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2007 Y L R 1908

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

BANARAS KHAN---Petitioner

Versus

THE STATE and 2 others---Respondents

Criminal Miscellaneous Petition No.188 of 2006, decided on 16th February, 2007.

Criminal Procedure Code (V of 1898)---

----Ss. 516-A & 561-A---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 32, 33(4) & 74---
Superdari of vehicle, petition for---Nothing was on record to show that vehicle in question had been
used in the commission of crime with the knowledge of petitioner---Section 74 of Control of Narcotic
Substances Act, 1997, no doubt, prohibited the grant of custody of a vehicle used in the import,
export or transportation of narcotic substance to accused or any of his associates or relatives or any
private individual till the conclusion of the case, but application of said provision by no
canon of interpretation could be extended to cover an owner who had no hand or involvement in
the crime, as it could not be construed independently of the provisions contained in S.32 of said Act;
which protected the right of the owner, who had no conscious hand in the commission of crime---
Petitioner claimed to be the owner of seized vehicle and his claim was based upon a registration
book and a transfer letter---Petitioner was not accused person in the relevant criminal case and
nothing had been recovered from his possession in the said case---Nothing was available on the
record of investigation of the case showing that petitioner had any knowledge that accused would
use his car for committing any offence relating to narcotics and law did not allow putting onus on
petitioner to prove his lack of knowledge in that regard---Rights of the owners who had no
knowledge of commission of offence or had no conscious hand in the crime, were fully protected---
Vehicle in question was parked in open space exposed to the vagaries of whether; its retention in
police custody for an indefinite period would achieve no useful purpose---Local police was directed
to hand over custody of vehicle to petitioner, accordingly---Present order, however, would not
prejudice the right of a rival claimant, if any, with a better title.

Javed Hayat and another v. The State PLD 2006 Lah. 167; The State v. Rashid PLD 2003 Pesh. 87 and
Aamir Khalil v. Government of Pakistan through Director General, ANF Rawalpindi and 5 others PLD
2004 Pesh. 251 rel.
Nek Nawaz Khan Awan for Petitioner.

Salahuddin Khan, D.A.-G. for the State.

Respondent No.3 in person.

Date of hearing: 9th February, 2007.

JUDGMENT

IJAZ-UL-HASSAN KHAN, J.---Banaras Khan, petitioner, claiming ownership of Motor Car, bearing
Registration No.LXB-4817, has filed instant petition under sections 561-A/516-A, Cr.P.C. read with
section 33(4) Control of Narcotic Substances Act, 1997, for release of the Motor Car in question on
'superdari' along with documents, on refusal of the same by order dated 13-9-2006, passed by
learned Judge, Special Court (CNS), Peshawar camp Kohat.

On 23-11-2005, the ANF officials seized the vehicle in question from the driver Rashid Khan,
respondent No.3 herein and registered a case vide F.I.R. No.26 dated 23-11-2005, under section 9(c)
of Control of Narcotic Substances Act, 1997.

Appearing on behalf of the petitioner, Mr. Nek Nawaz Khan Awan, Advocate contended with force
that order of learned trial Judge is not in consonance with the provisions of section 32 of the
Control of Narcotic Substances Act, 1997; that car in question was purchased by the petitioner from
Haji Kamil Ghulam, father of Muhammad Mahroon Khan, respondent No.2; that there is nothing on
the-record to show that the car has been used in the commission of the crime with the knowledge
of the petitioner and the documents placed on the file would prima facie show the petitioner
to be owner of the vehicle in question at lease in the absence of any rival claimant. To substantiate
the contentions, reliance has been placed on Javed Hayat and another v. The State (PLD 2006
Lahore 167), The State v. Rashid (PLD 2003 Peshawar 87), and Aamir Khalil v. Government of
Pakistan through Director General, ANF Rawalpindi and 5 others (PLD 2004 Peshawar 251).

On the contrary, Mr. Salahuddin, learned D.A.-G. refuted the arguments of learned counsel for the
petitioner and supported the impugned order, maintaining that entries in the registration book, run
counter to the claim of the petitioner; that petitioner had a hand in the affair and that 'superdari' of
the vehicle has been declined to the petitioner for cogent reason, which are open to legitimate
exception.

Having considered the matter from all angles, I find that there is nothing on the record to show that
the vehicle in question has been used in the commission of the crime with the knowledge of the
petitioner. No doubt, section 74 of the Control of Narcotic Substances Act, 1997, prohibits the grant
of custody of a vehicle used in the import export or transportation of narcotic substance to the
accused or any of his associates or relatives or any private individual till the conclusion of the case,
but the application of this provision by no canon of interpretation can be extended to cover an
owner who has no hand or involvement in the crime, as it cannot be construed independently of the
provisions contained in section 32 of the Act, which protects the rights of the owner, who has no
conscious hand in the commission of the crime. **The petitioner claims to be the owner of the
seized Motor Car and his claim is based upon a registration book and a transfer letter. Admittedly,
the petitioner is not accused person in the relevant criminal case and nothing has been recovered
from his possession in the said case. As observed earlier, there is nothing available on the record of
investigation of this case so far showing that the petitioner had any knowledge that the accused
persons would use his car for committing any offence relating to narcotics and the law does not
allow putting the onus on the petitioner to prove his lack of knowledge in that regard. The rights of
the owners who had no knowledge of the commission of offence or had no conscious hand in the
crime, were fully protected. The Courts have come to the rescue of the owners when their vehicles were
used without their knowledge for the commission of offence.

The car in question is parked in. open space exposed to the vagaries of weather. Its retention in police
custody for an indefinite period would also achieve no A useful purpose.

In view of above, I accept the petition and direct the local police to hand over custody of the vehicle to
the petitioner on furnishing bail bonds in the sum of Rs.5,00,000 with two sureties each in the like
amount to the satisfaction of the learned Special Court who is to ensure that the sureties are local and
men of means.

However, this order will not prejudice the right of a rival claimant, if any, with a better title.

H.B.T./95/P Petition allowed.