2007 PLP 1908 (YLR)

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.