Muhammad Kashif vs State etc.

Stereo. HC JD A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT

MULTAN BENCH, MULTAN

JUDICIAL DEPARTMENT

Criminal Appeal No.411 of 2020 (Muhammad Kashif Vs. The State and another)

JUDGMENT

Date of hearing 13.05.2026 Appellant by Mr. Mehmood ul Hassan, Advocate.

State by: Mr. Laeeq ur Rehman, Assistant District Public Prosecutor .

SADIQ MAHMUD KHURRAM, J. The appellant namely Muhammad Kashif has submitted the present appeal against the order dated 09.06.2020 passed by the learned Additional Sessions Judge/Model Criminal Trial Court , Rajanpur vide which order the application as filed by the appellant seeking the setting aside of the order of confiscation of the vehicle bearing Registration No. LET/4040 was dismissed.

2.Brief facts of the case are that the case F.I.R. No.107 of 2015 dated 09.03.2015 was registered in respect of an offence under section 9 (c) of the Control of Narcotic Substances Act,1997 at the Police Station City Rajanpur,District Rajanpur and according to the narrative of the F.I.R. ,Muhammad Hussain,Razia Bibi and Kashif were apprehended by the police while travelling on the vehicle bearing Registration No. LET/4040 and from the search of the bag placed on the front seat of the vehicle ,61 kilograms of Charas was recovered whereafter the investigation of the case was concluded and the case was sent for trial and after the trial of the case, Muhammad Hussain was convicted and sentenced, and the narcotic substance and vehicle bearing Registration No. LET/4040 were ordered to be confiscated by

the learned trial court . Muhammad Hussain successfully assailed his conviction and sentence and was ordered to be acquitted by this Court vide judgment dated 21.01.2020 passed in Crl.Appeal No. 1269 of 2017 however no order regarding the disposal of vehicle bearing Registration No. LET/4040 was passed by this Court. The appellant namely Muhammad Kashif, submitted an application seeking the setting aside of the order of confiscation of the vehicle bearing Registration No. LET/4040; however, vide order dated 09.06.2020 passed by the learned Additional Sessions Judge/Model Criminal Trial Court , Rajanpur, the said application of the appellant was dismissed.

3.Learned counsel for the petitioner contended that petitioner moved an application for the return of the vehicle but the same was dismissed; that petitioner being the bona fide purchaser of the vehicle in question had a right to enjoy his property;that the appellant was not aware of the use of the vehicle for the transport of any narcotic substance; that the vehicle could not have been confiscated without notice issued to the appellant .

4.The learned Assistant District Public Prosecutor submitted that as the learned trial court ordered the vehicle bearing Registration No. LET/4040 to be confiscated by the learned trial court and no order regarding the disposal of vehicle bearing Registration No. LET/4040 was passed by this Court while passing the judgment dated 21.01.2020 in Crl.Appeal No. 1269 of 2017 therefore the instant appeal was misconceived.

5.We have heard the learned counsel for the appellant ,the learned Assistant District Public Prosecutor and perused the record with their able assistance.

6.The perusal of the record reveals that the case F.I.R. No.107 of 2015 dated 09.03.2015 was registered in respect of an offence under section 9 (c) of the Control of Narcotic Substances Act,1997 at the Police Station City Rajanpur,District Rajanpur and according to the narrative of the F.I.R. , Muhammad Hussain,Razia Bibi and Kashif were apprehended by the police while travelling on the vehicle bearing

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Registration No. LET/4040 and from the search of the bag placed on the front seat of the vehicle,61 kilograms of Charas was recovered whereafter the investigation of the case was concluded and the case was sent for trial and after the trial of the case, Muhammad Hussain was convicted and sentenced, and the narcotic substance and vehicle bearing Registration No. LET/4040 were ordered to be confiscated by the learned trial court . Muhammad Hussain successfully assailed his conviction and sentence and was ordered to be acquitted by this Court vide judgment dated 21.01.2020 passed in Crl.Appeal No. 1269 of 2017 however no order regarding the disposal of vehicle bearing Registration No. LET/4040 was passed by this Court. The appellant namely Muhammad Kashif, submitted an application seeking the setting aside of the order of confiscation of the vehicle bearing Registration No. LET/4040; however, vide order dated 09.06.2020 passed by the learned Additional Sessions Judge/Model Criminal Trial Court, Rajanpur the said application of the appellant was dismissed.The question as to whether the vehicle in question could validly be confiscated under section 32 of the Control of Narcotic Substances Act,1997. Subsection (2) of section 32 of the Control of Narcotic Substances Act,1997 provides as under:

"(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 shal 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."

From the bare perusal of subsection (2) of section 32 of the Control of Narcotic Substances Act,1997, it is clear that any vehicle, vessel and other conveyance used to hold or carry intoxicant "shall he liable to confiscation" along with the intoxicant. The procedure or manner provided for confiscation has been laid down under section 33 of the

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Control of Narcotic Substances Act,1997, which reads as under:

"Procedure for making confiscation.---(1) 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)Where any article seized under this Act appears to be liable to 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."

Section 32 of the Control of Narcotic Substances Act,1997 is controlled by section 33 of of the Control of Narcotic Substances Act,1997, which provides that even in case of acquittal of a person charged with offence, such acquittal of the accused ipso-facto will not absolve the vehicle used in the commission of offence of liability of the consequences and the Special Court shall decide whether any article frozen or seized in connection with such offence is liable to confiscation. The sections 32 and 33 of the Control of Narcotic Substances Act,1997 empower the trial court to order confiscation of a vehicle used in transport of narcotic substance subject to that, according to the provisos to 32 and 33 of the Control of Narcotic Substances Act,1997 , the vehicle shall not be confiscated unless it is proved that owner was aware that his vehicle was being used in the crime and in this respect burden has been placed on the prosecution to establish that the owner of the vehicle had the knowledge of his vehicle being used in the crime. In the instant case, the record of the case is silent as to whether any query or probe had been made during investigation of the case or even during trial or any substantial proof was brought on record by the prosecution about involvement of the appellant i.e. the owner of the vehicle or his knowledge of transporting the narcotic substance by the accused named in the F.I.R. .

7.With regard to the objection raised by the learned Assistant District Public Prosecutor,it is clear that where the case in which an order under section 517, Cr.P.C. was passed is in itself pending before

a Court of appeal or revision, that Court can modify, annul or alter such an order under section 520, Cr.P.C. Section 520, Cr.P.C. empowers superior Court to interfere with an order passed by a lower Court under sections 517, 518 and 519, Cr.P.C. but it does not in any way restrict the trial Court from passing an order consequent to and in compliance with the order of superior Court, but where no such case is pending, then an application lies under this section to the Court to which appeals or revisions ordinary lie from the order of subordinate court under section 517, Cr.P.C. Reference in this respect is to be made to the cases of Sardara v. Boota ( PLD 1950 Lah. 97), Ghulam Akbar v. The State and another ( PLD 1958 Lah. 212), Ahmad Bakhsh v. The State and another ( PLD 1966 Lah. 918), Jalal Khan alias Jalley Khan v. The State and another ( PLD 1975 Lah. 45) and Manzoor Hussain Jatoi v. The State (1997 PCr.LJ 500).

8.Thus keeping in view the above facts and circumstances of the case the order dated 09.06.2020 passed by the learned Additional Sessions Judge/Model Criminal Trial Court , Rajanpur is set aside and the case is remanded back to the learned trial court with the directions to proceed with the claim of the appellant regarding the bona fide ownership of the vehicle bearing Registration No. LET/4040 and determine direct or indirect, active or dormant, involvement of the appellant/claimant in the commission of the offence followed by an appropriate order within the meaning of section 32 read with section 33 of the Control of Narcotic Substances Act,1997.

(MUHAMMAD AMJAD RAFIQ ) (SADIQ MAHMUD KHURRAM)

JUDGE JUDGE

Approved for Reporting

Judge