2021 M L D 80
[Balochistan]
Before Muhammad Kamran Khan Mulakhail and Abdul Hameed Baloch, JJ
JANAN KHAN through Purchase on Installments Kaleemullah---Appellant
Versus
The STATE through One Battalion (Qaid) Pakistan Coastal Guard, Uthal and another -
--Respondents
Criminal Appeal No.63 of 2020, decided on 30th June, 2020.
Control of Narcotic Substances Act (XXV of 1997) ---
----S. 32---Articles connected with narcotics ---Non-appearance of owner of vehicle before
Special Court ---Effect ---Appellant assailed order passed by Judge Special Court (CNS)
whereby vehicle carrying narcotic was confiscated in favour of the State ---Appellant pleaded
that he was unaware about pendency of the case, therefore, he had not appe ared before the
Trial Court but vehicle was kept in detention during the trial for a period of one year ---
Impugned judgment revealed that the narcotic was recovered from the secret cavities of the
vehicle ---Documents produced by appellant were mere photoco pies which could not be
considered at appellate stage, when neither any judicial enquiry was conducted nor the same
were proved through evidence ---Appellant was advised to avail the remedies available to him
under the provisions of relevant law before the Trial Court ---Appeal was dismissed, in
circumstances.
Talat Waheed Khan for Appellant.
Tahir Iqbal Khatak, Assistant Attorney General for the State.
Date of hearing: 22nd June, 2020.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. ---Appellant, Janan Khan son
of Akhtar Muhammad has filed this appeal under section 48 Control of Narcotic Substances Act. 1997 (Act 1997) against the judgment dated 04th February 2020 of learned Judge Special Court (CNS), Lasbela at Hub, whereby the vehicle/coach bearing registration No.JB -
2408 has been confiscated in favour of the State.
2. Precise facts are that a vehicle bearing registration No. JB -2408 was taken into
custody by the Coast Guard Uthal, in case FIR. No.27 of 2019 dated 02nd February 2019, registered under s ection 9(c) C.N.S.A., 1997, and during search, 1052 kilograms charas was
got recovered from the coach, while the driver of the coach Abdul Basit and conductor
Muhammad Ilyas were arrested. Investigation was conducted and on completion whereof complete chal lan was submitted in the court of Special Judge CNS Lasbela at Hub. On
completion of the trial the nominated accused persons were acquitted of the charge, whereas the coach, allegedly used in commission of the offence, was confiscated in favour of the
State. Since the vehicle was registered in the name of the appellant, as such, he being
aggrieved of the impugned confiscation order approached this court through this appeal.
3. Learned counsel for the appellant contended that the appellant is a legal, genuin e and
last bona fide purchaser of the vehicle in question and being the real owner he is entitled for
its possession as there is no other rival claimant of the same; that prior to confiscation, no notice was issued to him and as such the principle of natur al justice was violated; that the
vehicle in question was the sole earnings source of the appellant and his entire family; that the appellant was having no conscious knowledge of the contrabands, as the accused persons charged therein were the driver and conductor. He, therefore, sought modification and reversal of the judgment impugned to the extent of confiscation of the vehicle in question.
4. Conversely, the learned Assistant Attorney General opposed the contention and
submitted that the appellant never appeared before the trial court nor placed on record any
authentic documents showing that he is the real owner and urged for dismissal of the appeal.
5. Arguments heard and record perused.
6. Perusal of the case file reveals that the vehicle in question w as taken into possession
by the Coast Guard, Uthal being allegedly used in transportation of contrabands, challan was
submitted before the trial court and on completion of the trial the accused persons nominated therein were acquitted of the charge, but th e vehicle was ordered to be confiscated in favour
of the State by the trial court vide judgment impugned herein. The appellant, being claimant approached this court for release of the vehicle on the ground that he is legal and lawful owner of the vehicle i n question. Perusal of the record reveals that the appellant was never a
party before the trial court, nor he has approached the trial court by producing his documents of ownership.
Needless to observe here that in the instant case the judgment was passed on 04th
February 2020 and the instant appeal was filed on 05th March, 2020, the petitioner pleaded that he was unaware about pendency of the case, therefore, did not appear before the trial court. It was further contended that the coach in question was purchased by the appellant on installment, but it cannot be reconciled on perusal of the record that how the appellant remained unaware about custody of his driver and cleaner along with detention of the vehicle in question in CNS case. The impugned judgment further shows that contraband narcotics
were recovered from the secret cavities of the coach, a question arises, whether the appellant being owner of the coach in question, has left his vehicle, which was purchased on installment at the disposal of driver and cleaner, who after altering the body have created
secret cavities, from which 105 kilogram charas was recovered and both the accused persons remained in custody for one year (from 02.02.2019 till 04.02.2020), but astonishingly, the appellant was unaware about their custody and detention of the coach. The appellant also did
not disclose that when the coach in question was in judicial custody and there was no
earnings, despite detention of his driver and cleaner, how the appellant was maintaining his life during the intervening period and whether the seller of the vehicle in question was not
demanding the monthly installment. Moreover, now documents brought on record by the appellant, which are mere photocopies, cannot be considered at the appellate stage , when
neither any judicial inquiry was conducted, nor same were proved through evidence.
Therefore, these grounds require a thorough probe, and thus, cannot be considered at
appellate stage. It would be advisable to the appellant to avail the remedy avail able to him
under the provisions of relevant law before the trial court.
Needless to observe that the appellant is at liberty to approach the trial court at first
instance, by way of filing application, whereas the learned trial court is directed to proce ed
strictly in accordance with law and after framing points for determination in the light of observation rendered herein above, when, it shall also be determined that whether the coach allegedly used for transportation of the narcotics, can be released in favour of owner or
otherwise?
In view of what has been discussed herein above, since the applicant has an alternate
and efficacious remedy for redressal of his grievance, therefore, the instant appeal is not entertainable, which is dismissed accordingly with aforesaid observations.
SA/172/Bal. Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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