2009 P Cr (PLP)

ALI SAIN DINO METLO, J.

Heard Messrs I.A. Hashmi, Advocate for the applicant and S. Ashfaq Hussain Rizvi, Special Prosecutor, A.N.F.

2. Applicant Imtiaz Jawed, facing charge of transporting 85 kilograms of heroin in a car, after his release on bail on medical grounds, seeks custody of his car used in the transportation of the heroin and defreezing of his bank account freezed under section 37 of the Control of Narcotic Substances Act, 1997.

3. According to the prosecution, on 16-1-2007, at about 1900 hours, a team of Anti-Narcotic Force apprehended the applicant at Kharkar Chowrangi, Clifton, Karachi and secured 85 kilograms of heroin from his car, which he was himself driving.

4. He seeks custody of the car and defreezing of his bank account mainly on the ground that he cannot be deprived of his property even temporarily.

5. The trial Court refused to give him the car and also refused to defreeze his bank account pending decision of the case for the reason that there were reasonable grounds to believe that he was involved in drug trafficking.

6. Article 24 of our Constitution provides that no person shall be deprived of his property, save in accordance with law. Section 32 of the Control of Narcotic Substances Act, 1997, provides that a vehicle used in carrying a narcotic drug shall be liable to confiscation, except where its owner did not know that the offence was being or was to be committed. And sections 21 and 22 (ibid) authorize seizure of such vehicle. The proviso to section 74 (ibid) provides that notwithstanding anything contained in section 523 or any other provision of the Code of Criminal Procedure, 1898, a vehicle used in transportation of a narcotic 'drug "shall not be given to the accused or any of his associates or relatives or any private individual till the conclusion of the case".

7. There is no force in the contention of the learned counsel for the applicant that the prosecution story is false and the heroin has been planted upon the applicant. This defence of the applicant, in support of which there is no material on record, cannot be accepted at this stage. Presently, the material, which is available on record, overwhelmingly shows applicant's involvement in the commission of the offence. He is shown to have been caught red handed while transporting the huge quantity of heroin in his car. In such circumstances, it cannot be said that he had no knowledge about the car being used in the transportation of heroin.

8. Moreover, in the proviso to section 74 (ibid) it has been clearly mentioned that notwithstanding anything contained in section 523 or any other provision of the Code of Criminal Procedure, 1898, any conveyance used in transport of a narcotic drug shall not be given to the accused or any other person till the conclusion of the case.

9. The precedents of the cases of Mst. Shaheen Begum v. S.H.O. (ACLC) and others reported in 2005 MLD 176 (Karachi), Muhammad Akmal Shah v. D.S.P. and others reported in 2004 PCr.LJ 1 (Lahore), Mahboob Khan v. The State reported in 2003 YLR 791 and Abdul Salam v. The State reported in 2003 SCMR 246, cited by the learned counsel for the applicant are of no help to the applicant. In the first three cases, the vehicles were not used in the commission of any crime. There was simply dispute about their ownership between private parties. In the last case, which pertains to the use of vehicle in the transport of Charas, the Supreme Court refused to give the vehicle to its owner, who claimed custody on the ground that he had no knowledge about its illicit use by the driver, observing that there was no material available on record to show that he had no knowledge.

10. As regards applicant's bank account, section 19 (ibid) provides that "where the Special Court finds a person guilty of an offence punishable under this Act and is sentenced to imprisonment for a term exceeding three years, the Court shall also order that his assets derivable from trafficking in narcotic substances shall stand forfeited to the Federal Government, unless it is satisfied, for which the burden of proof shall rest on the accused that they or any part thereof, have not been so acquired", And section 37 (ibid) provides that "where Special Court trying an offence punishable under this Act is satisfied that there appear reasonable grounds for believing that the accused has committed such an offence, it may order the freezing of the assets of the accused, his relatives and associates.

11. Besides the Special Court, the section enjoins the Director-General and the officers authorized under section 21 (ibid) to trace, identify and freeze assets of an accused during the investigation or trial for the purpose of forfeiture by the Special Court. However, the Special Court may confirm, rescind or vary such freezing. The Special Court, like all other Courts, is required to exercise the discretion judiciously. As is clear from the provision itself, the paramount consideration for the purpose of confirming or rescinding the freezing of the assets will be existence or otherwise of reasonable grounds for believing the accused guilty of the offence. As mentioned above, in the present case, there are overwhelming grounds to believe the applicant guilty of the offence.

12. There is also no force in the argument of the learned counsel for the applicant that the trial Court while refusing to defreeze the applicant's bank account has given observations which virtually amount to its confiscation. As a matter of fact the trial Court, while highlighting the consequences of drug trafficking and its bad effects on the society, has clearly said that the applicant's request would be considered at the time of final judgment.

13. In view of the above legal position and the facts and circumstances of the case, the orders of the trial Court refusing to give custody of the vehicle to the applicant and refusing to defreeze his bank account, pending trial, being unexceptionable, do not call for any interference and, therefore, the revisions, being meritless, are dismissed along with the listed applications. N.H.Q./I-22/K Petition dismissed.