GUL SUBHAN Versus THE STATE

ABDUL HAMEED DOGAR (CHAIRMAN) .‑‑‑ This appeal with leave to this Court is directed against the judgment dated 1,3‑12‑2000 of the Federal Shariat Court whereby Criminal Revision No. 12/I of 19119 filed by the appellant under Article 203‑D of the Constitution of Islamic Republic of Pakistan 1973 read with sections 435/417/516‑A Cr.P.C. was dismissed and order dated 27‑3‑1999 of the trial Court for confiscation of Vehicle No.SW‑2434 was maintained.

2. The facts in brief giving rise to the filing of instant appeal are that accused Mian Haider alias Mianiar the driver and Jamaluddin cleaner, faced trial before learned Additional Sessions Judge; Mansehra on the allegation that they had concealed Charas weighing 197 kg in the secret cavities of Truck No.SW‑2434 which was recovered on the pointation of the accused On the conclusion of trial both the accused were acquitted whereas the requisite truck was confiscated The order of the confiscation was assailed before the Federal Shairat Court by the appellant through Criminal Revision No.12/I of 1999 which has been dismissed vide impugned judgment.

3. We have heard Mr. Ejaz Muhammad Khan, learned Advocate on Record for the appellant and Mr. Imtiaz Ali, Additional A.‑G. N.‑W. F. P. at length and have gone through the record and proceedings of the casein minute particulars.

4. Leave in this case was granted on 23‑4‑2003 to examine the propriety and justification of the impugned order.

5. Mr. Ejaz Muhammad Khan, learned counsel for the petitioner vehemently contended that the impugned judgment is not sustainable in law as the same is based on wrong assumption of facts and law. According to him the Truck in‑question was purchased by appellant from Rozimand who handed over to him Open Transfer Letter along with other documents including photocopy of National Identity‑Card etc., He contended that the Truck was claimed by the original owner Rozimand at the initial stage of trial who preferred an application for its release on superdari before the Judicial Magistrate on 15‑9‑1997. The said application was dismissed on the ground that it was filed at preliminary stage and that the Truck was required as case property. He further contended that no notice was given to appellant, owner of the Truck in question qua its confiscation by the trial Court knowingly that the application for its release on superdari was made during the pendency of the trial. Irrespective of this, the rule of principle of natural justice has also been violated in this case as the appellant being the owner of the property was condemned unheard and impugned order was passed behind his back.

6. On the other side, Mr. Imtiaz Ali, Additional A.‑G., N.‑W.F.P. for the respondent, controverted the above contentions of the learned counsel for the appellant and contended that the learned Tribunal has fully dealt with all the legal as well as factual aspects of the case.

7. The Truck in‑question was seized on 4‑7‑1997 and the order of its confiscation was passed on 27‑3‑1999 during this period neither real owner of the truck nor the so‑called transferee claimed the truck. No. doubt Mian Haider, driver and Jamaluddin, cleaner of the truck, were arrested and put on trial but the learned trial Court for reasons given arrived at the conclusion that the prosecution failed to prove that they were the driver and cleaner of the disputed truck, therefore by extending them the benefit of doubt, acquitted both of them. However, it was, proved that the vehicle was involved in transportation of huge quantity of narcotics, recovered from its secret cavities specifically made in it, therefore, while acquitting the accused ordered its confiscation properly. Subsection (1) of Article 15 of the Prohibition (Enforcement of Hadd) Order, 1979 empowers the Court to confiscate the property involved in the transportation of contraband despite the acquittal of person charged.

8. Admittedly, the truck originally belonged to Fazal Muhammad son of Muhammad Younis, who had transferred it in favour of Rozimand, therefore, truck was purchased by ‑ the appellant through a sale‑deed dated 13‑5‑1997. As per sale‑deed out of the total amount i.e. Rs.8,50,000 an amount of Rs.1,00,000 has been paid by the appellant to Rozimand and Rs.1,50,000 was to be paid to him on 1‑10‑1997, while the rest of amount was to be paid in instalments which admittedly were not paid as such, the truck was not transferred in the name of the appellant. Therefore, he was not competent to file this appeal because he was neither a bona fide purchaser nor was in possession of the truck lawfully, as such has no locus standi to file the instant case.

9. For what has been discussed above, we are of the considered opinion that the appeal is misconceived and the impugned judgment is based on valid and sound reasons and is entirely in consonance with the law laid down by this Court. Neither, there is any misreading, or non‑reading of material evidence, nor misconstruction of facts and law. The appeal being devoid of force is dismissed.

M.H/G‑38/S Appeal dismissed.