2020 PLP 68 (MLD)

ABDUL HAMEED BALOCH, J.

This Criminal Appeal is directed against the order dated 26.06:2019 ("impugned order") passed by the Special Judge Control of Narcotic Substances, Lasbela at Hub ("trial court") whereby the application filed by the appellant under Section 516-A of the Code of Criminal Procedure, 1898 ("Cr.P.C.") for Superdari of vehicle bearing Registration No. LES-640 was dismissed.

2. The necessary facts for disposal of the instant appeal are that FIR No.83/2019 was lodged by the complainant Mushtaq Ahmed, Sobedar Pakistan Coast Guards with Police Station Pakistan Coast Guards Uthal on 16.5 2019, under section 9(c) of the Control of Narcotic Substances Act, 1997 (CNS Act, 1997), alleging therein that on the same date at about 20:00 hours at Naka Khadari Check Post of Pakistan Coast Guards Uthal, a Coach bearing registration No.LES-640 was intercepted and search of the same was conducted, resultantly, 3.9 Kg Charas and 10 Kg Opium from the tool-box of the vehicle were recovered, which were taken into possession and vehicle was seized as case property.

3. The appellant on the strength of registration documents claimed ownership of the vehicle and filed an application under Section 516-A, Cr.P.C. before the trial court for release of the same, but the application so filed was rejected through the impugned order. Hence this appeal.

4. Learned counsel for the appellant contended that the appellant is undisputed owner of the vehicle. There is nothing on record that the appellant either involved in drug trafficking or was aware about the vehicle being used for such purpose; that the vehicle in question is lying in the police station in the open air and its utility is deteriorating day by day and if not released will seriously damage; that the vehicle is the only source of income of the appellant and because of taking into possession the vehicle in question the appellant's family is suffering from starvation. He finally urged that the impugned order passed by the learned trial court is not sustainable and prayed for the release of the vehicle in question on Superdari subject to furnishing solvent surety.

5. Learned Assistant Attorney General VI, strongly opposed the contention and contended that the vehicle was being used for transportation of narcotics and this tendency of transportation of narcotics be discouraged. He while supporting the impugned order, urged for dismissal of the appeal.

6. Heard. The record perused. It is the prosecution case that narcotics were recovered from the toll box of the vehicle in question which was driven by the accused Muhammad Usman. It is an admitted fact that the appellant is not accused in the present case nor the prosecution has brought on record any incriminating material to show the knowledge of the appellant in respect of the allegedly recovered narcotics. Record further reveals that there were no secret cavities in the vehicle rather the narcotics have allegedly been recovered from the tool-box of the vehicle. Thus, it is by now well settled law that a vehicle shall not be confiscated unless it is proved that the owner was aware that his vehicle is being used in the crime. In this regard reliance is placed on the case of Allah Ditta v. State 2010 SCMR 1181, whereby the Hon'ble apex Court held as under: "We thus, conclude that the proviso of section 74 does not prohibit the release of the vehicle involved in the trafficking of narcotics to its owner, who is not connected in any way with the commission of the crime or the accused and was unaware that his vehicle was being used for the crime."

7. In absence of any divergent evidence contrary to the appellant's stance, the assertion made by him is more plausible that he cannot be penalized merely on the ground that the said vehicle has been taken into possession as case property. Keeping in view the principles of law of Superdari, when no other claimant has come forward to claim ownership of the same, and the appellant being in possession of valid documents, showing his undisputed ownership is entitled for custody of the vehicle in question. For the above reasons the impugned order dated order 26th June, 2019 passed by the Special Judge Control of Narcotic Substances, Lasbela at Hub in case FIR No. 83 of 2019, registered with PS Pakistan Coast Guards Uthal under Section 9(c) of the CNS Act, 1997 is hereby set aside. The appeal is allowed and the Coach bearing Registration No.LES-640 is directed to be released on Superdari to the appellant subject to furnishing surety/superdaginama in sum of Rs.5,00,000/-(five lacs only) to the Additional Registrar of this court or trial court. SA/76/Bal. Appeal allowed.