' This is an application under section 561-A, Cr. P. C. Directed against the the order of Special Magistrate, Hyderabad passed under section 516-A, Cr. P. C. In a case under the Abkari Act.
2. The facts in brief are that a car was sent by way of gift by one Sabir Hussain residing in U. K. To one Mrs. Farzand Begum in Pakistan. The said Datsun Car was then transferred to petitioner Saeed Jan. Since the car was not legally transferable within 2 years of the import, a deed of mortgage of the car had been executed against a loan amount of Rs, 60,000. The car was, however, intercepted by the Excise Police on 2-6-1977 at Giddu near Hyderabad. One Movez Khan was driving this car while one Muhammad Hashim Butcher of Tando Wali Muhammad was sitting in the back seat.
From the back seat and from the luggage boot of which the driver had the keys two maunds of contraband charas had been secured. From the tool box of the car the registration papers of the car were also secured. Both Movez Khan and Muhammad Hashim were sent up in the Court of Special Magistrate, Hyderabad and the said Car No, KCD 3506 was also seized. An application was made to the Special Magistrate by petitioner Saeed Jan for return of the car to him under section 516-A, Cr. P. C. The learned Magistrate was of opinion that the document of mortgage being improperly stamped and being in violation of the law could not be looked into and petitioner Saeed Jan had, therefore, no locus standi to claim possession of the car.
3. It has been argued by Mr. Muhammad Ali Shaikh on behalf of the petitioner that although Mrs. Farzand Begum was the legal owner of the car in question, petitioner Saeed Jan who had purchased this car from the registered owner had claimed the car as a mortgagee in possession.
He has also pointed out that the case may take 2 or 3 years and the car which was being used by the excise police during the pendency of the case is bound to depreciate in value.
4. Mr. Muhammad Ali Shaikh has then referred to a decision of the Supreme Court in Haji Abdur Razzak v. Pakistan (1) that where the vehicle is liable to confiscation a discretion is given to the confiscating authority which must be exercised upon principles of natural justice, viz. The person sought to be deprived of the property must be given notice to show cause and he should be heard no person should be deprived of his property by way of penalty unless it is clear that he is in some manner responsible for assisting or furthering the commission of the offence committed. A similar view was taken in another Lahore decision in Zarina Khan v. The State (2). It was observed that where a car allegedly used in commission of an offence was owned and claimed by a person not doing anything to advance commission of the offence the Court was bound to release such property for proper custody under section 516-A, Cr. P. C. That the order of the Magistrate withholding custody of the car from its owner was entirely unjustified under the circumstances. {{FOOT NOTE}}
(1) PLD 1974 SC 5 (2) 1970 P Cr. L J 1215 {{FOOT NOTE}}
5. In this case also the vehicle used for transporting contraband charas is liable to confiscation under section 54 of the Sind Abkari Act. Under section 55 of the said Act an option is to be given to the owner to pay fine in lieu of confiscation if the vehicle is confiscated under the previous section.
6. In the present case, however, the actual owner of the car according to the registration certificate is one Mst. Farzand Begum ; she has not come forward to claim the car and her statement or affidavit has not been filed to show that she has since transferred the car to petitioner Saeed Jan as the owner. Where the vehicles are used for smuggling or for transporting narcotics it is usual for the persons using the vehicles to have them registered under fictitious names. The ownership and title of petitioner Saeed Jan has yet to be established in respect of this car. However, it is true that the car is subject to depreciation and it is alleged that it is being misused. It is accordingly ordered that the said car be kept in safe custody by the Special Magistrate and it should not be allowed to remain with the Excise Police. In case the petitioner as the ostensible owner is prepared to deposit Rs, 60,000 as the value of the car, the car could then be given to him on sapurdari and in case the car is found liable to confiscation and any such order is passed an option can be given as provided under section 55. The petition is disposed of accordingly.