was involved in narcotics case in which 29 maunds of Charas was involved. He has specifically mentioned in the order that the truck was registered in the name of Faqir Muhammad who is owner and absconder on the basis of documents recovered from the truck. He has further stated in the order as under:-- "Since the applicant admits to have purchased the truck on instalment basis and has produced such agreement, he is to be treated as owner of the said truck. Accordingly it is ordered that the truck No,PRJ 1191 may be given on Superdnama."
7. While passing this order he has ignored the provision of law that as being a Magistrate when he came to know that the owner of the truck has appeared and from the truck of Zair Rehman a huge quantity of Charas was secured and Zair Rehman had taken the responsibility of being owner of the truck, therefore, it was for the Zair Rehman to explain as to why huge quantity of Charas was transported to his truck. As such Zair Rehman was prima facie as accused of the offence provided he may furnish satisfactory explanation at the proper stage. The cognizance of case was taken by the Additional District Magistrate under section 190(a), Cr.P.C. He could have taken the cognizance against Zair Rehman who voluntarily appeared and claimed the truck which was used in transporting the Charas. For this I referred to section 190(c) which reads as under:-- "Upon information received from any person other than a Police Officer, or upon his own knowledge or suspicion, that such offence has been committed."
' The cognizance could have been taken by the Additional District Magistrate, Khairpur. He has ignored this provision and did not take cognizance on the contrary handed over truck to him.
Reference could also be made to section 351, Cr.P.C. The learned Additional District Magistrate has not taken care of all these relevant provisions of the law. The vehicle which was secured by the Excise and Taxation is liable to be confiscated. There is specific provision under section 517, Cr.P.C.
But in spite of that under Article 14 of the Prohibition (Enforcement of Hadd) Order, 1979 is most relevant which reads as under:-- "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 along with the receptacles, packages, coverings, animals, vessels, carts or other vehicles, used to hold or carry the same."
8. From the very face of it prima facie, subject to the decision of the Court, the narcotic was found in a truck which is liable to be confiscated when accused absconded. The Magistrate could only order under section 516-A, Cr.P.C. For the proper custody of the property which is used in the commission of offence. If the property is subject to the speedy or natural decay the Court may after recording such evidence pass necessary order if articles are to be sold or otherwise dispose of. Therefore, the observation made in the report that there is no express provision of issue of notice is not correct. In respect of speedy disposal of property evidence is necessary but in case of property which is not perishable, the prosecution has not been heard. We do not agree with the Additional District Magistrate, Khairpur. There was no reason to pass order on the very day when case was fixed on the next day when parties were supposed to be present for descretion is to be used judiciously not arbitrary. The documents produced by Zair Rehman are subject to dispute as registration and route permits stand in the name of Faqir Muhammad. We have taken serious note of the proceedings. The impugned order gives bad smell and we agree with the learned Assistant Advocate-General that order is perverse and illegal. We, therefore, set aside the impugned order.
9. The manner in which this matter has been dealt with by the Additional District Magistrate (Muhammad Bakhsh R. Soomro) and specially in narcotic case, we feel that this Magistrate is not fit to hold the charge of judicial post. Before any action is taken by the Government, we recommend that jurisdiction of narcotic cases be immediately withdrawn from (Muhammad Bakhsh R. Soomro), Additional District Magistrate, Khairpur. Copy of this order be sent to Secretary, Home Department, Government of Sindh, Secretary, Government of Pakistan, Ministry of Interior (Narcotic Division) and Chief Secretary to the Government of Sindh for information and appropriate action.
Revision . #EndJudgment