vehicle cannot be forfeited or confiscated to the state under Section 517 of the Code of Criminal Procedure (CrPC) if the accused has been acquitted of all charges.
The unique point that the Lahore High Court decided in the case of Muhammad Akram was that a vehicle cannot be forfeited or confiscated to the state under Section 517 of the Code of Criminal Procedure (CrPC) if the accused has been acquitted of all charges.
### Detailed Reasoning:
1. **Acquittal Implications:** The court emphasized that since Muhammad Akram was acquitted of all charges in the criminal case, the legal basis for confiscating his Hyundai Shehzore mini-truck no longer existed.
2. **Section 517 of CrPC:** This section typically deals with the disposal of property involved in a crime after the conclusion of a trial. The court ruled that since Akram was acquitted, the conditions under which his vehicle could be confiscated were not met.
3. **Restoration of Property:** The court ordered that the truck be restored to Muhammad Akram. This decision underscores the principle that the property of an acquitted person should not remain confiscated, as there is no longer a conviction to justify such a seizure.
This decision is significant because it clarifies the application of Section 517 of the CrPC in relation to acquitted individuals, ensuring that their property rights are protected once they are found not guilty.
23.
The Additional Sessions Judge rightly dismissed the Appellant's application as his court had become functus officio after issuing the final judgment and order. The application for the restoration of the truck No. LWC-8370 should have been directed to this High Court, as the court of appeal, under Section 520 Cr.P.C.
24.
Upon acquittal, the Appellant became entitled to reclaim the truck unless it was proven that he had knowledge of its use in the commission of the offence. Since the confiscation order was part of the final judgment, and no specific order was issued regarding the truck in the appeal judgment, the High Court retains the jurisdiction to pass necessary orders under Section 520 Cr.P.C.
25.
In light of the principles elucidated above, the application for restoration of the vehicle should be examined considering the acquittal judgment. The appellate court has the discretion to restore the property to its rightful owner if it finds no justifiable reason for continued confiscation.
26.
Therefore, the impugned order dated 04.09.2023 is set aside. The case is remanded to the High Court to consider the Appellant's application for the restoration of truck No. LWC-8370 under Section 520 Cr.P.C.
**Conclusion**
27.
The appeal is allowed to the extent indicated above. The High Court is directed to consider the application for the restoration of the truck No. LWC-8370 in accordance with the law and the observations made in this judgment.
28.
The parties are directed to appear before the High Court on the next date of hearing.
(Tariq Saleem Sheikh)
Judge
---------------------------
This judgment is announced in open court on 31.1.2024.
---------------------------
(Note: The above draft contains a synthesized summary of the main points discussed in the provided judgment text, focusing on the legal reasoning and ultimate decision regarding the appeal. Minor edits have been made for clarity and coherence.)
AHORE HIGH COURT,
BAHAWALPUR BENCH, BAHAWALPUR
JUDICIAL DEPARTMENT
Criminal Appeal No.460/2023
Muhammad Akram
Vs.
Additional Sessions Judge and another
JUDGMENT
Date of hearing
31.1.2024
For the Appellant:
Mr. Mehmood Ahmad Bhatti, Advocate.
For the State:
Mr. Najeeb Ullah Khan Jatoi, Deputy
Prosecutor General.
Research assistance:
Mr. Umair Ali Khan, Research Officer,
LHCRC.
Tariq Saleem Sheikh, J. – On 30.08.2007, Mukhtar
Ahmad/ASI reported to the SHO of Police Station Anayti, Tehsil Khirpur
Tamewali, District Bahawalpur, that he was on patrol duty with fellow
officials in Mauza Jhok Lal. Around 7:00 p.m., he received intelligence
that a Hyundai Shehzore mini-truck with Registration No. LWC-8370
would transport around 60/65 maunds of ground poast concealed under
Khiskhas bags from Mailsi Saifan to Multan via Kachi Pakki Chowk.
Acting on this tip-off, Mukhtar Ahmad/ASI established a picket at a
strategic location, and when truck No. LWC-8370 passed by, Mukhtar
Ahmad/ASI stopped it based on the informant‟s guidance. Three persons
got out of the vehicle and fled into the darkness, leaving behind only the
driver, Shakeel Ahmad, who was apprehended. Shakeel Ahmad disclosed
the identities of his two accomplices as Muhammad Akram (the Appellant)
and Muhammad Jaffar. The third was not known to him. Mukhtar
Ahmad/ASI inspected the truck with the help of his squad and recovered
ground poast weighing 65 maunds. He seized both contraband and the
truck. In pursuance of this complaint, FIR No. 188/2007 was registered
against the aforementioned accused under section 9(c) of the Control of
Crl. Appeal No.460/2023
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Narcotic Substances Act, 1997 (CNSA) at the same police station. Later
on, the Appellant and Jaffar were also arrested.
2.
The Appellant (Muhammad Akram) and his co-accused,
Jaffar and Shakeel Ahmad, were tried by the Additional Sessions Judge,
Khairpur Tamewali, who convicted them under section 9(c) of the CNSA
vide judgment dated 15.12.2011. He sentenced each of them to life
imprisonment with a fine of Rs.30,000/-, and in default thereof, to undergo
simple imprisonment for one year and four months each, with the benefit
of section 382-B of the Code of Criminal Procedure 1898
(hereinafter referred to as the “Code” or “Cr.P.C.”) The Additional
Sessions Judge further directed that Hyundai Shehzore No.LWC-8370
shall be confiscated in favour of the State and dealt with in accordance
with the law after the expiry of the period of appeal. The Appellant and his
co-convicts filed separate appeals against their conviction and sentence
(Appeal Nos. 513/2011, 514/2011 and 16/2012), which were accepted by
this Court by a common judgment dated 21.11.2012, and all of them were
acquitted. However, the learned Division Bench did not pass any order
regarding truck No.LWC-8370.
3.
On 31.07.2023, the Appellant filed an application with the
Additional Sessions Judge, Khairpur Tamewali, asking for possession of
truck No. LWC-8370. The Judge dismissed it by an order dated 04.09.2023
for not being maintainable because his court had become functus officio.
This appeal under section 48 of the CNSA is directed against that order.
4.
Mr. Mehmood Ahmad Bhatti, Advocate, argued that the
Appellant had been falsely implicated in case FIR No. 188/2007. The
prosecution failed to substantiate the charges, as a result of which this
Court acquitted him by judgment dated 21.11.2012. He contended that
since the Appellant was the rightful owner of truck No. LWC-8370, he was
entitled to reclaim its possession. Mr. Bhatti further contended that the
application before the Additional Sessions Judge was maintainable, and he
had misinterpreted the law in ruling otherwise. Mr. Bhatti explained that
the Appellant had been detained in another criminal case and was released
from jail in August 2022. He approached the trial court immediately
thereafter for the restoration of the vehicle. Hence, there was no delay in
pursuing legal recourse.
Crl. Appeal No.460/2023
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5.
Mr. Najeeb Ullah Khan Jatoi, Deputy Prosecutor General,
supported the impugned order dated 04.09.2023. He argued that the
Appellant's application for the restoration of truck No. LWC-8370 was
time-barred and, even otherwise, the Additional Sessions Judge lacked the
authority to consider it. He contended that even this Court was not
empowered to entertain such an application. According to him, the High
Court could issue an order under Section 520 Cr.P.C. while an appeal or
revision was pending and not after their decision.
6.
Mr. Jatoi next argued that truck No. LWC-8370 had been used
for the transportation of narcotics. Therefore, the Additional Sessions
Judge confiscated it in favour of the State under section 32 of the CNSA.
Although this Court acquitted the Appellant and his co-accused, the
confiscation order issued by the trial court still stands. He contended that
the Appellant‟s acquittal by this Court was based on the benefit of doubt,
which did not warrant the restoration of the truck.
7.
In rebuttal, Mr. Bhatti passionately argued that since this
Court had unconditionally acquitted the Appellant and nullified his
conviction and sentence, there were no justifiable grounds for denying him
the logical consequences of that verdict. He controverted Mr. Jatoi‟s claim
that the truck could not be delivered to the Appellant because his acquittal
was based on the benefit of doubt. Referring to various legal precedents,1
Mr. Bhatti contended that acquittal is always with “honour” and the law
does not make any gradation. He insisted that the Appellant‟s acquittal was
inherently honourable, so the truck should be handed over to him.
Opinion
8.
Chapter XLIII of the Code of Criminal Procedure 1898
delineates the procedure for disposing of properties involved in criminal
proceedings. Section 517 stipulates that upon the conclusion of an inquiry
or trial in a criminal court, the court may make such order it deems
appropriate for the disposal of any property or document presented before
it or under its custody or regarding which an offence appears to have been
committed, or which has been used for the commission of an offence. The
Explanation to section 517 elucidates that the term “property”
1 Dr. Muhammad Islam v. Government of NWFP and others (1998 SCMR 1993); Bismillah v. The State
(2021 MLD 1131); Mohibullah and another v. The State (2018 P.Cr.LJ 954); and Muhammad Tariq and
Crl. Appeal No.460/2023
- 4 -
encompasses not only assets originally in possession or under the control
of any party but also any property into or for which the same may have
been transformed or exchanged, along with anything acquired through such
conversion or exchange, whether immediately or subsequently. Section
518 provides that instead of issuing an order under section 517, the court
may direct the property to be delivered to a Magistrate of the First Class,
who will deal with it as if it had been seized by the police and reported to
him, and follow the same procedure prescribed by law for that purpose.
Section 519 addresses cases where a person is convicted of any offences
which include, or amount to, theft or receiving stolen property. Section 520
stipulates that any court of appeal, confirmation, reference, or revision may
suspend any order under sections 517, 518, or 519 Cr.P.C. issued by a
subordinate court, pending review by the former court, and may amend,
modify, or revoke such order and issue any further orders deemed just.
9.
In Central Cooperative Bank Ltd., Sargodha v. Ahmad
Bakhsh (PLD 1970 SC 343), the Supreme Court of Pakistan ruled that
proceedings under section 517(1) Cr.P.C. are distinct from inquiries or
trials under the Code. These are collateral proceedings for disposal of the
property or document initiated after the connected inquiry or trial
concludes. The Supreme Court highlighted that the phrase “as it thinks fit”
in subsection (1) of section 517 indicates that the court‟s power to dispose
of property and documents thereunder is discretionary. However, this
discretion must be exercised in accordance with sound judicial principles
and not arbitrarily. The property or the document required to be disposed
of, as laid down in subsection (1), must have been produced before the
court or is in its custody, or regarding which any offence appears to have
been committed or which has been used for the commission of any
offence. According to the disposal methods outlined in subsection (1), the
property or document concerned may be ordered to be disposed of by
destruction, confiscation, or delivery to any person claiming entitlement to
its possession.
10.
There is no difficulty in understanding that if a case in which
an order under sections 517, 518, or 519 Cr.P.C. has been passed is
pending before a court of appeal or revision, that court has the authority to
modify, annul, or alter such an order under section 520 Cr.P.C. However, a
Crl. Appeal No.460/2023
- 5 -
catena of rulings has held that when there is no ongoing case, an
application can be made under section 520 Cr.P.C. to the court to which
appeals or revisions ordinarily lie from the court that passed the order
under sections 517, 518, or 519 Cr.P.C. There was some conflict of judicial
opinion on this issue in the pre-partition era, but post-partition, the
decisions of the courts in Pakistan are consistent that section 520 Cr.P.C.
operates independently. In Sardara v. Boota (PLD 1950 Lahore 97), the
question arose whether the Sessions Judge was competent to hear an
appeal against the trial Magistrate‟s order regarding the disposal of the
property involved in the case. It was argued that section 520 Cr.P.C. only
conferred such power to the courts handling appeals or revisions. However,
the High Court ruled that section 520 Cr.P.C. does not impose such a
restriction and clarified that it allows appellate and revisional courts to
intervene in orders made under section 517, even if the primary case has
not yet reached them. It observed that the term “court of appeal” in section
520 Cr.P.C. is not strictly limited to a court before which an appeal is
pending. Upon examining the facts and circumstances of the case before it,
the High Court concluded that the Sessions Judge was competent under
section 520 Cr.P.C., as the authority to which an appeal would have
ordinarily been presented, to interfere with the order passed by the
Magistrate.
11.
In Ghulam Akbar v. The State and others [PLD 1958 (W.P.)
Lahore 212], A.R. Changez J. held that the Code of Criminal Procedure
does not explicitly provide for an appeal against an order made under
section 517 Cr.P.C. He noted that section 520 Cr.P.C. does not state that an
appeal lies under it against such orders; it allows certain courts to stay,
modify, alter, or annul orders made by subordinate courts. This jurisdiction
granted by section 520 Cr.P.C. is unique and not reliant on appellate or
revisional powers. Changez J. explained that if an order under section 517
is part of the main order, which is the subject matter of an appeal, the
appellate court can modify or annul it under section 423(d) Cr.P.C. without
recourse to section 520 Cr.P.C. However, if the main case is not pending,
the courts specified in section 520 are competent to pass necessary orders.
Changez J. emphasized that filing an application under section 520 Cr.P.C.
to the relevant court suffices to address orders issued by subordinate courts
under sections 517 to 519 without the need for a separate appeal or
Crl. Appeal No.460/2023
- 6 -
revision. He noted varying interpretations of such applications, some
viewing them as appeals and others as unique revisional proceedings.
However, he preferred to characterize this jurisdiction as “special” and
“supervisory”, which allows superior courts to rectify orders of subordinate
courts. Changez J. further explained that section 520 Cr.P.C. can be
invoked to restore property to its rightful owner, even if it was previously
delivered to another party by a subordinate court. In an appropriate case,
the High Court may also exercise inherent jurisdiction under section 561-A
Cr.P.C., which empowers it to make such orders as may be necessary to
give effect to any order under the Code, prevent abuse of any court process
or otherwise secure the ends of justice.
12.
In Ahmad Bakhsh v. The State and another [PLD 1966
(W.P.) Lahore 918], it was contended that the High Court could only
exercise its powers under section 520 Cr.P.C. when dealing with an appeal
under section 423(1)(d) Cr.P.C. or a revision under section 439 Cr.P.C.,
and had no authority to act under this section after an appeal or revision
had been disposed of. The High Court disagreed with this view, reasoning
that such an interpretation would render section 520 Cr.P.C. redundant. It
noted that the appellate and revisional courts possess powers under the
Code of Criminal Procedure, independent of section 520 Cr.P.C., to pass
any order for the disposal or delivery of any property about which an order
has been made under section 517 Cr.P.C. Hence, while hearing an appeal
or revision, the High Court can set aside an order under section 517
Cr.P.C. and substitute it with its own order, without invoking section 520
Cr.P.C. If section 520 Cr.P.C. were only applicable during a pending
appeal or revision, it would serve no purpose, as the appellate or revisional
court could still make similar orders. This provision is intended for cases
beyond those where action can be taken through appeal or revision. The
fact that an appeal or revision is preferred against an order of the trial court
does not debar a person from seeking a remedy under section 520 Cr.P.C.
The phrase “any court of appeal, confirmation, reference, or revision”
refers to courts to which appeals, references, confirmations, or revisions
ordinarily lie against the trial court‟s judgment and decision, and not a
court to which an appeal, etc., has, in fact, been preferred. Ordinarily, there
may appear to be no difference between a court of appeal and an appellate
court, and these terms are sometimes used to convey the same meanings.
Crl. Appeal No.460/2023
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However, in the context of section 520 C.P.C., the appellate court is a
court that is seized of an appeal, and a court of appeal refers only to which
appeals ordinarily lie from the court that passed the order. Thus, even if the
appeal has been disposed of, a court of appeal retains the authority to
entertain an application under section 520 Cr.P.C.
13.
In Jalal Khan alias Jalley Khan v. The State and another
(PLD 1975 Lahore 45), the High Court clarified that the order for the
disposal of property under section 517 Cr.P.C. does not necessarily have to
be issued simultaneously with the judgment of the case. It cited several
authorities to underscore that there is no specific time limit for filing a
restoration application under section 517 Cr.P.C. Such applications can be
lodged within a reasonable period following the acquittal of the accused. It
emphasized that section 517 Cr.P.C. imposes a duty on the court to make
an order regarding the disposal of property under its custody, which
continues until the property is disposed of, either through destruction or
transfer out of the court‟s possession. Additionally, the High Court
highlighted that the absence of a specified time limit indicates that the
exercise of powers under sections 517 and 520 Cr.P.C. is not contingent
upon the availability or pendency of an appeal or revision in the original
case. Instead, it constitutes an independent and substantive jurisdiction,
enabling courts to modify, cancel, or alter orders as necessary for the
proper disposal of property.
14.
Similarly, in Ahmad Bakhsh v. The State and another
(PLD 1966 Lahore 918), it was held that the proceeding under section 520
Cr.P.C. is not an appeal – or like an appeal. It is a proceeding of a unique
nature. No period of limitation is prescribed for applying under the said
provision. This view on limitation was reaffirmed in The State v. Darshan
Lal and another (PLD 1972 Kar 548) and Moulvi Sher Muhammad v.
The State (1992 MLD 307).
15.
Upon examination of the aforementioned legal provisions and
precedents, several vital legal principles emerge. Firstly, section 517
Cr.P.C. imposes a duty on the court to make an order regarding the
disposal of property under its custody, which continues until the property
is disposed of, either through destruction or transfer out of the court‟s
possession. While ideally, such orders should coincide with the judgment
Crl. Appeal No.460/2023
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of the case, they may be issued later if not contemporaneous with the
original ruling. Secondly, when a case with an order under section 517
Cr.P.C. is pending before a court of appeal or revision, that court can
annul, modify, or alter such an order under section 520 Cr.P.C. In instances
where no such pending case exists, section 520 Cr.P.C. permits
applications to the court where appeals or revisions typically lie from the
court issuing the initial order under section 517 Cr.P.C. Importantly, when
no appeal or revision has been filed, or if it was filed but has been disposed
of, the court mentioned in section 520 Cr.P.C. can still exercise powers
under that provision. Section 520 Cr.P.C. confers unique jurisdiction upon
designated courts, enabling them to pass necessary orders to dispose of
property.
16.
CNSA is a special law that aims to consolidate and amend
laws relating to narcotic drugs2
and psychotropic substances3. Its primary
objectives include controlling the production, processing, and trafficking of
such drugs and substances and regulating the treatment and rehabilitation
of narcotics addicts and related matters. Section 47 of the CNSA specifies
that, unless otherwise provided in the Act, the procedural provisions of the
Code of Criminal Procedure 1898, including those pertaining to the
confirmation of a death sentence, shall apply to trials and appeals before a
Special Court established under the CNSA. Section 48(1) dictates that
appeals against the orders of Special Courts presided over by Sessions
Judges or Additional Sessions Judges shall be lodged with the High Court
and heard by a Bench of at least two Judges of that Court. Section 48(2)
states that an appeal against the order of a Special Court headed by a
Judicial Magistrate shall lie to a Special Court comprising a Sessions Judge
or an Additional Sessions Judge. These provisions establish a
comprehensive legal framework for the adjudication and appellate review
of cases related to controlled narcotic substances, ensuring consistency and
fairness in legal proceedings under the CNSA.
17.
The Supreme Court of Pakistan analyzed the above provisions
of the CNSA in The State v. Fazeelat Bibi (PLD 2013 SC 361). It ruled
Crl. Appeal No.460/2023
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that section 47 incorporates the procedural framework of the Code of
Criminal Procedure into trials and appeals conducted under the Act without
importing specific remedies from the Code to the Act. The Supreme Court
underscored that the CNSA inherently provides its own set of remedies,
clarifying that the mere applicability of the Code‟s procedure does not ipso
facto extend the Code‟s remedies to the Act. It further stated:
“It ought to have been appreciated by the learned Division Bench of the
Lahore High Court, Lahore, that a remedy of an appeal, revision or
review is a creation of a statute and applicability of the procedure
prescribed in the Code of Criminal Procedure to proceedings under any
other special statute does not ipso facto make the remedies provided in
the Code of Criminal Procedure applicable to the other statute. The
Control of Narcotic Substances Act, 1997 is a special law containing all
the relevant remedies catering to different situations, and section 47 of
the said Act has only made the procedure contained in the Code of
Criminal Procedure applicable to the proceedings under the Act of 1997
... The right of appeal conferred by section 48(1) of the Control of
Narcotic Substances Act, 1997 is all pervasive catering to every kind of
appeal from every kind of order passed by such a Special Court …”
18.
In view of the above, sections 517 to 520 Cr.P.C. must be read
subject to sections 47 and 48 of the CNSA.
19.
Section 32(1) of the CNSA mandates that in cases where an
offence punishable under the Act is committed, any narcotic drug,
psychotropic substance, or controlled substance, along with related
materials, apparatus, and utensils used in or for the commission of the
offence, shall be liable to confiscation. Section 32(2) further specifies that
any lawfully imported, transported, manufactured, possessed, or sold
narcotic drug or substance, alongside any illicit substances, shall also be
liable to confiscation. Additionally, receptacles, packages, vehicles,
vessels, and other conveyances used in transporting these substances are
susceptible to confiscation if it is proved that the owner thereof had prior
knowledge of the offence. Act No. XX of 2022 has introduced an
amendment to section 32(1) of the CNSA through a proviso, which states
that if any currency, whether local or foreign, or any valuable item with
monetary value used in the commission of the offence under this Act is
seized, it shall be confiscated along with other articles.
20.
Moving on, section 33 of the CNSA details the procedure for
confiscation. Section 33(1) mandates that during the trial of offences under
this Act, regardless of the outcome (whether the accused is convicted or
acquitted), the Special Court shall determine whether any article frozen or
Crl. Appeal No.460/2023
- 10 -
seized in connection with such offence is liable to confiscation. Section
33(2) further states that if any seized article under the CNSA is deemed
liable to confiscation under section 32, but the individual responsible for
the offence related to it is unidentified or cannot be located, the Special
Court is authorized to investigate and determine such liability and issue
confiscation orders accordingly.
21.
Since sections 517 to 520 Cr.P.C. must be read subject to
sections 47 and 48 of the CNSA as discussed above, an order made under
section 33 of the CNSA can only be challenged under section 48. Should
such an order be part of the primary order under appeal, the appellate
court, irrespective of the powers granted by section 520 Cr.P.C., has the
authority to amend, alter, or nullify it and may also issue further orders
within its appellate jurisdiction. However, if the main case is not before the
appellate court, it still has jurisdiction under section 520 Cr.P.C. to issue
necessary orders.
22.
In the present case, the Additional Sessions Judge found the
Appellant and his co-accused guilty, sentenced them and ordered the
confiscation of Shehzore mini-truck No.LWC-8370 in favour of the State.
The Appellant and his co-accused separately appealed to this Court, and on
21.11.2012, their appeals were accepted through a common judgment,
resulting in their acquittal. However, the Division Bench did not issue any
directive regarding the truck. Given the above-mentioned law, the
Appellant‟s application before the Additional Sessions Judge was not
maintainable.
23.
The facts of the present case are strikingly similar to those of
Ghulam Akbar, supra. In Ghulam Akbar, the Magistrate convicted the
applicant under section 411 PPC. The Sessions Judge dismissed the appeal
against the conviction and sentence. The High Court acquitted the
applicant in revision, holding that the prosecution case was doubtful and
that the currency notes of Rs.1,840/- and a pair of gold earrings which
were recovered from the applicant belonged to him. However, it did not
pass any definite order regarding the disposal of the property. The
applicant filed an application under section 520 Cr.P.C. before the High
Court for its restoration, which was accepted. Changez J. held:
Crl. Appeal No.460/2023
- 11 -
“Unfortunately, the matter was not brought to my notice at the time
when I acquitted the petitioner; otherwise, I would have incorporated the
necessary order in that judgment. However, this does not make any
difference. I accordingly hold that in the exceptional circumstances of
this case, a petition under section 520 Criminal P. C. lay directly to this
Court without invoking the revisional jurisdiction of this Court under
section 439 Criminal P. C. This petition is, therefore, not barred under
section 439(5) Criminal P. C.”
24.
Confronted with the above situation, Mr. Bhatti requested that
this appeal be treated as an application under section 520 Cr.P.C. and
adjudicated accordingly. We have agreed to this request and instructed the
office to re-number this case appropriately.
25.
The expressions “as it thinks fit” in section 517(1)4
and
“orders that may be just” in section 520 Cr.P.C. signify that the court‟s
power to dispose of property under these provisions is discretionary.
Nonetheless, this discretion must be exercised in accordance with sound
judicial principles. Generally, when no offence has been proved or appears
to have been committed with regard to the property in question, or if the
property has not been used in any criminal activity, it should be restored to
its rightful owner. Nevertheless, specific circumstances may necessitate a
different course of action. For example, in Central Cooperative Bank Ltd.,
Sargodha v. Ahmad Bakhsh (PLD 1970 SC 343), upon considering the
material available on record, the Supreme Court noted that a question of
title to the money was involved in the case. The bank had a rival claim, and
the circumstances indicated a reasonable doubt as to whether Ahmad
Bakhsh was entitled to the return of the money. The Supreme Court held
that it was not desirable to decide the issue of title in a proceeding under
section 517(1) Cr.P.C. Instead, the matter should be determined by the
civil court of competent jurisdiction. Therefore, the Supreme Court
directed that Rs.16,000/- already given to the bank under the trial court‟s
orders shall continue to be held by the bank till the civil court resolved the
ownership dispute.5
26.
In Manzoor Hussain Jatoi v. The State (1997 P.Cr.LJ 500), a
case under Articles 3 & 4 of the Prohibition (Enforcement of Hadd) Order,
1979, in the operative part of its judgment, the Supreme Court stated:
“For the foregoing reasons, we allow this appeal, set aside the conviction
4
See paragraph 9 of this judgment.
5 Also see: Ghulam Jilani v. Muhammad Yousuf and another (1972 SCMR 159).
Crl. Appeal No.460/2023
- 12 -
and sentence of the appellant and acquit him of the charge.” The Federal
Shariat Court ruled that these words unmistakably indicate the applicant‟s
acquittal of the charge in the aforementioned case. Although the Supreme
Court had not issued any specific order regarding the seized property,
while allowing the applicant‟s appeal, it had set aside his conviction and
sentence and acquitted him unconditionally. Therefore, there was no
reason to deprive him of the logical consequence of his acquittal. The
Federal Shariat Court further stated:
“The order of the Honourable Supreme Court that they „acquit him of the
charge‟ logically implies that he is entitled to all the reliefs consequent to
his acquittal, including the release of his property seized under that
charge. Unless the Appellate Court exempts a particular relief in express
terms, the order of acquittal should entail all the consequential effects
thereof. A separate order for each and every consequence of the acquittal
is not necessary. Therefore, the trial court, acting on the basis of the
order of acquittal recorded by the Honourable Supreme Court could have
released the property.”
27.
The CNSA is lex specialis. Therefore, in cases thereunder, the
articles connected with narcotics must be dealt with in accordance with
sections 32 and 33 and the proviso to section 74 of the CNSA.6 A vehicle
seized under the CNSA is not liable to be confiscated, and an individual
can seek its release if he can establish that he is its lawful owner, that he is
neither the accused nor an associate or a relative of the accused or an
individual having any nexus with the accused. Conversely, the prosecution
must demonstrate that the applicant knew the offence was being or was to
be committed. Hence, it cannot be laid down as an absolute rule that a
vehicle should always be released to its owner following an acquittal.
Instead, each case should be decided on the basis of its peculiar facts and
circumstances.
28.
In the present case, according to the prosecution, on
30.08.2007, the police seized Shehzore mini-truck No. LWC-8370
transporting ground poast concealed under Khiskhas bags and apprehended
Crl. Appeal No.460/2023
- 13 -
Shakeel Ahmad. His accomplices, Mohammad Akram and two others,
managed to flee. During the trial, in his statement under section 342
Cr.P.C., Akram denied any association with Shakeel Ahmad. He asserted
his innocence, claiming false implication in the case. He highlighted being
cleared of any involvement during the investigation by the SDPO Hasilpur
on 04.01.2008 and by the S.P. (Investigation) on 09.01.2008.
Subsequently, this Court acquitted all three accused persons due to various
inconsistencies and weaknesses in the prosecution‟s evidence. Paragraph
13 of this Court‟s judgment dated 21.11.2012 is relevant to the issue at
hand, which is reproduced below:
“13. The place of recovery is also different, as spoken by
PW-2, PW-3, PW-4 and PW-6. Riaz Hussain, retired Inspector, on the
transfer of investigation under orders of Additional Inspector General of
Police, Lahore, was entrusted the investigation by the SSP, RIB, deposed
in his cross-examination that it is correct that the recovery was effected
from a truck at Khaji-wala near Khairpur instead of ADA Jhok Lal. He
further admitted that the name of accused Shakeel was placed in Column
No.2 of the report under section 173 Cr.P.C. Meaning thereby, the only
accused, who was apprehended at the spot, was declared innocent by the
police during the course of investigation. Perusal of record reveals that
all three accused were declared innocent during investigation. Even
otherwise, no source whatsoever has been disclosed by anyone, which,
for all purposes, suggests that the runaway two accused were
Mohammad Akram and Mohammad Jaffar.”
29.
There is no material on the record indicating Muhammad
Akram‟s direct or indirect involvement in the offence. Documents reflect
that he purchased Shehzore mini-truck No.LWC-8370 on 31.07.2006 from
Sheraz Khan son of Muhammad Aidal Khan. There is no other claimant of
the vehicle. Therefore, we grant his request for its release and restoration to
him.
30.
Disposed of.
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