2006 PLP 1529 (MLD)

AMIR HANI MUSLIM, J.

Through this Criminal Revision Application the State has impugned the order o1 the trial Court passed on an application under section 516-A, Cr.P.C. made by the Respondent by which order the car, which is the subject-matter of the case, was restored possession to the Respondent.

2. The facts as they reveal from the record are that the Respondent purchased car bearing Registration No. AGX-042, Honda VTI Oriel on instalments from United Bank Limited and had rented it out to an absconding accused Rehan Ameen. It appears that on 26-5-2005 the Anti-Narcotics Force intercepted the said car and 150 Kgs Charas was recovered from it. At the time of interception, accused Jehan Zeb along with Imran Ameen was driving the car. During search of the car photocopy of rent agreement entered into between the Respondent and Rehan Ameen was also recovered. After the completion of investigation the challan was submitted by the police in which the Respondent was not made accused.

3. It has been urged by the learned Standing Counsel that the car in question was purchased in the name of Respondent, who is not the real owner and in fact Rehan Ameen, the absconding accused, was the actual owner and from his money the said car was purchased. He further submits that the instalments were also being paid to the bank by the absconding accused through the Respondent. He submitted that in view of the bar contained under section 32 of the Control of Narcotic Substances Act, 1997, the car in question should not have been restored possession to the Respondent. He in support of his arguments has relied upon the case of Abdul Salam v. State reported in 2003 SCMR 246 and further submitted that the case of Shareef Khan v. State reported in 2004 PCr.LJ 2060, relied upon by the trial Court, was inapplicable.

4. As against this, the learned counsel for the Respondent submits that the order impugned is lawful. He submitted that the Respondent is the registered owner and is doing the business of rent a car. He has placed before us the different delivery orders of the cars to establish that he is doing the business of rent a car. The learned Standing Counsel has not disputed the factual that the Respondent is in the business of rent a car. He submitted that the car was purchased by the Respondent on instalments from United Bank Limited and rented it out to Rehan Ameen, the absconding accused, under a rent .agreement, copy of which was recovered when the car was intercepted by the Anti-Narcotic Force, which fact is also incorporated in F.I.R. His further submission was that the Respondent was not in knowledge of any criminal activity of the accused persons and in fact in the Rent Agreement there was a clause which provided that if the party in possession of the car was found in any illegal or criminal activity the Respondent shall not be responsible. Even the contents of this agreement have not disputed by the learned Standing Counsel but his only argument is that out of drug money the car was purchased and the Respondent is not the real owner and the nature of transaction was Benami.

5. We have heard the learned counsel and have perused the record. Admittedly, the Respondent is doing the business of rent a car. The Respondent is not made accused in the criminal case. The Rent Agreement between the absconding accused and the Respondent is not disputed. The case of Abdul Salam supra referred to by the learned Standing Counsel is inapplicable to facts of the present case inasmuch as in the said case the owner had applied for restoration of the possession of the car whereas the accused was his driver. In the present case, the . transaction is between two independent persons, which is based on the rental agreement contents of which agreement are not in dispute. Additionally, the argument of the learned Standing Counsel that the Respondent is not the owner is a matter, which could only be determined after the evidence is recorded. The provisions of section 32 of the Control of Narcotic Substances Act, 1997, do not create absolute bar for release of a vehicle, if, prima facie, it is established that the owner had no knowledge of the narcotic having been transported through it.

6. The judgment of the Honourable Supreme Court in the case of Abdul Salam supra is of no help to the learned Standing Counsel inas?much as if the trial Court after taking into consideration the facts of the case comes to the conclusion that a real owner, who is not an accused is not in knowledge of the transportation of the narcotic in his vehicle, a trial Court may in exercise of its judicial discretion order release of the vehicle on superdari. We are further fortified by the judgment of this Court in the case of Shareef Khan v. State reported in 2004 PCr.LJ 2060, which fully supports the case of the Respondent. In the present case, the charge has already been framed and there is sufficient material which prima facie establishes that the vehicle in question is owned by the Respondent who was not in knowledge of the fact that narcotic was being transported in it and the vehicle was rented out to the absconding accused.

7. Under these circumstances we do not find any legal infirmity in the impugned order, which warrants interference by us. Accordingly, this Criminal Revision? Application is dismissed. It will however be open to the State to urge the points raised before us at the time of final arguments after evidence is recorded by the trial Court. H.B.T.IS-54/K???????????????????????????????????????????????????????????????????????????????????? Revision dismissed.