KASHIF NADEEM vs AIMAL KHAN and another

SARDAR SHAUKAT HAYAT, J.---Instant quashment petition has been treated as an appeal against the confiscation of vehicle by this court vide order dated 14-5-2010.

2. Brief facts of the case are that in a case F.I.R. No.430 dated 24-5-2009 under section 9, C.N.S.A.

Police Station Akora Khattak, Nowshera, a motor car bearing registration No.K-1087 was stopped and on its search the local police recovered 6 KG charas from the secret cavities of the said motor car, therefore, was taken into custody. Two persons, namely, Tariq seated on the front seat and driver of the motor Aimal Khan were arrested on the spot. On receipt of murasila, case was registered against the accused. On completion of investigation, the prosecution submitted complete challan against the accused for their trial in the trial Court. At conclusion of the trial, the learned trial Court vide judgment dated 2-11-2009 acquitted the accused from the charges levelled against them, while the case property was ordered to be kept intact till the expiry of appeal/revision period and thereafter to dispose of the same in accordance with law. The appellant filed an application for custody of the vehicle being its real owner. The learned Additional Sessions Judge-III, Nowshera dismissed the application.

3. Learned counsel for appellant argued that the appellant is real owner of the motor car No. K- 1087/Lahore and that the appellant is not an accused in the above mentioned case; that the appellant had lodged an F.I.R. Regarding theft of his car Registration No.LWH-1087 Suzuki Mehran vide F.I.R. No. 1066 of 2006 dated 5-10-2006 under section 381-A, P.P.C. At Police Station Iqbal Town, Lahore; that no notice as required under section 32 of Control of Narcotic Substances Act has been given to him by the court and that the impugned order is illegal and liable to be set aside.

4. On the other hand, the learned State counsel opposed the appeal and defended the impugned judgment.

Arguments heard. Record perused.

5. On perusal of proceedings available on record, it appears that the appellant claiming the ownership of vehicle in question, was not put on notice by the trial court as to why the motor car be not confiscated. The prosecution during investigation also did not bother to trace out owner of the vehicle through its registration number. The F.I.R. No.1066 of 2006 dated 5-10-2006 registered under section 381-A at Police Station Iqbal Town Lahore, which was produced before this court by the learned counsel for the appellant also indicates the theft of the vehicle in question.

6. The appellant of its own filed an application before learned Additional Sessions Judge-III, Nowshera for custody of the vehicle being its real owner but the learned trial court without . Proper inquiry dismissed the application of appellant and thus did not comply with sections 32 and 33 of Control of Narcotic Substances Act.

7. The record of the case is also silent that any effort was made to ascertain and determine the question as to the effect that the appellant knew that the offence was likely to be committed and for that purpose the vehicle was allowed to be used.

8. The provision of section 32 ibid permits confiscation of the vehicle only when it is proved that the owner had knowledge that the offence was being, or was to be, committed. However, in the instant case the learned Additional Sessions Judge-III, Nowshera without any proper inquiry dismissed the application of the appellant. Reliance is placed on judgments reported through PLD 2004 Peshawar 251 (Aamir Khalil v. Government of Pakistan and others) and PLD 2009 Lahore 625 (Adamjee Insurance Company v. The State).

In view of the above discussion, we allow instant appeal and set aside the order dated 5-1-2010 passed by learned Additional Sessions Judge-III, Nowshera. Case is remanded back to the learned court to decide the application of the appellant in accordance with law.