Ameer Muhammad vs The State

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 2023 KPLJ 249

[PESHAWAR HIGH COURT]

Before Fazal Subhan, J.

Ameer Muhammad ---- Appellant

versus

The State ---- Respondent

Criminal Appeal No. 347-P/2022, decided on 26-08-2022.

(a) Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019 (XXXI of 2019) -----

    ---- Section 34B(1) and the first proviso ---- Confiscation ---- prescribed Procedure ---- An accumulative effect of the said provision ---- When Special Court established under the Act has come to the conclusion to pass an order of conviction or acquittal in relation to the accused, it shall decide the fate of seized articles, either liable to be confiscated or not.

(b) Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019 (XXXI of 2019) -----

    ---- Section 34B(1) and the first proviso ---- Confiscation ----- prescribed Procedure -----

    Two kinds of situations before reaching at on conclusion ---- First, if owner of the seized article is not known or cannot be found, in that case, the Special Court has to inquire the matter before passing an order of confiscation, Secondly, if any person claims any right in an article so seized or freezed, the Special Court shall provide him an opportunity of hearing by recording evidence in support of his claim, where after the fate of such article seized or frozen.

(c) Khyber Pakhtunkhwa Control of Narcotics Substances Act, 2019 (XXXI of 2019) -----

    ---- Section 34B(1) and the first proviso ---- Confiscation ---- prescribed Procedure ---- Mandatory provision ---- Due to the mandatory nature of the said provision, the procedure laid down therein cannot be neglected or bypassed in any manner, for simple reason, that non-compliance thereto ---- May cause immense loss to an innocent owner, who may not have any knowledge of use of his vehicle in a crime ---- By not having observed the legal procedure, contained in section 34B(2) first proviso of the Act, despite making the claim of ownership of the vehicle right before passing an order of confiscation order of the vehicle in question is illegal being violative of the above said provision ---- Appeal accepted, the case was remanded to the trail Court with the direction to adopt the proper procedure before passing any further order.

For appellant: M/s Fida Muhammad Afridi and Abidullah. Advocate

For State: Ms. Abida Safdar, Additional Advocate General.

JUDGMENT

FAZAL SUBHAN, J.- Though instant criminal appeal, the appellant has challenged the hudgment dated 22.03.2022, passed by the learned Additional Sessions Judge-II/ Judge Model Court/Judge Special Court, Shabaadar, District Charsadda, to the extent of confiscation of motorcar bearing Registration No. AGJ-715/Islamabad. 

2. Facts of the case are that on 25.07.2020, the above said motorcar was intercepted by the local Police of Police Station Sro Kally, Charsadda,  being driven by accused Malik Aman s/o Faqir Hussain while co-accused Noor Zaman s/o Ali Zaman was present on front seat and on the pointation of accused, four packets of chars, total 4800 grams and four packets of opium, total 5100 grams were recovered from left side back door of the motorcar and case FIR No. 207, dated 25.07.2020, under section 9-D CNSA was registered.

3. Record depicts that initially appellant applied for custody of the vehicle before the learned trial Court/Additional Sessions Judge, Shabqadar, but remained unsuccessful whereafter he filed criminal appeal No. 645-P/2020 before this Court, and on 14.12.2020, directions to the following effect were issued:-

    "The appellant candidly stated that he is bonafide owner of the car in question and was not in knowledge that the car would be used for the commission of offence, as the same has already been given to Excellent  

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