2011 MLD 679 (PLP)

MIAN FASIH-UL-MULK, J.

This is an application under section 561-A, Cr.P.C. for quashment of judgment and order dated 16-9-2010 passed by Judge Special Court (CNS) Peshawar, whereby he rejected the application of petitioner for grant of Suzuki Pick-up on superdari to the petitioner.

2. The ANF raiding party intercepted Suzuki Pick-up Model 2010 bearing Engine No.PKT-190327, Chassis No.SR-308 PK 294989 on the basis of spy information near Ayub Bridge Havelian Abbottabad and its search led to the recovery of 15 canes of acetic anhydride i.e. chemical which is used in preparation of Heroin powder. The vehicle was seized by the ANF staff and case under section 9-C C.N.S.A. 1997 registered vide F.I.R. No.1 dated 18-8-2010 at Police Station ANF Haripur. At the relevant time the vehicle was being driven by Saqib Khan while two other persons namely Siraj Khan and Tahir Akram were also sitting, in the vehicle.

3. Learned counsel for petitioner contended that petitioner is a bona fide purchaser of vehicle which was purchased from Pak Kashmir Motors and Property Dealers Havelian Road, Abbottabad for a consideration of Rs.6,65,000 and was handed over to driver for earning livelihood which was hired by the accused persons. It was further contended that petitioner being owner had no knowledge of narcotics having been transported in it. Petitioner had neither any concern with the material so recovered nor was charged for the same.

4. On the other hand, learned State Counsel opposed the contentions of petitioner and contended that ANF staff having found trafficking the prohibited contraband rightly seized the vehicle and thus petitioner is not entitled to `superdari' of vehicle in question in view of section 74 of Control of Narcotic Substances Act, 1997.

5. I have heard learned counsel for parties and gone through the record.

6. Allegedly, petitioner is a bona fide purchaser of vehicle which was purchased by him from Pak Kashmir Motors and Property Dealers Havelian Road, Abbottabad for a consideration of Rs.6,65,

000. The vehicle was handed over to driver for earning livelihood and was hired by the accused. Documents annexed with the petition prima-facie support the contention of petitioner. It is well-settled law that section 74 of the Act deals with regard to release of vehicle temporarily on "superdari" during pendency of trial. Vehicle involved' in the transportation of narcotics would not be released during trial, however, absolute bar cannot be created for release of vehicle, if as per section 32 of the Act, 1997 it is prima facie established that owner had no knowledge that narcotics have been transported in his vehicle. Judicial discretion can also be exercised for release of vehicle on "superdari" in view of well settled principle that if a court can grant final relief, it also possesses inherent jurisdiction to grant temporary relief, pending proceedings before it subject to prima facie fulfilling the conditions by the petitioner under the law for getting relief finally from the court. A tentative assessment of record would show that petitioner is prima facie a genuine owner of vehicle and if it is handed over to him on superdari, than keeping it in seizure condition for indefinite period waiting conclusion of trial, against furnishing of heavy surety bonds but subject to production of original documents of ownership, the same would be in the interest of justice.

7. Consequently, I allow this petition and direct the ANF Staff to hand over the vehicle in question to petitioner on superdari till decision of case subject to production of documents of his title before Investigation Officer, who shall verify the ownership and submit his report to the trial Court. Petitioner shall also submit bail bonds in the sum of Rs.10,00,000 with two sureties each in the like amount to the satisfaction of learned trial Court with an undertaking that the vehicle shall be produced as and when required by the trial Court. H.B.T./35/P???????????????????????????????????????????????????????????????????????????????????????? Petition allowed.