2013 PLP 425 (MLD)

Through this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, the petitioner seeks a direction in terms that respondents Nos.1 to 3 should deliver the vehicle in question on superdari to the counsel of the petitioner and for this purpose, the learned trial court may summon the petitioner from Central Jail Rawalpindi, to record his statement.

2. Precisely, the prosecution case as stated by Muhammad Zubair S.-I., Anti-Narcotics Force, in F.I.R. No.23 dated 14-3-2010 under section 9 C, CNSA, 1997, Police Station ANF, Rawalpindi is that he along with other co-officials was present at the departure lounge of Benazir Bhatto International Airport, Islamabad at 8 a.m. on 14-10-2010 for checking the outgoing passengers; one Abdul Rasheed, leaving for a foreign country from Islamabad, through flight No.PK785 was checked and during the search of his bag 1800 grams heroin was recovered; he was interrogated and he disclosed that the heroin recovered from him belonged to one Mazhar Hussain; after fulfilment of necessary legal formalities, a strong contingent of the Anti-Narcotics Force raided the house of Mazhar Hussain (petitioner) at 1-00 p.m. he was overpowered and taken into custody when he was approaching the main gate of his house; on search, 2 kilograms heroin was recovered from a bag, carried by him, the ANF officials also took into possession the vehicle MZ-692 XLI Model 2008 of Mazhar Hussain accused (petitioner). The I.O, on conclusion of investigation, submitted report under section 173 Cr.P.C. before the learned trial court but did not mention even a single word about the factum of having taken into custody the above said car of the petitioner.

3. Ameer Afzal, the father of the petitioner approached the police station concerned for fetching the vehicle in question on behalf of his son but it was not handed over to him. He was constrained to move an application before the learned trial court for seeking custody of the aforementioned vehicle on superdari on behalf of the petitioner, which was allowed on 11-6-2010, after the petitioner consented to its acceptance. In line with he order of the learned trial court, the father of the petitioner submitted surety of Rs.1000000 with one surety well in time but the ANF officials refused to deliver him the car and instead filed a case for confiscation of the assets of the petitioner, which was dismissed on 14-4-2010 by the learned trial court. Sometimes thereafter, the father of the petitioner being a Britisher left for UK so, the petitioner executed a power of attorney/authority-letter in favour of his counsel Raja Ghaneem Aabir Khan, advocate so that he could receive the above said vehicle from the ANF but it did not work as they flatly refused to handover the vehicle to the counsel of the petitioner. Hence, the instant petition.

4. Learned counsel for the petitioner submits that the petitioner has fulfilled all the legal requirements to receive back his car in line with the order of the learned trial court but the stubbornness on the part of the ANF/I.O. is un-understandable; the above said automobile is not the case property nor shown as such in the record of the mentioned case still the ANF were bent upon in causing defiance of the order of the learned trial court; Articles 23 and 24 of the Constitution of Islamic Republic of Pakistan provide protection of property to every citizen and the act of the ANF officials is contrary to law of the land; the respondents were using the petitioner's car for their private and personal use and damaging the same through their reckless and rough handling which has badly depreciated its value; lastly submits that the instant petition may be allowed and the above said vehicle be delivered to the counsel of the petitioner.

5. On the other hand learned Special Prosecutor ANF submits that a revision petition has been filed by the ANF for enhancement of sentence of the petitioner; the order dated 14-4-2010 passed by the learned trial court whereby an application moved by ANF for freezing the assets of the petitioner was dismissed, has also been challenged, before this court; the vehicle in question was ordered by the learned trial court to be delivered to the petitioner or his father and that it could not be handed down to the counsel for the petitioner; lastly submits that the ANF department however, would have no objection about the deliverance of the vehicle to the agent of the petitioner if it was so allowed by the court.

6. We have heard learned counsel for the parties and perused the record.

7. The vehicle Toyota Corolla bearing Registration No.MZ 692, Model No.2008 Engine No. X744399-5, chassis No.6089966 belonging to the petitioner, had been taken into custody by Muhammad Zubair S.-I. Police Station ANF, Rawalpindi, respondent No.3 under the directions of respondents Nos.1 and 2 which was not rendered into the case property of case F.I.R. No.24 of 2010 supra mainly for the reason that it prima facie had no nexus with the accusations contained in the above said F.I.R. The petitioner however, after having been arrested in the said case was dispatched to judicial lockup on the charge of recovery of 2 kilograms heroin from his possession, on 14-3-2010. As the petitioner stood incarcerated so his father approached the respondents time and again for fetching the vehicle of his son but failed. He was constrained to file an application before the learned trial Court which was accepted on 11-6-2010 with the condition that the applicant should furnish surety bond in the sum of Rs. 1,000,000 with one surety in the like amount to the satisfaction of the learned trial court. He complied with the mentioned condition but could not receive the said car from the respondents. In the meanwhile, respondent No.2 moved the learned trial court under section 37(2) of CNSA, 1997 for freezing/confiscation/forfeiture of the property of the petitioner which was dismissed by the learned trial court on 14-10-2010, being destitute of merits. The petitioner, however, was convicted and sentenced to two years rigorous imprisonment with fine of Rs.500000 vide judgment dated 13-8-2010 passed by the learned Special Judge (CNS) District Courts Rawalpindi as he confessed guilt during the trial. Ameer Afzal father of the petitioner could not seek the custody of the car despite the consenting statement of his son, recorded by the learned trial court.

8. The above said vehicle exclusively belongs to the petitioner and there is no counter claimant. The application seeking custody of the car, as discussed earlier, had been allowed by the learned trial court on 11-6-2010. The father of the petitioner is no more in Pakistan as he being a British National flew back to UK. The prosecution could establish no nexus between the story of the F.I.R. (24/2010) and the aforesaid car nor they showed it as the case property during the course of investigation of above case. To leave this vehicle continuously with the respondents ANF officials may cause irreparable loss to the petitioner. All the legal formalities for release of the car to the petitioner stand completed and the Special Prosecutor ANF does not have any objection for deliverance of the vehicle to the agent of the petitioner if it was so permitted by the learned trial court.

9. Therefore, the instant petition is allowed in terms that the petitioner shall move an application before the learned trial court/Duty Judge, seeking compliance of the earlier order dated 11-6-2010 who shall summon the petitioner from the prison, record his statement and if he consents to the delivery of the above said car to his counsel it shall be ordered to be so delivered by the court concerned. NHQ/M-64/L Petition accepted.