DOST MUHAMMAD KHAN, J.-This judgment shall also decide Cr. M.Q. No, 250 of 2003 because question of law and facts are common to both.
2. Petitioner Aamir Khalil, an owner of Toyota Corolla Car Model 1999 Registration No, IDJ 5488 has impugned the auction of the car held on 29-9-2003 by the respondents purportedly under the rules called (Disposal of Vehicles and other articles involved in the Narcotic cases) Rules, 2001 notified on 13th August, 2001.
3. Brief facts of the case are that on 24-11-2002 at 1800 hours the car in question was suspected escorting/piloting Land Cruiser No,IDH1792, From which charas 293(sic) K.Gs. And opium weighing 4 K.Gs were recovered but nothing was recovered from the said Car. Both the vehicles after having been taken into possession were allegedly deposited in the Ware House. One Anwar Khan who was driving the motor car at the relevant time was also arrested and arrayed as an accused.
4. The petitioner applied for custody of the car to Judge, Special Court, Peshawar who dismissed this application simply on technical ground on 3-6-2003.
5. Aggrieved of the said order the petitioner, on 4-8-2003 filed Cr. MQ No, 173 of 2003 seeking the same relief. The plea of the petitioner there and here both was/is that he had purchased the motor car from Pakistan Industrial Leasing Corporation Ltd. Satellite Town Rawalpindi for Rs,900,000 and after some time he sold it to one Sikandar Hayat through Ramna Motors Car Rental Service Company situate in G-8 Islamabad on 28-8-2002 on instalments. Written agreement to that effect was filed as Annex-B while Lease Finance Facility issued by the Trust Investment Bank Ltd. Was produced as Annex-A.
The above criminal petition seeking custody of the car was admitted to full hearing on 11-8-2003 by this Court and notice was accordingly issued to the respondents ANF/State. The said petition came up for final hearing on 17-10-2003 which was allowed for the reasons recorded in the order against sureties bond of Rs, 10,00,000. When the release order was produced to the ANF authorities alongwith the order of this Court, they refused to implement it because the vehicle had been put to auction on 29-9-2003 hence feeling mortally aggrieved the petitioner has filed the instant Constitutional petition while the ANF respondents herein have filed, the connected Cr. M/Q. No, 250 of 2003.
6. Aamir Khalil, the petitioner herein, through the instant Constitutional petition has questioned that the auction proceedings held on 29-9-2003 wherein vide. Lot No,423 his car was auctioned and delivered to the bidder on grounds of being, illegal, ab initio and based on foul play with a prayer that a writ be issued to the respondents 1 to 5 to hand over the car to the petitioner being the actual owner and the order of this Court, dated 17-10-2003 be implemented.
7. We have heard the arguments of the learned counsel at length and have gone through the record. We have also obtained copies of bid sheet and auction proceedings from the record produced before the Court by the ANF official.
8. As mentioned above the car in question was taken into possession on 24-11-2002 from one Anwar Khan. The case of the petitioner is that he had sold the car to Sikandar Hayat vide agreement Annex-B on payment of the agreed price through instalments but the said Sikandar Hayat without making the full payment and without the consent and permission of the petitioner sold the car to Anwar Khan.
None of the them paid the instalments to the Leasing Company (Bank) as per terms and conditions of agreement executed between the petitioner and Sikandar Hayat as a result the Leasing Corporation put the petitioner on notice directing him to make good payment of installments, the petitioner thus forced by the circumstances, paid all the arrears of the instalments to the Leasing Company and a Certificate to that effect was issued to him. Copy enclosed as mark-C.
9. The narcotics were recovered from the Land Cruiser Jeep alone and not from the car in question.
Per F.I.R. Version the car was suspected to have been used as a pilot car escorting the said Jeep but no evidence of any legal worth has been brought on record to show any remote connection or nexus between the two vehicles having been used combinedly for commission of the offence. As the trial of the case is yet to be held, therefore, by way of caution we would avoid to discuss this aspect of the case in much detail lest it prejudice the case of one or the other side.
10. It is an admitted fact that the car was purchased for Rs,900,000 by the petitioner from the Leasing Company and keeping in view its condition reflected in the photograph placed on record, the year of manufacturing/model 1999 and being 2.00 DG the purchase price shown does not appear to be exaggerated one rather it seems to be the true market price.
As the ownership of the petitioner regarding the case is neither denied by Sikandar Hayat, Anwar Khan from whom it was recovered, nor by the ANF, the same is equally proved from proper agreements deed and receipts regarding the payment of instalments to the Leasing Corporation by the petitioner, so this aspect is not open to any debate. B During the entire course of investigations no evidence of any nature has been brought on record to show that the petitioner has in any manner abetted, facilitated or connived at the commission of the crime thus not a single suspicion was raised against him. For these reasons, this Court vide order, dated 17-10-2003 granted custody of the car on "Superdari" to the petitioner.
11. The plea of the respondents is that they have acted according to law and have substantially complied with relevant rules while auctioning the car and that the auction had taken place before the release order of this Court they would have to pay the sale proceeds to the petitioner.
To understand the true import of the relevant provisions on the subject, we would first refer to section 32 of the ibid Act which is reproduced below:-- S.32 Articles connected with narcotics.--(1) Whenever an offence has been committed which is punishable under this Act, the narcotic drug, psychotropic substance or controlled substance, materials, apparatus and utensils in respecf of which, or by means of which, such offence has been committed shall be liable to confiscation.
(2) Any narcotic drug, psychotropic substance or controlled, substance unlawfully imported, transported, manufactured possessed, or sold alongwith, or in addition to, any narcotic drug, psychotropic substance or controlled substance which is liable to confiscation under subsection
(1) the receptacles or packages, and the vehicles, vessels and other conveyance used in carrying such drugs and substance shall likewise be liable to confiscation.Provided that no vehicle, vessel or other conveyance shall be liable to confiscation unless it is proved that the owner thereof knew that the offence was being, or was to be, committed.
(Underlined by us) The second proviso to sub-clause-2 of the subsection 2 reads as follows:-- Provided that if any such article, other than a narcotic drug, psychotropic substance or controlled substance is liable to speedy and natural decay, or if the special Court is of opinion that its sale would be for the benefit of its owner, he may at any time direct it to be sold and the provision of this subsection shall, as nearly as may be practicable, apply to the net proceeds of the sale. Rest of subsection not relevant. The Federal Government under S.R.O. No,582(I)/2001 vide Gazette of Pakistan Extra Ordinary Part-II, dated 13th August, 2001 notified the Disposal of Vehicle Rules involved in the narcotic cases. According to Clause (b) of Rule 2, "article" has been defined which means and includes any thing, other than conveyance or narcotic drug or psychotropic substance or controlled substance in the commission of an offence and seized frozen or confiscated under the Act while Clause-G defines conveyance which means a conveyance of any description whatsoever and includes, any vehicle, vessel, ship; boat, aircraft, railway or animal use for the commission of an offence and seized, frozen or confiscated under the Act. Under Rule 3 of the ibid rules, mode of approval for auction of vehicles/articles seize has been provided, the same is reproduced below:-- Rule (3) Approval of vehicles/articles for auction.-(1) The concerned Regional Directorate Anti Narcotics Force shall, after submission of challan, forward list of seized, frozen and confiscated case property or vehicle required to be auctioned to the Director-General for approval. The list of vehicle shall contain the following details, namely:--
(a) first information report or case number;
(b) model of the vehicle; (c)condition of the vehicle; (d)approximate market value; (e)photocopy of the registration (f)book; photograph of the vehicle; and (g)reserve price.
(2) The Director-General Anti Narcotics Force shall, on the receipt of above information or on his own motion, pass orders directing the sale of seized, frozen or confiscated vehicles and shall approve, or cause the reserved price determined for each vehicle separately.
(3) The reserve price shall consist of appraised price, duties or tax and any other charges.
(4) Not relevant.
(5) All articles or vehicles may be put to bid in convenient lots so as to obtain the highest possible bid.
Under rule 4 Auction Committee has been constituted for each Zone consisting of following, namely:--
(a) Regional Director or Joint Director of respective Regional Directorate Chairman.
(b) Joint Director (Enforcement) or Deputy Director (Enforcement) or Assistant Director (Enforcement) Member.
(c) Mechanical Transport Officer (not below the rank of Captain! Assistant Director of concerned Regional Directorate...Member. Similarly rule 5 explain the duties of the Auction Committee while sub-rule 2 of the said rule provides that approval of the Special Court, where the case is under trial shall be obtained prior for proceedings with the public auction. After the auction, the proceedings of the auction of the articles or vehicles complete in all respects shall be submitted to the Special Court concerned for record so as to form part of the Court proceedings. Sub-rule (3) provides that after giving advertisement in classified columns of at least three leading English language and Urdu language daily newspapers (preferably Sunday issue) and any local language of the area at least five to seven days in advance of the date of auction specifying:--
(a) date, time and place of auction in block letters;
(b) The general description of vehicles to be auctioned. No advertisement or public notice in newspapers shall be required in respect of left over vehicles, already notified and such vehicles shall be put to re-auction on display of notice on appropriate place reception or gate of Regional Directorate on notice board (approachable to common man at least two days before the date of re-auction).
(c) display of such vehicles at a place convenient for inspection by interested parties, people or bidders.
(d) due notice to the owner of the articles or vehicles seized and frozen at least seven days in advance of the date of auction, giving the above details with a copy thereof to the Special Court.
It is crystal clear from the first proviso to subsection 2 of section 32 of the ibid Act that vehicles shall not be liable to confiscation unless it is proved that the owner thereof knew that the offence was being or was to be committed in respect of it while the combined reading of first and second provisos to sub-clause 2 of subsection 2 of the ibid section places restriction on the confiscation of an article before the expiry of one month and that before confiscation order the claimant must be given an opportunity of hearing and that the Special Court in case of an article which is subject to speedy and natural decay may direct that it be sold and the claimant may apply for the receiving of the net proceeds of sale. Similar rider is provided in sub-clause 3 of subsection 2 conferring power on the claimant to get set aside the order of confiscation within a period of 30 days from the date of order. While framing and notifying the ibid rules, the Government has not taken care of the above requirements of law in a fair manner and to some extent the rules are ultra vires of the Statute law on the subject of confiscation and sale of vehicle, vessel and conveyance of any type connected with narcotics/drugs, still there is a clear rider and bar imposed on the sale of such vehicle without prior notice to the owner under rule 3 clause (d).
12. None of the respondents including the so-called auction committee and the Special Court has issued any notice to the petitioner about the proposed auction of his vehicle. It was not a simple omission but deliberate suppression of fact for obvious reason because presence of the petitioner would have frustrated the designs of covert deal/disposal of the car at throw away price i,e, Rs,5,45,000. We have more than one solid reason for drawing the adverse inference. In this petition when we issued lactic?. To Muhammad Jan, the so-called auction purchaser, he did not appear before us in Court on 2-6-2004 but instead Mr. M Tariq Khan Kakar, the learned standing counsel for ANF (respondents) loudly proclaimed at the bar that ANF (respondents) have directed him to defend him (Muhammad Jan) as well at their expense and cost and he filed power of attorney on his behalf. This declaration at the bar, open and blunt as it is, has fully exposed the intriguing aspect of the entire episode. In our view no further materials/evidence is required to hold that Muhammad Jan has acted "Benamidar" while the real beneficiary is/are the rest.
13. Yet looked at from another angle, the whole transaction bespeaks volumes of foul play. Challan in this case was filed before MIC (J) Kohat on 16-6-2003 and on the same date it was forwarded to and was received by the Special Court. In the challan the motor car is shown as a case property. To verify it, the judicial file and Court file both were requisitioned. Nowhere in the index, the documents relating to auction of the car are shown attached therewith but to our surprise at a latter stage of the trial some receipts about it have been inducted into the record. How this was managed in serious begging question shrouds in a mystery.
14. Another aspect which shall not go un-noticed is that from order sheet No, 3 dated 12-7-2003 up to order sheet No,7, dated 2-9-2003 the trial Court has asked the ANF to produce the case property but it was never pioduced. Again on 18-9-2003 docket of this Court was received by the trial Court and record was sent here for disposal of Superdari application of the petitioner and on 23-9-2003 S.P.P. For ANF was marked present and case was adjourned because record was lying here. Was it not a sufficient notice to ANF that question of disposal of Superdari case was sub judice before this Court.
15. There is yet another aspect curious enough as when Cr. M. No,173 of 2003 of the petitioner was being argued by the counsel of ANF on 17-10-2003 he did not disclose the fact that car was no more available with them having been auctioned on 29-9-2003 although he had obtained the brief with instructions from ANF (respondent). Is it not a classic example of misrepresentation and suppression of material fact.
16. Now we would re-attend to the other legal aspects. Under rule 5 no written approval from the Special Court was obtained for the auction of the car which is sine qua non as the trial had already commenced. In all the advertisements published in daily newspapers available on record neither make/model nor condition and description of any vehicle is given which is mandatory under rule 5 ibid. In the absence of such details who amongst the public including the petitioner could know that how many vehicles and of what description were being auctioned. This tricky methodology was adopted with the view that none from the bidders could know that what was being auctioned and what not, leaving room for striking bargain/deals behind closed doors.
17. Article 24 of the Constitution in a firm command prohibits that no person shall be deprived of his property save in accordance with law. The action of the Executive depriving a person of his property must carry the sanction of law behind it and unless that is shown/proved and D until substantial compliance with the law itself is made while taking the action, the result which flowing there from would render such action nullity in the eye of law, coram non-judice and the same would be reduced to naught. In subsection (2) of section 32 of the ibid Act the term used "and the vehicles, vessels and other conveyance used in carrying such drugs and substances shall likewise be liable to confiscation" is of fundamental importance. The word "carry or carrying" as defined in Black's Law Dictionary means "to bear, bear about, sustain, transport, removal or convey". To have or bear upon or about one's person as a water or weapon, locomotion not being essential as applied to possess or E hold while carrying means the act of removal or as portation which is essential to constitute it. Keeping in view the above definition and the fact that nothing was recovered from the car in question, the vehicle cannot be held to have been used for carrying the narcotics, therefore, it is difficult to hold that the same was directly involved in carrying away the narcotics which were in fact recovered from the Jeep thus whether the motor car was liable to confiscation under subsection 2 of section 32 of the CNS Act, is a question of serious legal debate and controversy.
The term/word "confiscation" has not been defined in the definition clause of the ibid Act, however, the dictionary meaning of the same is "to deprive a person of a property by the State through the order of the Court, tribunal or authority empowered by law when any property has been used in violation of law or in respect of which any offence has been committed". The phrase "shall like-wise be liable to confiscation" has a different connotation from the word "shall be liable to confiscation".
See case of Suleman v. The State (PLD 1962 (W.P.) Lahore 11). The jurisdiction/powers to confiscate an article/vehicle exclusively vests in the Special Court and it is for the Special Court to decide as to whether any article/vehicle/vessel seized, frozen in connection with such offence is liable to confiscation thus the ANF has no power or authority to assume jurisdiction by making anticipatory confiscation before the trial is concluded. The relevant rule to this extent is, therefore, offending against the plain language of section 33 and section 77(2)
(a) of the C.N.S.A. In the instant case the petitioner's conviction is out of question because being not an accused. Anwar Khan, from whom the car was recovered, is not the lawful owner of the same but the petitioner has a valid claim and that claim too is to be decided by the Special Court at the conclusion of the trial. As earlier discussed no permission of the Special Court was obtained which otherwise, could not be granted unless an article is of a nature which is subject to speedy and natural decay. It has never been the case of ANF (respondents) while putting to auction the car alongwith other vehicles.
18. It is a cardinal principle that Court shall strive to explore every possible means and explanation for the validity of an order passed by the functionaries of the Government and for that purpose the Court will have to study and examine the entire field of powers conferred on the authority in pursuance to which the impugned order has been passed and it is for the above reason that we have made detailed discussion and examined the relevant law and rules on the subject with reference to the admitted facts on record otherwise we are mindful of our well defined writ jurisdiction wherein factual controversy does not fall within its realm. There is another iron clad principle of law to the effect that if an act of public functionaries is not in conformity with the law and rules which control, regulate and define their powers and jurisdiction then such order made or proceedings taken would be without lawful authority and the Courts are bound to declare them of no legal effects. Whenever powers are given to Executive Authority relating to the determination of rights of citizen, those being in the nature of sacred trust are, therefore, to be exercised justly, fairly, judiciously and in accordance with law. Any violation of such principles would render their impugned orders nugatory. Constitutional Courts of the country are the main guarantors of the fundamental rights of the people. Any encroachnient and invasion made on the same by the public functionaries in violation of law or when such rights are infringed maliciously and malafidely by them then Courts shall not hesitate to firmly establish and issue writ to the wrong doer requiring him/them to do what is required by law to do and to refrain from doing an act which is prohibited by law and the Constitution. In the instant case the respondents (ANF officials) have acted in utter disregard of law and the rules on the subject and have encroached upon the authority and jurisdiction of the special Court apart from noncompliance with the mandatory provisions of law and principle of natural justice as a result the petitioner was deprived of his property in violation of law and against the clear command of the Constitution, therefore, the auction proceedings taken in respect of the car of the petitioner and ali actions taken both at pre and post auction stages being without lawful authority, without jurisdiction and based on clear mala fide thus are liable to be struck down. For the foregoing reasons, therefore, we accept this Constitutional petition, set aside the auction of the car of the petitioner held on 29-9-2003 and all actions taken thereafter being equally nullity in the eye of law having been taken without lawful authority are also declared of no legal effects and are set aside hence we direct that the car bearing No,IDJ-5488, the ownership of petitioner, be returned to him with relevant documents including registration book etc. On the terms and conditions contained in order, dated 17-10-2003 passed by this Court. Before parting with this judgment as we have entertained grave concern about the mode, methodology and process of auctioning of such vehicles at pre-trial stages because of the ambiguous enabling rule 3 of rule,. 2001 which is inconsistent with the mandatory provisions of sections 32 and 33 of the C.N.S.A. And serious anomaly is thus created and it has opened chances and avenues for malpractices, therefore, it is desired of the legislature/Government to introduce necessary amendments in the relevant rules so that the jurisdiction and authority of auctioning vehicles shall finally vest in the Special Court and that such auction shall only be made where it is established that further retaining the same in the Warehouse would diminish its value to considerable extent and that the entire process of auction is to be supervised by the Judge of the Special Court or any other Judicial Officer appointed by him for that purpose. Similarly some mechanism is to be provided for proper and correct assessment of market price of each vehicle through approved appraiser of the State Bank and/or the expert of the manufacturer of vehicles before the auction takes place. We also declare that any auction if held in future without any prior notice in writing issued to-the owner/claimant of the vehicle through registered A.D. And unless his presence is procured at the time of auction. The auction would be null and void. We also direct that whenever the Special Court is approached by the ANF officials for auction of any article/vehicles, vessels etc on the ground of its being subject to speedy and natural decay, it shall not pass any mechanical order but shall conduct or cause to be conducted an inquiry into the same and if it is established that the articles/vehicles/vessels are necessarily to be auctioned for compelling reasons then proper speaking order must be passed and the record of the auction must be produced before the Special Court and be made part of the judicial record. Writ petition is allowed in the above terms while Cr. Mis/Q.P No,250 of 2003 is dismissed.