' HAMID SAEED MALIK, J.--- In this Constitutional petition, the writ petitioner has questioned the orders of the confiscation of his Flying Coach vehicle bearing Registration No,PRO-5327 under section 157(2) of the Customs Act, 1969 by the concerned forums of the Customs Authorities including the order, dated 13-10-1994 passed under section 517 of the Criminal Procedure Code by the learned Special Judge, Customs, Taxation and Anti-Smuggling, Peshawar.
2. Brief facts of the case are that Flying Coach bearing Registration No,PRO-5327 was stopped near Army Supply Depot at G.T. Road by the customs staff for checking wherein heroin powder was detected and for detailed search the said vehicle alongwith its driver, cleaner and all the passengers' was taken to the office of Mobile Squad Nowshera. It was during the course of such through search that 6.850 Kgs. Heroin powder and 48 grams Charas were recovered from the secret cavities of the vehicle. Accordingly, besides the driver and cleaner three other passengers were also arrested for sumuggling the narcotics and a case under section 156(1)(89) read with section 2(S) of the Customs Act, 1969 was registered against them.
3. The petitioner for the purpose of obtaining custody of the vehicle applied to the Deputy Collector Customs, respondent No,3, on the ground that he is the lawful owner of the vehicle in question and that the said vehicle was purchased for him by his parents for the purpose of meeting his educational expenses because he is a student of the Liaqat Medical College at Hyderabad (Sindh).
The request of the petitioner was turned down mainly on the ground that he is not owner of the vehicle and further that the contraband narcotics had been recovered from the secret cavities of the vehicle for which the driver and cleaner including the owner of the vehicle are responsible. The appeal filed by the petitioner on the same grounds was also rejected by the Collector of Customs (Appeals), respondent No,2, vide order, dated 8-11-1993. The petitioner also moved a revision petition before the Government of Pakistan and the Government of Pakistan in the Central Board of Revenue vide order, dated 29-5-1994 rejected the revision petition. Thereafter, the petitioner invoked the Constitutional jurisdiction of this Court through Writ Petition No,876 of 1994 but the same was later on withdrawn for the reason that the petitioner wanted to avail his remedy by filing a petition before the learned Special Judge Customs, under section 517, Cr.P.C. The learned Special Judge Customs vide his order, dated 13-10-1994 dismissed the petition with the following observations:-- "Disposal of vehicles and other dutiable goods liable to payment of customs duties and fines is job of the customs department/adjudication officer and the appellate forums above him under section 157 of the Customs Act, 1959 and this Court is not instrumental either in disposal of vehicles or other goods liable to payment of customs duties, taxes and fines."
' Hence this writ petition.
4. We have heard the learned counsel for the parties and have also perused the material placed on the file of this writ petition.
5. Admittedly, the petitioner is the owner of the vehicle and right from the start his stand was that he has no connection whatsoever with the alleged offence because he is a student studying at Liaqat Medical College, Hyderabad. As against this, the customs authorities were of the view that the contraband narcotics had been concealed in a secret cavity which could only be possible through the driver and cleaner of the vehicle, hence the connivance of the owner was there.
6. From the statements recorded by the Customs authorities, it is clear that the contraband narcotics were recovered from the rear seat of the vehicle on the right side from inside the carton below the glass-sheet window of the vehicle and which carton could have been easily removed through a small screw driver and even through nails of the fingers. It is also in the recovery memo.
Prepared by Muhammad Iqbal, Inspector, Customs that from amongst the three passengers one had thrown a screw driver on the ground and it was the driver of the vehicle on whose hue and cry the attention of the custom staff was diverted to the act done by one of the passengers and the said screw driver was then taken into possession. In this view of the record, the customs authorities were, under the law, required to have satisfied themselves about the alleged connection of the owner of the vehicle in the commission of the offence before passing the impugned orders of confiscation of the vehicle. Section 178 of the Customs Act provides as under:- "178 Punishment of persons accompanying a person possessing goods liable to confiscation.--- If any two or more persons in company are found together and they or any of them, have goods liable to confiscation under this Act, every such person having knowledge of this fact is guilty of an offence and punishable in accordance with the provisions of this Act as if goods were found on such person."
This section corresponds to section 34, P.P.C. And through the provisions of this section even in absence of the owner, he can be held guilty of an offence provided such owner is in the knowledge of such fact. According to the well-established principles of law, no person can 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. Proving of knowledge of a persons/owner not present in the vehicle obviously requires an enquiry/investigation which is totally lacking in this case. It is also well-settled principle that the nature of the proceedings before the adjudicating authorities have been termed as quasi-judicial. Furthermore, the words "shall also be liable to confiscation" used in section 157(2) of the Customs Act does not mean "liable to confiscation" automatically and the august Supreme Court of Pakistan in the case reported as Haji Abdul Razzak v. Pakistan through Secretary Ministry of Finance, Islamabad PLD 1974 SC 5 has also made the following observations:- - "Conveyance used in removal of contraband goods Confiscation of---Vehicle used in removal of goods---Not liable to confiscation automatically---Words "shall in like manner be liable to confiscation"- Do not mean 'shall be confiscated'. Discretion given to authorities to confiscate but discretion has to be exercised on sound judicial principles---No indication on records that owner of vehicle was involved---Confiscation of vehicle, in circumstances, held, unlawful."
Though all the forums below have not denied the factum of absence of the owner from the scene including the fact of his studentship at Liaqat Medical College, Hyderabad, yet no forum has tried to record some evidence for establishing this important aspect of the case as required by the -law.
They have simply placed reliance on the fact that the driver and cleaner of the vehicle were prima facie involved in the commission of the offence.
7. We are, therefore, of the view that in this case the adjudicating authorities have passed the impugned orders merely on presumptions without any cogent reasons whereas the circumstances of the case were of such a nature which could only lead a prudent mind to the conclusion that the owner being a student at Liaqat Medical College, Hyderabad had no connivance with the driver or cleaner of the vehicle or for that matter the guilty knowledge of the fact. Our this view also gets support from the fact that the driver and cleaner of the vehicle have been acquitted of the charges by the learned Special Judge, Customs, whereas the three passengers of the Flying Coach have been convicted for the offences charged with. For the offences committed by some passengers of a vehicle, the owners of the vehicle in no way can be held responsible without first establishing his guilty knowledge of the offence committed. With the acquittal of the driver and cleaner, the alleged connection of the owner with the commission of the offence, if any, has also now disappeared and, therefore, the case in hand is fit for interference for the reasons stated above.
8. Resultantly, the writ petition is accepted, the impugned orders are set aside and the vehicle Flying Coach bearing Registration No,PRO-5327 is ordered to be returned to the petitioner/owner forthwith.