ZULFIQAR ALI BUTT Versus THE STATE

Car bearing Registration No.GAF-6404 (Toyota Corolla Model 1982), according to the petitioner Zulfiqar Ali, had been purchased by the petitioner from its previous owner Chaudhary. Traders . It is the case of the petitioner that he is carrying on business of renting the cars at Gujranwala and the said car was also rented out. According to the petitioner, on 14-f-1993, three persons, namely, Mahmood alias Moodi, Muhammad Ayub and Muhammad Asghar came to the office of the petitioner at Gujranwala informing Abdul Latif, Attorney and Manager of the petitioner, who used to work at the office of the petitioner at Gujranwala, that their sister was arriving at Islamabad Airport on the next day i.e. 15-6-1993 and for which purpose he wanted to hire a car. After completion of necessary formalities, according to the petitioner, the said car was rented out to them, who undertook to return the car on 15-6-1993 in the afternoon, but the car was not returned and petitioner's Manager went to the house of Mahmood where Muhammad Ayub came out and assured the Manager of the petitioner that the car would be returned, but as the car was not returned in spite of repeated requests, petitioner lodged report on 18-6-1993 at Police Station Kotwali, Gujranwala, in which all the aforesaid facts were narrated.

2. According to the petitioner, later on it transpired that the said Mahmood alias Moodi and three other persons were apprehended in Crime No.667 dated 15-6-1993 under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979, of Police Station Attock Khurd, the allegation against them being that they had hidden six kilograms of Charas in the back bumper of the said car. The accused were tried by the A.D.C.(G), Magistrate First Class, Attock, and, during the trial, the car in question was obtained by the petitioner on Superdari . According to the petitioner, he produced the car before the trial Court on each date of hearing.

3. According to the petitioner, on 8-3-1994, when the petitioner was not present, confessional statements of the accused were recorded by the trial Court and, on the basis of the said confession all the four were convicted and sentenced to undergo eight months and fifteen days' R.I. and also to pay a fine of Rs. 2,000 each in default whereof it was further directed that they would undergo two months' R.I. In the said judgment dated 8-3-1994 of the trial Court, the following order was also passed:--

"The case property i.e. Charas shall be destroyed after the expiry of period of appeal or revision if any and the car No-GAF-6404 Toyota Corrola, involved in this case is hereby confiscated to State."

4. When the petitioner learnt about the said order of confiscation of the car in question by the trial Court, he approached the learned Sessions Judge, Attock, through a revision application, but the said revision was dismissed by the learned Sessions Judge, Attock, by order dated 4-7-1994. The reasoning of the learned Sessions Judge, Attock, in rejecting the revision, filed by the petitioner, is as follows:--

"The accused have confessed their guilt by making confessional statement before the trial Court. The car is the case property having been used by the accused in commission of offence. Learned trial Court, to my mind, has rightly confiscated this car in favour of the State. The contention of the learned counsel for the petitioner that the car was given to the accused by the petitioner in good faith, does not appeal to a prudent mind and it is mere an attempt to get the car. The petitioner should have been vigilant and careful while handing over his car to any body."

5. The petitioner has filed the present criminal revision before this Court under Article 203-DD of the Constitution praying that the orders/directions of the trial Court and the learned Sessions Judge, Attock, regarding confiscation of his car be set aside. In support of the present revision petition I have heard the arguments of Mr. M. Fayyaz Ahmad Khawaja, Advocate, and also Ch. Muhammad Ibrahim, Advocate, for the State.

6. In my view, a case on merit is made out for interference, but a question regarding the jurisdiction of this Court was raised. According to the State Counsel, the matters stood finally closed by the order of the learned Sessions Judge, Attock, dated 4-7-1994, dismissing the revision of the petitioner, and a second revision before this Court is not competent. Reference in this context has been made to section 439(4)(b) of the Code of Criminal Procedure. Section 439, Cr.P.C. confers revisional power on the High Court. According to section 439-A, in the case of any proceeding before a Magistrate, the record of which has been called for by the Sessions Judge or which otherwise comes to his knowledge, the Sessions Judge may exercise any of the powers conferred on the High Court by section 439. Section 439(4)(b) provides that nothing in this section shall be deemed to authorise a High Court to entertain any proceedings in revision with respect to an order made by the Sessions Judge under section 439-A.

From the aforesaid provisions it follows that in case an order has been passed by the Sessions Judge in revision under section 439-A, Cr.P.C. such order cannot be challenged under section 439, Cr.P.C. before the High Court in a second revision. The preliminary objection about the maintainability and competence of the present revision petition before this Court raised on behalf of the State is based on the aforesaid provisions of the Cr.P.C. If this Court, while exercising powers, in revision or otherwise, under Article 203-DD, exercises identical powers of the High Court under section 439, Cr.P.C., it cannot travel beyond the parameters of section 439, Cr.P.C., the contention raised on behalf of the State that the present revision petition under Article 203-DD of the Constitution is not maintainable would have substance. However, a reference to Article 203-DD of the Constitution clearly indicates that this Court's powers under the said Article are not restricted by the provisions of section 439, Cr.P.C. Article 203-DD of the Constitution may be reproduced below:--

"203-DD.-- (1) The Court may call for and examine the record of any case decided by any criminal Court under any law relating to the enforcement of Hudood for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed by, and as to the regularity of any proceedings of such Court and may, when calling for such record, direct that the execution of any sentence be suspended and, if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.

(2) In any case the record of which has been called for by the Court, the Court may pass such orderas it may deem fit and may enhance the sentence:--

Provided that nothing in this Article shall be deemed to authorise the Court to convert a finding of acquittal into one of conviction and no order under this Article shall be made to the prejudice of the accused unless he has had an opportunity of being heard in his own defence.

(3) The Court shall have such other jurisdiction as may be conferred on it by or under any law."

8. A bare perusal of the aforesaid Article shows that the language employed in the Article is not identical to section 439, Cr.P.C. Further, no restriction has been placed upon the powers of this Court under Article 203-DD of the Constitution as has been placed on the High Court under section 439(4)(b), Cr.P.C. The marginal heading of Article., 203-DD i.e. "Revisional and other jurisdiction of the Court" cannot place any restriction on the powers of this Court to entertain revision under Article 203-DD against an order passed in revision by a Sessions Judge. I am, therefore, of the view that the present revision petition under Article 203-DD against the order dated 4-7-1994 of the learned Sessions Judge, Attock, is competent and maintainable.

9. On merits, it may only be observed that on record there was a claim of the petitioner about the ownership of the car. The car had been given on Superdari to the petitioner during the trial before the trial Court. The trial Court passed an order for confiscation of the car in the absence of the petitioner and without dealing with the claim of the petitioner that he was the owner of the car. The reasoning of the learned Sessions Judge that the petitioner should have been vigilant and careful while handing over his car to any body is too general to become a sound basis of the order rejecting the claim of the petitioner. As the claim had been made by the petitioner that the said car belonged to him and that he was not involved in the offence against the accused, the trial Court should have specifically considered the case of the petitioner and then passed a speaking order dealing with the case of the petitioner for delivery of the car to him.

10. The learned counsel for the State had argued that the trial Court in such a case had adequate powers to confiscate the vehicle in which the contraband articles are found. The powers of the trial Court to confiscate such vehicles cannot be disputed, but this does not mean that in case claim is made by a third party that the vehicle belongs to him and that he is not involved in the commission of the offence it can be brushed aside without consideration of the plea of the third party and a decision, on merits, on such plea. If the contention of the learned counsel for the State, as advanced by him, is accepted it would lead to absurd and unjust results. For example, a person's car may be taken away from his house or office by a third party without the knowledge of the owner and then used in the commission of an offence under the Prohibition (Enforcement of Hadd) Order, 1979, and in such a case, if claim is made by the owner that the car may be delivered to him and may not be confiscated, in case the accused are convicted, the trial Court would be passing an illegal and unjust order of confiscation if the claim of such owner is genuine.

11. In the circumstances, this revision petition is allowed to the extent that the impugned order dated 4-7-1994 of the learned Sessions Judge, Attock, passed in Criminal Revision No.24 of 1994, and the order dated 8-3-1994 of the A.D.C.(G)/Magistrate First Class, Attock, in so far as it relates to the confiscation of the said car, are set aside. The matter is remanded to the trial Court for decision on the claim of the petitioner that the car in question E bearing Registration No.GAF-6404 Toyota Corolla belongs to him and that he is not involved in the commission of the offence and, after consideration of such claim and giving an opportunity to the petitioner to place such evidence/documents in support of his claim as he may desire, pass a speaking order on the claim of the petitioner. The trial Court is further directed to pass such order within two months from today.

N.H.Q./906/FSC Case remanded.