This revision petition is directed against the judgment dated 8-3-1997 passed by the Additional Sessions Judge-II, Peshawar, whereby he has ordered confiscation of the vehicle/motor car bearing Registration No,PRN-6333.
2. Facts of the case in brief, are that in consequence of F.I.R. No,148 dated 26-4-1996 Police Station Pishta Khara, the petitioner was phallaned under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 on the allegation that while driving the car in question he was found in possession of two kilograms of heroin, allegedly concealed underneath the driving seat.
3. At trial, prosecution examined only three witnesses, whereafter the accused was examined under section 342, Cr.P.C. In his statement the accused denied the charge and pleaded that he was innocent. He, however, refused to lead any evidence in his defence or to appear himself as his own witness in terms of section 340(2), Cr.P.C.
4. Learned trial Court after hearing arguments of the learned counsel for the parties acquitted the accused/petitioner of the charge primarily for the reasons, that though the car in question was allegedly intercepted at a busy road near a bazar, yet no private person was associated with the investigation and that the material alegedly recovered was not properly sealed and the samples too, were not prepared in a proper manner. No identification mark was found on the packet.
Additionally, it was also observed that the recovery was not effected in the presence of the recovery memo. witness P.W. Javed, who was simply informed and asked to sign the recovery memo. by Gulzar Khan Investigating Officer. It was further observed, by the trial Court, that the samples were not sent to the Chemical Examiner by the Investigating Officer himself and that too, immediately. It was allegedly sent to FSL by Muharrir of the Police Station and that too, after a delay of 20 days. Report of the FSL was also disbelieved by the trial Court in view of the fact that it did not contain the embosing mark of the FSL. Further, it was observed that the car from which the so- called contraband material was allegedly recovered was not produced in the Court and that the Chemical Analyst was not proved, to be duly appointed and properly notified, Chemical Examiner.
Consequently, it was concluded by the learned trial Court that the prosecution has failed to prove its case against the accused, therefore, he cannot be held responsible for the offence. He as such, was acquitted of the charge.
5. I have heard learned counsel Mr. Munir Khan, appearing on behalf of the petitioner and Mr. Fateh Muhammad, Advocate, for the State and have also gone through the relevant record with their help.
6. The only contention, raised by the learned counsel appearing on behalf of the petitioner is, that after accused/petitioner of the charge of transportation or possession of any contraband material, the trial Court, under the law, was not competent to pass order for confiscation of the vehicle in question. In furtherance of his submission it was submitted by him that before passing an order for confiscation, it was obligatory for the Court to satisfy itself, that the vehicle in question was either used for transportation of the contraband material and owner thereof, in any manner, was responsible for assisting or furthering the commission of offence, so committed. In order to supplement his argument he has placed reliance on a judgment of the Hon'ble Supreme Court of Pakistan delivered in the case of Iqbal Ellahi v..The State reported in 1987 SCM R 1274 wherein the Hon'ble Supreme Court of Pakistan while relying upon the case of Abdul Razzak (PLD 1974 SC 5) was pleased to hold that "the liability to confiscation" alone cannot be made basis for "confiscation of the vehicle" unless propriety and justification for such an order is examined.
There can be no cavil to the abovequoted legal proposition, but in my view, the law laid down in Abdul Razzaq's case has relevance and application to the facts of the present case. In Iqbla Ellahi's case, one of the passengers was found in possession of the contraband material and he was convicted accordingly. However, it was observed by the Hon'ble Supreme Court that since owner of the vehicle and the driver had no connection, with the commission of offence, therefore, the vehicle was not liable to confiscation. However, in Abdul Razzaq's case it has been unequivocally laid down by the Hon'ble Supreme Court of Pakistan that:-- "If the words 'liable to confiscation' gave a discretion to the confiscating authority to deprive a persons of his property, then it follows that this discretion must be exercised upon the principles of natural justice; that is to say, the persons sought to be deprived of the property must be given notice to show cause, they must be furnished with adequate opportunity of putting forward their point of view and the same must receive due consideration. Furthermore, according to one of the principles now well-accepted, no person should 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 committed."
If the instant case is tested on the touch stone of Abdul Razzaq's case it would emerge that the Trial Court has ordered confiscation of the vehicle without forming an opinion or deciding that the petitioner was connected with the commission of, or responsible for, the offence of transportation or possession of the contraband material. The record is silent as to how the learned trial Court after ordering acquittal of the accused has formed this opinion that the "vehicle in question was "being used"/"used" in the transportation of narcotics.". Admittedly, the accused was acquitted of the charge and it was observed by the learned trial Court that the material recovered from the vehicle in question was not proved to be the narcotics or the contraband material, by the prosecution. No doubt under Article 15(1) of the Prohibition (Enforcement of Hadd) Order, 1979, it has been provided "that in any case involving anything liable to confiscation under the Order, the Court deciding the case may order such confiscation despite, acquittal of the person charged, yet in my view, the condition precedent for exercising jurisdiction under Article 15(1) is that before passing an order for confiscation, the Trial Court has to form this opinion objectively, that the thing involved therein was "liable to confiscation." Article 15(1) is reproduced herein below for ready reference and convenience:-- "Article 15(1). Confiscation how ordered.--(1) In any case involving anything liable to confiscation under this Order, the Court deciding the case may order such confiscation despite the acquittal of the person charged."
In the instant case, there is nothing on record to substantiate that the vehicle in question was liable to confiscation, because under Article 14 of the Prohibition enforcement of Hadd) Order, 1979 it has been provided that the intoxicant, still, utensil, implement or apparatus in respect or by means of which the offence has been committed shall be liable to confiscation alongwith the receptacles, packages, animals, vessels, carts or other vehicles etc. Article 14 of the Prohibition Order reads as under:-- "Article 14. Things liable to confiscation.--In any case in which an offence has been committed under this Order the intoxicant, still, utensils, 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 vehicle used to hold or carry the same."
Therefore, I am inclined to hold that after including, that no offence under the Order was committed, the learned Trial Court, was not justified to order confiscation, of the vehicle in question.
The impugned judgment, to that effect is, accordingly, set aside. The vehicle is ordered to be released to the owner forthwith.