1. JUDGMENT IFTIKHAR MUHAMMAD CHAUDHRY, J.- Precisely the facts, leading to filing of this Appeal are, that on 8th April, 1993, a Truck bearing Registration No. LSA-2379, was apprehended by Mobile Squad No. II of Customs Department, at Sariab Road, Quetta. On its search 30 Kgms (G.W.) charas of foreign origin, packed in four bags of Rice, concealed in specially designed cavities, besides other Pakistani goods, was recovered. Accordingly the Driver and Cleaner of the Truck were arrested. For adjudication in respect of goods, the case was referred to Customs Collectorate, whereas for trial of penal offences, they were sent up to answer the charge, before the Special Judge, Customs and Sessions Judge, Quetta, respectively under Section 156(1)(8)(89) of the Customs Act, 1969, and Article 4-of the Prohibition (Enforcement of Hadd) Order, 1979. Lt is stated that in the former case, they were acquitted of the charge on 19- 12- 1994, whereas in the latter case, they have been sentenced. In the meanwhile on 26th April, 1993, appellant Syed Taj Muhammad, filed an application, wherein he claimed that he is the owner of Truck, which has been apprehended by the Customs Staff, therefore, it may be released.
2. Mr. Shakeel Ahmad, learned counsel, admitted that after filing of application, a show-cause notice was given to appellant, which he contested, but Deputy Collector, Customs, on 14th November, 1993, straight-away ordered for confiscation of the seized charas, 4 bags of Rice and Truck No. LSA- 2379, under Sections 156(1)(89) and 157(2) of the Customs Act, 1969. As for as Pak Origin merchandise were concerned, they were ordered to be released to the rightful owner. Appellant preferred an appeal against the order of Adjudicating Authority, which was dismissed on 25th November, 1993. He then filed second Appeal before the Customs, Excise and Sales Tax Appellate Tribunal, which too was dismissed on 15th September, 1997, decision of which was communicated to appellant on 2nd October, 1997. Thus instant appeal has been filed under Section 196 of the Customs Act. 1969.
3. According to Mr. Shakeel Ahmad, learned counsel for the appellant, following law-point, is involved in instant Appeal:- "The Truck owned by appellant bearing registration No. LSA-2379, could not be confiscated, because appellant has been deprived of his property, without his involvement, in the act of smuggling."
4. To substantiate the claim of appellant, he relied on PLD 1974 SC 05 and 1998 P.Cr.L.J. 280.
5. Mr. M.S. Rukhshani, learned counsel for the Customs Department, contended that admittedly the contraband/smuggled charas was recovered from the Truck in question, as such, it was liable for confiscation, because the Driver or Cleaner could have not loaded the smuggled items in it, without the knowledge and consent of appellant. Reference in this behalf, was made to PLD 1970 SC 282 and AIR 1956 Calcutta 553. lt is to be noted that after the apprehension of Truck, the Adjudicating Authority, issued a show cause notice to appellant, after filing of his application, which was contested by him and in view of the facts and circumstances, outforth, before the concerned Authority, it was established that without the consent of appellant, it was not possible for the Driver and Cleaner " namely Muhammad Hussain and Abdul Sattar, to load contraband items in the Truck. This view was concurred by both the Appellant Forums, as it is indicative from the perusal of orders dated 25th September, 1995 and 15th September, 1997. In our opinion, to ascertain; whether a point of law for determination, crops up from the impugned orders keeping in view the Section 157 of the Customs Act, or otherwise, it would be appropriate to examine the provisions of said Section, which reads as under:- "157 Extent of confiscation.-(1) Confiscation of any goods under this Act includes any package in which they are found, and all other contents thereof.
(2) Every conveyance of whatever kind used in the removal of any goods liable to confiscation under this Act shall also be liable to confiscation: Provided that, where conveyance liable to confiscation has been seized by an officer of Customs, the (appropriate Officer) may, in such circumstances as may be prescribed by rules, order its release pending the adjudication of the case involving its confiscation if the owner of the conveyance furnishes him with a sufficient guarantee from a scheduled bank for the due production of the conveyance at any time and place it is required by the (appropriate officer) to be produced.
(3) Confiscation of any vessel under this Act includes her tackle, apparel and furniture."
6. A careful perusal of the same reveals that every conveyance of whatever kind used in the removal of any goods liable to confiscation under this Act shall also liable to confiscation, lt is an admitted fact that 30 Kgms of charas was recovered from the special designed cavities of the Truck of appellant, besides other goods, including the local merchandize. Appellant had an opportunity to contest the show-cause notice, but during course whereof, he failed to establish that Driver and Cleaner loaded contraband items in it, without the consent and knowledge, In this behalf, it would be profitable to make reference to the case of Hafiz ur Rehman v. The State (PLD 1970 SC 282).
7. Relevant para therefrom is reproduced herein-below:- "Whether a person is or is not concerned in an offence coming under item 8(a) of section 167 depends upon the facts and circumstances of each case. Direct evidence as to the actual unauthorised importation of contraband goods may be available in rare cases. Where such direct evidence is available, no difficulty arises as to who are the persons concerned in the offence.
8. Where, however, direct evidence is not available, the persons concerned in the offence are to be ascertained having regard to the facts and the attending circumstances of the case."
9. The above dictum appears to be consistent, because prior to above pronouncement by Hon'ble Supreme Court, in another judgment, passed in the case of Annada Prasanna Majumdar v. T.C.
10. Collector of Central Excise and Land Customs (AIR 1956 Calcutta 553) in respect of confiscation of conveyance/vehicle, where no direct evidence was available to ascertain; whether its owner was involved, it was held as under:- "This Rule is directed towards this order of confiscation, and the fine imposed Section 168 of the Act states that every vessel, cart or other means of conveyance and every horse or other animal, used in the removal of any goods liable to confiscation under the Act, shall in like manner be liable to confiscation. The idea is to confiscate the vehicle, irrespective of its ownership of the participation of the owner in the actual transport of the contraband goods, lt is what is called a provision of law "to condemn the vehicle", In other words, because the vehicle carried the contraband goods, it had become tainted, and is therefore, liable to be impounded. Section 183 of the Act provides that whenever confiscation is authorised by the Act, the officer adjudging it shall give the owner of the goods an option to pay in lieu of confiscation such fine as the officer thinks fit."
11. Even in the judgment cited by Mr. Shakeel Ahmad, learned counsel, delivered in the case of Haji Abdul Razzaque 'v. Pakistan through Secretary, Ministry of Finance and another (PLD 1975 SC 5) it was held that Section 168 of the Sea Customs Act, 1878, gives a discretionary power to Confiscating Authority, to deprive a person of his property, then it follows that this discretion must be exercised on the principle of natural justice, that is to say, the person 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 same must receive due consideration, lt was further held in this very report, that according to the well- accepted principle, r.o 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 offence, committed.
12. From perusal above three Reports, it emerges that a person, who is being deprived of his property and jurisdiction has been conferred upon the Authority to confiscate his property, then it is mandatory for the Authority to provide him an opportunity to defend himself, and if no direct evidence is available, the from indirect evidence, it can be ascertained; whether said person, who is being deprived of said property, had direct knowledge about the commission of smuggling in his vehicle and if there are plausible reasons to believe that the vehicle/conveyance was used in smuggling, then it can outrightly be confiscated, in exercise of such powers, In the instant case, Section 157(2) of the Customs Act, gives power to Adjudicating Authority to confiscate the conveyance/vehicle, in which the smuggling is found to have been committed. The Adjudicating Authority, to provide an opportunity to appellant issued a show-cause notice, which appellant contested. Whereas the Adjudicating Authority was satisfied that in the truck, contraband charas was concealed in a specially designed cavities, which of course was not possible for the Driver and Cleaner, unless the Master/owner had not permitted them to do so. Therefore, it was held that the vehicle was used in smuggling with the consent and knowledge of appellant, therefore, he was rightly held for penalty, under the relevant provisions of the Customs Act, referred to herein-above.
13. As for as the judgment reported in 1998 P.Cr.L.J. 280 is concerned, that is not applicable, on the facts of instant case, as such, need not to be discussed.
14. For the foregoing reasons, we are inclined to hold that no law-point, has been outforth for determination by this Court, as such the appeal is dismissed.
15. Herein-above are the reasons of our short order of even date.