Muhammad Asad Versus State
This criminal appeal challenges the trial court's order confiscating a vehicle used in a narcotics offense and the subsequent dismissal of an application for its release on superdari. The core legal question is whether a vehicle can be confiscated under the Control of Narcotic Substances Act, 1997, when the registered owner was not involved in the crime and lacked knowledge of the illicit activity. The Court held that the confiscation was improper because the prosecution failed to prove the owner's knowledge of the narcotics being transported, as required by the proviso to Section 32(2) of the Act of 1997. The Court emphasized that the mere use of a vehicle in a crime does not automatically warrant confiscation if the owner is innocent and unaware of the illegal use. Consequently, the Court set aside the confiscation order and the dismissal of the superdari application, ordering the release of the vehicle to the appellant upon verification, establishing that the burden of proving the owner's guilty knowledge lies with the prosecution.
- Can a vehicle be confiscated under the Control of Narcotic Substances Act 1997 if the owner was unaware of the narcotics being transported?
- Does the burden of proving the owner's knowledge of a narcotics offense lie with the prosecution for the purpose of vehicle confiscation?
- Is a vehicle liable to confiscation under Section 32 of the Control of Narcotic Substances Act 1997 if the owner was not involved in the commission of the offense?
- Section 9(c), Control of Narcotic Substances Act 1997
- Section 15, Control of Narcotic Substances Act 1997
- Section 32, Control of Narcotic Substances Act 1997
- Section 517, Code of Criminal Procedure 1898
Shaukat Ali Rakhshani, J .--- This judgment of ours, aim to dispose of the captioned criminal appeal preferred by the appellant against the judgment dated 19.08.2022 ("impugned judgment") penned by learned Additional Sessions Judge-I, Sariab ("Trial Court") (to the extent of confiscation of Hino Truck bearing Registration No.NAE-503) ("vehicle in question"), which was seized in case vide FIR No.30 of 2021 dated 26.02.2021 registered with Police Station Shalkot, Quetta for the offence punishable under section 9 (c) of Control of Narcotic Substances Act, 1997 ("Act of 1997") as well as against the order dated 20.07.2024 ("impugned order"), whereby application filed under section 517 of the Criminal Procedure Code, 1898 ("Cr.P.C") for superdari was dismissed.
2. Facts necessary for disposal of the instant appeal are that on 26.02.2021 a Hino Truck Bearing Registration No.NAE-503, driven by accused persons namely Abdul Qadir and co-accused Ismatullah, while seated beside him was intercepted by the police officials, wherefrom 574 Kgs of 'Charas' and 7 Kgs of 'Opium' were recovered from the secret cavities of the vehicle in question, thus on conclusion of the investigation, they were put on trial and after a full fledged trial, co-accused Ismatullah was acquitted, whereas accused Abdul Qadir was convicted and sentenced to death under section 9 (c) read with section 15 of the Act of 1997 vide judgment dated 19.08.2022 and the vehicle in question was confiscated. The said judgment was challenged by accused Abdul Qadir before this Court, which was dismissed vide judgment dated 09.05.2024, however, the sentence of death was converted into life imprisonment.
3. Thereafter in June, 2024, the appellant filed an application under section 517 of Cr.P.C for release of his vehicle on superdari before the Trial Court, claiming to be the bonafide owner of the vehicle in question, which application was dismissed vide impugned order dated 20.07.2024, hence this appeal.
4. Heard. Record vetted with the able assistance of learned counsel for the adversarial parties.
5. Admittedly, the vehicle in question is registered in the name of appellant way back on 18.11.2020, even before the seizure of vehicle in the crime ibid, but the appellant was neither booked in the instant case as a co-accused nor figures anywhere as an absconder. Albeit, there is sluggishness on his part to approach the court in time during the trial, but merely on such ground, the appellant cannot be deprived of his vehicle, more particularly, when he is not been attributed any role in the instant case. The appellant claims that he had rented out the vehicle in question to accused Abdul Qadir and he was absolutely unaware about the said narcotics being concealed and transported in his vehicle.
6. Section 32 of the Act of 1997 contemplates certain conditions for release of vehicle, which for ease of understanding is reproduced herein below;
"32. Articles connected with narcotics.- (1) Whenever any offence has been committed which is punishable under this Act, the narcotic drug, psychotropic substance or controlled substance, materials, apparatus and utensils in respect of which, or by means of which, such offence has been committed shall be liable to confiscation.
(2) 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 conveyances used in carrying such drugs and substances shall likewise be liable to confiscation:
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."
[Emphasize added]
7. Clause (2) of section ibid empowers the trial Court to confiscate the vehicle on conclusion of the trial, provided no vehicle or conveyance shall be confiscated unless it is proved that owner thereof knew that the offence was being or was to be committed, thus it was the duty of the prosecution to establish that the owner of the vehicle was having knowledge about the presence of the narcotics in his vehicle, which is not the case. Besides above, the impugned order dated 20.07.2024 is also contrary to law and non-speaking, which cannot be allowed to hold field.
8. For the foregoing reasons, the appeal is allowed and the impugned judgment dated 19.08.2022 passed by the Trial Court to the extent of confiscation of Hino Truck bearing Registration No.NAE-503 is set aside and the order dated 20.07.2024 in respect of the dismissal of the application filed under section 517 of Cr.P.C is also set aside.
The vehicle in question be released to the appellant, after due verification and physical examination from the concerned departments.
JK/49/Bal. Appeal allowed.