Khan MUHAMMAD KHAN vs THE STATE

ORDER

' WAHID BUX BROHI, J.---This revision application under section 439, Cr.P.C. Impugns the order dated 13-4-2002 passed by learned Special Court (Control of Narcotic Substances), Karachi Division declining to recall the confiscation order in respect of car, used in commission of the offence.

2. The relevant facts forming the background of this matter are that on 31-8-2001 a head constable of Police Station Mochko on receiving spy information stopped a car bearing Registration No,A-1037 near Octroi Post Yousuf Goth and found two persons sitting therein namely, Ghulam Mustafa and Saeed Ahmed, On search he secured 150 rods of Charas concealed in the back of the driving seat and 150 rods of Charas concealed in the back of the adjoining front seat. The total weight of the Charas was found to be four kilograms. On trial both of them were found guilty by learned Special Court (Control of Narcotic Substances), Karachi Division and were convicted for an offence punishable under section 9(c) of the CNS Act, 1997 and each of them was sentenced to imprisonment for 4 years and fine of Rs,50,000. In case of default in payment of fine they were ordered to suffer imprisonment for 3 months more.

3. While delivering the judgment dated 9-4-2003 learned trial Court passed an order in respect of the property in the following terms: "The case property viz. Charas be destroyed after expiry of appeal period and the car bearing Registration No,A-1037 which is used in commission of offence shall be auctioned and the amount released from auction, shall be deposited in Government treasury. The cash recovered from each accused are not claimed by accused, therefore, the same also he deposited in Government treasury."

4. The order was challenged by applicant Khan Muhammad claiming that he is actual owner of the car and the aforesaid order was not sustainable legally. Learned Special Court after hearing learned counsel for applicant and the State Counsel dismissed the application, inter alia, observing as under: "The applicant himself admitted that he had sold out the car which was found in possession of accused persons from whom huge quantity of narcotics was recovered which was concealed in the hidden cavities of the car. This shows that car was used in the commission of offence. The applicant had also sold out the car, therefore, he is not competent to submit application for return of the car in spite of the fact that the same is in the name of applicant. The car was also used while trafficking of narcotics, therefore, the same will be confiscated as required under section 33 of CNS Act, 1997."

5 We have heard Mr. Latifur Rehman Sarwari learned counsel for applicant and learned State Counsel and perused the relevant material, available on record.

6. Mr. Sarwari contended that as per Certificate of Registration applicant is the owner of vehicle and, although, he sold the vehicle to accused Ghulam Mustafa on instalments basis and such agreement was duly executed, and the applicant received Rs,40,000 out of the aforesaid sale consideration and delivered the possession of the vehicle, yet in legal sense the applicant was owner, therefore, before the order of confiscation he was entitled to notice within the meaning of section 32 of the CNS Act, 1997. He further argued that within the meaning of proviso to section 33 of CNS Act, 1997 also the applicant was entitled to notice. He relied on Haji Abdul Razzak v. Pakistan PLD 1974 SC 5 in support of his contentions. Mr. Javed Akhtar learned State Counsel submitted that on verification through Nazir of this Court it has been found that registration of the vehicle is still in the name of applicant Khan Muhammad.

7. We have considered all these contentions carefully. It goes without saying that the vehicle was sold and part payment of the sale consideration of Rs,40,000 was received by the applicant. He handed over possession of the same to buyer/accused who plied it by exercising all lawful rights as owner after having purchased the same. No doubt in view of the registration papers the applicant can claim to be the owner but it is again admitted position that the vehicle/car in question was sold out on instalments and practically in view of the tradition in vogue the ownership had been transferred/assigned to the applicant and only legal formalities etc. In the record were kept back on account of balance amount. The term owner' used in section 32 of the CNS Act, 1997 at least for the purpose of this Act on the face of it is deemed to include the new owner to whom car was sold and possession delivered. We would, therefore, agree with learned trial Court that the car, which was used in commission of offence, was liable to confiscation.

8. The intent and object behind enacting Control of Narcotic Substances Act, 1997 was, inter alia, to control the production, B processing and trafficking of narcotics etc. It is a special law and the effective provisions thereof cannot be defeated on technicalities. In this view of the matter, indeed, the property order, reproduced above, is wholly in accord with the provisions of this law. The subsequent order declining recalling of the confiscation order is equally not open to question. The cited authority relates to a Customs case and on facts is not applicable to the instant matter.

Consequently, the application is dismissed. The amount of Rs,60,000 deposited in pursuance of order dated 3-7-2003 passed by this Court as per office endorsement dated 2-8-2003 may be returned to appellant along with original registration documents, furnished in the instant proceedings.