MUHAMMAD SARWAR Versus THE STATE

ZAFAR PASHA CHAUDHARY, J .‑‑‑ Sarwar petitioner has impugned judgment, dated 6‑10‑2004 passed by Ikhtiar Khan, Additional Sessions Judge‑II, Haripur, through instant revision, whereby Truck No. 1386/RIE wherefrom the narcotics substance was recovered has been confiscated to State.

2. Brief facts relevant for disposal of the revision are that a raid was conducted by police on Truck No.1386/RIE, wherefrom 60 kilograms of Charas and 15 kilograms of opium were recovered. Three persons namely Mobin driver, Arif Nawaz conductor and one Asif were sitting in the truck. Pursuant to registration of F.I.R. necessary investigation was carried out whereafter 4 persons including the aforesaid occupants of the truck and one Amjid Siddique were sent up to face trial. Amjid Siddique who statedly was owner of the truck, was acquitted, however, the three persons were convicted under Article 3 of Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the Order and each of them was sentenced to undergo five years' R.I. with a fine of Rs.10,000 each. In default of payment each of them to suffer further S.I. for six months.

The appeal was preferred by the three convicts before this Court, which vide judgment of even date, was dismissed and as such their conviction and sentence was maintained.

4. The petitioner claims himself to be the owner/transferee of the truck in question. He further supplements that during trial the truck had been given to him on Superdari by the trial Court. The same remained in his custody as such till the impugned judgment dated 6‑10-2004.

5. It is contended on behalf of the petitioner that the confiscation of the truck is illegal and not sustainable because the petitioner has neither any direct nor indirect involvement in the commission of the alleged offence, i.e. carrying or transporting the narcotic substances. Even according to the prosecution the petitioner at the time of the raid conducted, was not present in the truck. The truck was confiscated under Article 14 of the Order because the narcotic substance, i.e. Charas and opium was recovered from the roof/ceiling of the truck. As per provision of the section (ibid) any vehicle used to transport or carry narcotic goods is liable to confiscation. The impugned judgment is assailed mainly on the ground that the owner or transferee as the petitioner claims to be, was not at all even aware that any contraband goods was being transported. The truck was in custody and control of the driver and the conductor, both of them have been convicted. Unless the possession of the narcotic substance recovered from the truck is proved to be in conscious possession of owner or transferee he cannot be held responsible for using the vehicle to transport the same. The conscious possession obviously means that the owner or transferee of the vehicle must have extended or expressed his permission to carry the prohibited goods and the same was transported under his direction or at least with his knowledge. The least would be acquiescence on the part of the owner. In absence of any of these elements the confiscation of truck would be highly unjust and illegal. In a cognate enactment, i.e. Control of Narcotic Substances Act, 1997, section 32 has been included. The provision of section 32 subsection (1) is para materia is the same as those of Article 14 of the Order. Under section 32 subsection (2) a proviso has been added. The proviso reads as under:‑‑

"Provided that no vehicle, vessel or other conveyance shall be liable to confiscation unless it is proved that the owner whereof knew that the offence was being, or so to be, committed. "

Bare reading of the proviso reveals that it is mandatory for the prosecution to prove that the owner had knowledge about carrying or transporting the prohibited goods. Although Article 14 of the Hadd Order does not contain any such proviso yet considering that the Hadd Order as well as Control of Narcotic Substances Act, 1997 both relate to narcotics, regarding the production and trafficking etc. Both Article 14 of the order, and section 32 of C.N.S.A. have been couched in similar and identical language. The principle laid down in proviso of section 32 can be pressed into service while confiscating the vehicle in the interest of justice. Apart from that the contents of the proviso are fully in conformity with the principle of natural justice. The truck in question is a valuable property, confiscation of the same amounts to a severe punishment No one can be punished unless he commits an offence or is directly or indirectly involved or responsible for commission of that offence. In case a person has neither direct or even indirect connection with commission of the offence, to punish him would amount to a grave miscarriage of justice. In the instant case the learned trial Judge has not even adverted to this aspect of the case. The confiscation of the truck has been ordered without applying his mind to determine whether the petitioner or for that matter any person who may be owner or transferee of the truck was involved in commission of the offence. In absence of actus reus to punish a person would not be only illegal but also violative of the fundamental rights conferred by the Constitution. No direct or indirect evidence or even the circumstance emerges from the record to show that the owner/transferee of the truck had in any manner knowledge of commission of the offence.

6. In view of the above discussion, the order of confiscating the truck cannot be sustained, the same is therefore, set aside. The matter is remanded to the learned trial Judge and if he is not available, then the learned Sessions Judge, Haripur will determine after holding inquiry or making probe in order to ascertain as to who is the owner or transferee of the truck and as such entitled to obtain its possession. As to what inquiry has to be made or the probe to be carried out will be determined by the learned Judge of course keeping in view the necessary requirements of justice. The concerned parties will be afforded opportunity and thereafter an appropriate order as to whom the truck has to be delivered will be passed.

7. The revision petition is disposed of in the above terms, i.e. the confiscation of the truck is set aside, however, to determine who is entitled to receive or obtain the possession of the truck, the question will be decided by the learned trial Judge/Sessions Judge.

N.H.Q./109/FSC Revision petition allowed.