Muhammad Gulzar Versus State
Muhammad ejaz Swati, ACJ .--- The appellant is aggrieved against order dated 05-10-2023 (impugned order), passed by Court of Special Judge Control of Narcotic Substances Act, Khuzdar (trial court), whereby application under Section 516-A/517 Criminal Procedure Code (Cr.P.C) filed by the appellant was dismissed.
2. The facts of the case are that 2D car bearing registration No.BMY-266 (vehicle in question) was intercepted in FIR No.13 of 2020, dated 04-05-2020, registered with Levies Station Khuzdar under Section 9 (c) of the Control of Narcotic Substances Act 1997 (the Act), from where 18 packets of opium, weighing 17 Kg and 500 gram, 11 packets of crystal, weighing 11 Kg, 22 packets of heroin, weighing 22 Kg and Sheesha weighing 1165 gram were recovered from secret cavity of rear seat of the vehicle in question, driven by one Abdul Ghaffar son of Hazoor Bakhsh (the accused). The accused was acquitted by the learned trial court vide judgment dated 27-09-2020 and thereafter the appellant has filed aforesaid application before the trial court, which was dismissed vide impugned order.
3. The learned counsel for the appellant contended that no opportunity was provided to the appellant prior to passing the judgment of confiscation as required under Section 32 of the Act. That the appellant had been running rent a car firm and had rented out the vehicle in question to the accused Abdul Ghaffar on 29.04.2020 and when he did not return the vehicle on due date matter was reported to the Police Station Gulshan Iqbal Karachi on 02.05.2020; that the appellant was not aware about the registration of FIR and the proceedings before the trial court; that soon after gaining knowledge of confiscation of the vehicle in question, the appellant filed application for release of the vehicle in question. The appellant is owner of the vehicle in question by virtue of an open transfer letter duly signed by the previous owner namely Manzoor Ahmed, and there is no cloud in respect of the ownership of the vehicle by the appellant. She placed reliance on cases reported in 2022 YLR 138, 2011 PCr.LJ 342, 2018 PCr.LJ 954, 2020 MLD 1854, 2023 YLR 2264 and 2016 YLR 1326.
4. The learned State Counsel opposed the contention of the learned counsel for the appellant and contended that the appellant has not approached the trial court during pendency of the proceedings nor in this respect had given sufficient explanation. That after filing of application under Section 517 Cr.P.C no supporting legal documents in respect of ownership of the vehicle in question on the name of the appellant has been produced before trial court where he had an opportunity to do so. That after passing of the judgment of acquittal by the trial Court the appellant has approached the court for seeking release of vehicle in question without substantiating his ownership, therefore, the instant appeal is liable to be dismissed.
5. We have heard the learned counsel for the parties and perused the record.
6. The question to be determined in this appeal is whether in the facts and circumstances of the present case, the vehicle in question could validly be confiscated under Section 32 of the Act Subsection (2) of the Section 32 of the Act provides as under:
"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) receptacles or packages, and the vehicles, vessels, and other conveyances used in carrying such drugs and substances shall likewise be liable to confiscation. "
7. The plain reading of the Section 32 ibid indicates that if any article or vehicle is employed to prepare or transport narcotics, it is covered by the provision of this Subsection and "shall be liable to be confiscated" however some protection had been provided in the proviso to Section 32 of the Act to the owner of vehicle 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."
8. The procedure or manner provided for confiscation has been laid down under Section 33 of the Act which reads under:
"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. Whether 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 confiscation 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."
9. The proviso to Sections 32 and 33 is essentially beneficial enactment to safeguard the right of the innocent owner of the vehicle and such confiscation is not mechanical or automatic. The proviso to Sections 32 and 33 of the Act empowers the trial Court to order confiscation of vehicle used in trafficking of narcotics subject to aforesaid proviso.
10. It is mandate of above provision that the claimant must be owner of the vehicle. Owner is defined in Section 2 (24) of the Motor Vehicle Ordinance, 1965 (the Ordinance) "a person on whose name the vehicle is registered and includes the transferee, who duly registered accordingly".
11. In the instant case the appellant after acquittal of the accused had claimed vehicle in question on the basis of photo copy of an undated, unattested open transfer letter allegedly signed by owner of the vehicle. An open transfer letter is not a valid document of a title; therefore, the impugned judgment warrants no interference by this court. Reliance in this respect is placed on case titled Amjad Ali Khan v. The State and others (PLD 2020 SC 299) wherein the Hon'ble Supreme Court observed as under:
"Coming to the facts of the present case, the first and the foremost condition is that the petitioner must be the "owner" of the vehicle. "Owner" is defined in section 2(24) of MVO to mean a person in whose name the motor vehicle is registered and includes the transferee. Transferee must be duly registered under MVO. In the present case, the petitioner moved an application for seeking superdari of the Vehicle on 20.11.2015, described himself as the owner of the Vehicle, but at the time, he only had an open transfer letter. An open transfer letter is not a valid document of title and it does not transfer ownership of a vehicle in terms of MVO. Subsequently, the Vehicle was duly registered in the name of the petitioner on 21.01.2016. This was too late as at the time of alleged commission of the offence, the seizure of the Vehicle and the registration of the criminal case on 20.08.2015 the petitioner was not the owner of the Vehicle. An applicant must be the owner of the vehicle prior to the commission of the offence. The registration certificate of the Vehicle shows that the original owner of the Vehicle was Muslim Khan, who sold the Vehicle to Asif Kamal and then finally the Vehicle was transferred in the name of the petitioner on 21.01.2016. Asif Kamal, was the owner of the vehicle at the time of the offence, but did not approach the court to seek release of the Vehicle. On 20.08.2015, when the petitioner made application for superdari of the Vehicle, he was not the owner of the Vehicle and therefore, does not pass the requirement laid down in proviso to section 32 of CNSA"
In view of the above, Criminal Appeal No. 606 of 2023 is dismissed.
JK/97/Bal. Appeal dismissed.