Haji RAB NAWAZ vs THE STATE

' SYED YAHYA ZAHID GILANI, J.--- The petitioner Haji Rabnawaz was booked in case F.I.R. No,9, dated 10-1-2004 of Police Station Saddar, D.I. Khan, under sections 420/468/471, P. P. C . For possessing Toyota Land Cruiser Vehicle No,MNX-567 Model, 1991, having doubtful antecedents.

2. His trial took place in the Court of Mr. Eisa Khan Afridi, Judicial Magistrate-II, D.I. Khan, who vide his judgment dated 16-6-2008, acquitted him on the ground that although the chassis number of the vehicle has been tampered and registration book has been found bogus, but it is not proved that the forgery was done by the accused (petitioner herein). However, the vehicle was confiscated to State. Criminal revision of Haji Rabnawaz petitioner against the confiscation of vehicle was dismissed by Mr. Aurangzeb Khattak, learned Additional Sessions Judge-II, D.I. Khan vide his judgment dated 30-8-2008. Hence, this petition for quashment of order of confiscation of the vehicle.

3. I have heard arguments of Mr. Muhammad Ismail Alizai, Advocate for the petitioner and Mr. Farooq Akhtar, Advocate for the State. Record has been gone through.

4. It is abundantly clear on record that the alleged crime could not be proved against the petitioner who was acquitted in the case and no appeal was preferred against his acquittal. When no mens rea is proved against someone, he cannot be penalized in any manner. Reliance in this respect is placed on the case of Daulat Khan v. The State 2005 PCr.LJ 1952 (FSC).

5. The petitioner is not only the last possessor of the vehicle, he is also the only claimant of its ownership. In the cases of movable property, possession is the major proof of ownership. In spite of registration of case in the year 2003 and about five years having been passed, no rival claimant of the vehicle has emerged. There is nothing on record to suggest that the vehicle is stolen.

6. The only allegations against the vehicle are that its chassis number is tampered and its registration book is bogus. For such objections, a vehicle cannot be confiscated to State because under the West Pakistan Motor Vehicle Ordinance, 1965, at the most, such vehicle cannot be driven on road under section 23 of the Ordinance. Section 25 of the Ordinance provides the procedure for the registration of the vehicle and section 33 of the Ordinance provides entry of alterations made in the vehicle, subject to payment of prescribed fee.

7. The mechanism provided in the West Pakistan Motor Vehicle Ordinance, 1965 can be followed for rectification of the faults related to the vehicle in question on payment of prescribed fees. I, therefore, hold that the confiscation of vehicle in question was not justified in law, as discussed above. Therefore, the order of its confiscation is quashed by acceptance of this petition. However, this order is subject to the condition that the vehicle shall be delivered to the petitioner after he gets it properly registered and the alterations found therein are also entered in the registration certification, according to law on payment of prescribed fee etc. Thereafter, the valid papers shall be presented before the trial Court and the trial Court, after getting satisfied about proper registration of the vehicle, deliver it to the petitioner.