2021 P Cr. L J 438
[Balochistan]
Before Muhammad Ejaz Swati and Muhammad Hashim Khan Kakar, JJ
GHULAM ALI ---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 261 of 2019, decided on 21st May, 2020.
(a) Control of Narcotic Substances Act (XXV of 1997) ---
----Ss. 32 & 33---Articles connected with narcotics ---Procedure for confiscation ---Scope ---
Appellant assailed the judgment passed by Trial Court to the extent of confiscation of vehicle
used in transportation of narcotics ---Sections 32 & 33 of Control of Narcotic Substances Act,
1997, empowered the Trial Court to order confiscation of vehicle used in trafficking of narcotic---Vehicle could not be confiscated unless it was proved that owner was aware that his vehicle was being used in the crime a nd in that respect burden was placed on the
prosecution--- Record of the case was silent as to whether any query or probe was made
during investigation or during trial or any substantial proof was brought on record by the prosecution about involvement of the owner of the vehicle or his knowledge of transportation
of narcotics ---Appeal was allowed, impugned judgment to the extent of confiscation of
vehicle was set aside and the case was remanded to the Trial Court for release of vehicle subject to verificatio n of ownership from Registration Authority.
2010 SCMR 1181 and 2011 SCMR 1471 ref.
(b) Criminal Procedure Code (V of 1898) ---
----Ss. 520 & 517---Order for disposal of property regarding which offence committed--- Stay
of order under Ss. 517, 518 or 519, Cr.P.C. ---Scope ---Where the case in which an order
under S. 517, Cr.P.C. was passed in itself is pending before a Court of appeal or revision, that Court can modify, annul or alter such an order under S. 520, Cr.P.C.--- Section 520,
Cr.P.C., empowers superi or Court to interfere with an order passed by a lower Court under
Ss. 517, 518 or 519, Cr.P.C., but it does not in any way restrict the Trial Court from passing an order consequent to and in compliance with the order of Superior Court, but where no such case is pending then an application under said section lies to the Court to which appeals or revisions ordinarily lie from the order of subordinate Court under S. 517, Cr.P.C.
AIR 1942 Sindh 1; Sardara v. Boota PLD 1950 Lah. 97; Ghulam Akbar v. The State
and another PLD 1958 Lah. 212; Ahmad Bakhsh v. The State and another PLD 1966 Lah. 918; Jalal Khan alias Jalley Khan v. The State and another PLD 1975 Lah. 45 and Manzoor
Hussai n Jatoi v. The State 1997 PCr.LJ 500 ref.
Khalid Ahmad Kubdani for Appellant.
Habibullah Gul, Additional Prosecutor General for the State.
Date of hearing: 4th May, 2020.
JUDGMENT
MUHAMMAD EJAZ SWATI, J .---A Truck Ten Wheelers bearing Registration
No.T KF-396 (the truck in question) was intercepted by Levies Authority, Whad District,
Khuzdar on 12th March 2018 at Shohadah Check Post Whad District, Khuzdar and in this
respect an FIR No. 03 of 2018 was registered by complainant Faizullah with Levies Author ities Whad District, Khuzdar under section 9(c) of Control of Narcotic Substances
Act, 1997 (the Act, 1997), wherein the complainant alleged that during search of truck in question, 129 packets crystal were recovered from secret cavity beneath cabin of tru ck driven
by accused Abdul Ghani son of Din Muhammad and his companion namely Shaukat Ali son of Azeem Bakhsh was also arrested.
2. The learned Additional Sessions Judge/Model Criminal Trial Court (MCTC), Khuzdar
(the trial Court) vide judgment dated 16th July 2019 (the impugned judgment) while
acquitting co- accused Shaukat Ali convicted Abdul Ghani under section 9(c) of the Act,
1997 to suffer life imprisonment and to pay fine of Rs.300,000/ -.
3. In Criminal Appeal No.245 of 2019, this Court vide order dat ed 18th November, 2019
also acquitted Abdul Ghani driver of the truck in question. Through the instant appeal, the appellant Ghulam Nabi had challenged the impugned judgment to the extent of confiscation of truck in question. It is mainly contended that during trial, the appellant being owner/co-sharer of the truck in question had applied for release of the truck in question on Superdari, which was declined by the learned Sessions Judge, Khuzdar vide order dated 7th August 2018 and this Court in Criminal Re vision Petition No. 32 of 2018 vide order dated 25th
September 2018 also dismissed the Criminal Revision on the ground that since the truck in question was the case property, which had yet not been produced before the trial Court.
4. Learned counsel for the appellant contended that the owner of the truck in question
has neither been prosecuted nor any evidence came on record to substantiate that he had any knowledge about commission of offence; that after acquittal of accused persons in FIR No. 03 of 2018, the truck in question is no more case property and the appellant cannot be
deprived of the same; that there is no cloud with regard to partnership/ownership of the appellant, therefore, the impugned confiscation is liable to be set aside.
The learned Addi tional Prosecutor General controverted the contention of learned
counsel for the appellant on the ground that the Criminal Appeal No. 245 of 2019 has been decided by this Court and the order of confiscation of the truck in question passed by the trial Cour t has not been disturbed, thus the instant appeal is not maintainable; that after passing of
judgment by the trial Court as well as by the Court, the provision of section 517, Cr.P.C. is
not applicable.
5. We have heard the learned counsel for parties and perused the record. The documents
annexed along with the appeal reveal that initially the truck in question has been taken in custody by the Levies Station, Kharan in respect of FIR No. 20 of 2017 dated 19th August 2017 in respect of offence under section 320, P.P.C. and during trial, the same was released in favour of the appellant on Superdari vide order dated 29th December 2017 and in the said case, the accused was acquitted by the learned Additional Sessions Judge, Kharan, which aspect of the case reflects that there is no rival claimant with regard to truck in question. In the instant case, the appellant had also applied for release of truck in question during trial on Superdari, which was declined by the learned Additional Sessions Judge, Khuzdar vide order
dated 7th August 2018, wherein the report of Excise and Taxation Office, Quetta indicates that the truck in question belongs to Haji Ali Muhammad and this Court in Criminal Revision Petition No. 32 of 2018 also declined to release the truck in questi on in favour of the
appellant on the ground that it was the case property of FIR No. 03 of 2018.
6. The question as to whether the vehicle in question could validly be confiscated under
section 32 of the Act, 1997? Subsection (2) of section 32 of the Act, 1997 provides as under:
"(2) Any narcotic drug, psychotropic substance or controlled substance lawfully imported, transported, manufactured, possessed, or sold along with, or in addition to, any narcotic drug, psychotropic substance or controlled substance which is liable to confiscation under subsection (1) and the receptacles or packages, and the vehicles, vessels and other conveyances used in carrying such drugs and substances 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."
7. From the bare perusal of subsection (2) of section 32 ibid, it is clear that any vehicle,
vessel and other conveyance used to hold or carry intoxicant "shall he liable to confiscation" along with the intoxicant. The procedure or manner provided for confiscation has been laid down under section 33 of the Act, 1997, which is read as unde r:
"Procedure for making confiscation.---(1) In the trial of offences under this Act, whether the accused is convicted or acquitted the Special Court shall decide whether any article frozen or seized in connection with such offence is liable to confiscati on.
(2) Where any article seized under this Act appears to be liable to be made until the expiry of one month from the date of freezing or seizure, or without hearing any person who may claim any right thereto and the evidence, if any, which he produces in respect of his claim."
Section 32 ibid is controlled by section 33 of C.N.S. Act, 1997, which provides that in
case of acquittal of a person charged with offence in relation with intoxicant utensils, such acquittal of accused ipso- facto will not absolve the vehicle or transport used in the
commission of offence of liability of the consequences and the Special Court shall decide
whether any article frozen or seized in connection with such offence is liable to confiscation.
8. The proviso to sections 32 and 33 of the Act, 1997 is essentially beneficial enactment
to safeguard the right of the innocent owner of the vehicle. Such confiscation is not mechanical or automatic.
9. The proviso of sections 32 and 33 of the Act ibid empowers the trial Court to order
confiscation of a vehicle used in trafficking of narcotics subject to proviso ibid that the vehicle shall not be confiscated unless it is proved that owner was aware that his vehicle was being used in the crime and in this respect burden has been placed on the prosecution to
establish that the owner of the vehicle had the knowledge of his vehicle being used in the crime. Reference in this respect is to be made to the cases reported in 2010 SCMR 1181 and 2011 SCMR 1471.
10. In the instant case, the record of the case is silent as to whether any query or probe
had been made during investigation of the case or during trial or any substantial proof was brought on record by the prosecution about involvement of the owner of the vehicle or his knowledge of transpor ting the narcotics.
11. The conviction of the accused person in offence under section 9(c) of the Act, 1997
has been set aside by this Court in Criminal Appeal No. 245 of 2019 vide judgment dated 18th November 2019, however, no order had been passed in res pect of vehicle in question.
The contention of the learned Additional Prosecutor General that after decision of Criminal Appeal No. 245 of 2019 by this Court, provisions of sections 516- A and 517, Cr.P.C. are not
attracted, is not tenable, as section 520, Cr.P.C. in such like eventuality provides remedy, which is read as under:
"Stay of order under sections 517, 158, or 519. Any Court of appeal, confirmation, reference or revision may direct any order under section 517, section 518 or section 519 passed by a Court, subordinate thereto, to be stayed pending consideration by the
former Court, and may modify, alter or annul such order and make any further orders that may be just."
12. From the bare perusal of provision ibid, it is clear that where the case in which an
order under section 517, Cr.P.C. was passed in itself pending before a Court of appeal or revision, that Court can modify, annul or alter such an order under section 520, Cr.P.C. Section 520, Cr.P.C. empowers superior Court to interfere with an order passed by a lower
Court under sections 517, 518 and 519, Cr.P.C. but it does not in any way restrict the trial Court from passing an order consequent to and in compliance with the order of superior
Court, but where no such case is pending, then an a pplication lies under this section to the
Court to which appeals or revisions ordinary lie from the order of subordinate Court under
section 517, Cr.P.C. Reference in this respect is to be made to the cases reported in AIR 1942 Sindh 1, Sardara v. Boota re ported in PLD 1950 Lah. 97, Ghulam Akbar v. The State and
another reported in PLD 1958 Lah. 212, Ahmad Bakhsh v. The State and another reported in PLD 1966 Lah. 918, Jalal Khan alias Jalley Khan v. The State and another reported in PLD 1975 Lah. 45 and Manzoor Hussain Jatoi v. The State 1997 PCr.LJ 500.
As far as entitlement of the appellant is concerned, we find that there is nothing on
record to show that appellant was aware that the truck in question was used for transportation
of narcotics. The appellant also produced registration documents of the truck in question and there is no rival claimant of the same, therefore, in these circumstances, the appeal is allowed and impugned judgment to the extent of confiscation of truck in question is set aside and the
case is remanded to the trial Court to release the truck in question subject to verification from
the concerned Registration Authority.
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