AMEER KHAN vs The STATE

' MRS. IRSHAD QAISER, J.---Petitioner Ameer Khan has submitted the present appeal against the judgment/order dated 7-1-2012 passed by learned ASJ-V, Kohat vide which the accused was convicted and the case property including charas and car were confiscated.

2. Brief facts of the case are that a case vide F.I.R. No,567 dated 29-5-2011 under section 9, C.N.S.A, 1997, Police Station Muhammad Riaz Shaheed was registered on the basis of Murasila. As per contents of the murasila 19000 grams charas garda were recovered from the secret cavity of the rear seat of Suzuki Car bearing Registration No,8704 by the local Police and at the relevant time accused Ajab Khan was driving the vehicle. He along with car was arrested and after the culmination of investigation and trial he was convicted by learned Judge, Special Court and the case property including charas and vehicle were confiscated.

3. Learned counsel for the petitioner has contended that petitioner moved an application under section 516-A, Cr.P.C. For the return of vehicle but the same was dismissed. That petitioner is bona fide purchaser of the car in question. He was not aware from the fact that the contraband will be smuggled in the same car. That the car was no more required to the local Police and the Court because it has already been exhibited. That since petitioner is not involved in the case therefore; there is no bar to return the vehicle to the petitioner. These contentions were denied by learned State counsel and contended that he being the owner was well-versed with the smuggling of huge quantity of narcotic through his car.

4. The question to be determined in this petition is whether the car in-question could validly be confiscated under section 32 of C.N.S.A.

1997. The phraseology employed in this section is very plain. It clearly lays down that whenever an offence has been committed which is punishable under this Act, the narcotic drugs psychotropic substance or controlled substances material, apparatus and utensils in respect of which, or by means of which, such offence has been committed shall be liable to confiscation. In subsection (2) of section 32 of C.N.S.A., 1997 it is further clarified;-- Section 32(2). Article connected with narcotics:---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 conveyance used in carrying such drugs and substances shall likewise be liable to confiscation.

5. This clearly lays down that whenever an offence, has been committed under this Act, the intoxicant, utensils etc. In respect or by means of which the offence has been committed shall be liable to confiscation along with receptacles or packages and vehicle, vessel or other conveyance used to carry the same. The plain reading of this section indicates that if any article or vehicle is employed to prepare or transport narcotics, it is covered by the provision of this section. The same has to be confiscated. The provision is mandatory. However some protection/safeguard had been provided in the proviso of section 32 of C.N.S.A., 1997 which is reproduced as under;-- ' 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.

6. Moreover this section is also controlled by section 33 of C.N.S.A., 1997 where the procedure for making confiscation is given which is read as under;- "Section 33. 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 confiscation.

(2) Where any article seized under this Act appears to be liable to confiscation under section 32, but the person who committed the offence in connection therewith is not known or cannot be found, the Special Court may inquire into and decide such liability, and may order confiscation accordingly: ' Provided that no order of conacation of an article shall 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".

7. In order to administer criminal justice the most important criteria or essence of every offence i,e, mens rea or guilty mind has to he considered. No crime or offence is complete unless the commission of the same is coupled with the necessary ingredient of mens rea or guilty mind.

8. In this case petitioner has submitted an application under section 516-A for the return of his car on 7-10-2011 being its owner with the contention that accused is his driver and he has no knowledge that his car is being used by his driver for transportation of narcotics. The impugned order was passed on 7-1-2012. It was the duty of the trial Court to look for the mens rea on his part or any contribution made by him and when it is proved then the owner of the vehicle being privy to the commission of the offence cannot be exonerated. The law will take its course and confiscation of the vehicle would be ordered. Record is silent in respect of the fact, whether any query or probe was made by raiding party or Investigation Officer to trace out that petitioner as owner of the car had any knowledge of transporting the narcotics. The proviso of section 32 and section 33 of C.N.S.A., 1997 is essentially beneficial enactment to safeguard the right of innocent owner.

9. As observed above, in absence of any mens rea, to penalize a person would be unjust and also contrary to the principle laid down under Islamic Jurisprudence. {{URDU TEXT }}

10. For every action the intention of the doer has to be kept in view. In the absence of the same, confiscation of the vehicle will be harsh and unjust. Reference made to 2002 PCr.LJ Lahore 97.

11. Thus keeping in view the above facts and circumstances of the case we find that confiscation of petitioner's Car No, 8704 is unjust and improper. Therefore, the judgment dated 7-1-2012 passed by learned ASJ-V, Kohat in respect of confiscation of car only is set aside and case is remanded back to the trial Court with the direction to first dispose of the application of petitioner after proper appreciation of evidence and then to do the needful in accordance with law.