2024 PLP 1070 (MLD)

Shakil Ahmad, J.

This is an appeal that has been filed by Commissionerate of Afghan Refugees (Ministry of Saffron) through its Transport Officer (appellant herein) under section 48(1) of the Control of Narcotic Substances Act, 1997 ("CNSA, 1997") to impugn order dated 09.05.2023 passed by learned Additional Sessions Judge/Judge Special Court CNSA, Faisalabad, whereby an application moved by appellant for Superdari of Car Toyota Yaris white colour bearing Registration No.GAA-250 Model 2022 Engine No.2A50401, Chasis No.NSP 150R7031764 (hereinafter referred to as "vehicle in question') was dismissed.

2. Heard learned counsel for the parties. Record perused.

3. Section 32 of the CNSA, 1997 mandates that the receptacles or packages and the vehicles, vessels and other conveyances used in carrying narcotic drugs and substances should be liable to confiscation. Undeniably, narcotics were not recovered from the secret cavity of the vehicle in question which was being driven by Syed Asif Shah rather the same was found lying in the trunk of the car and said accused himself handed over the same to the complainant/inspector. Admittedly, the vehicle in question is owned by the appellant/Commissionerate of Afghan Refugees. The Supreme Court of Pakistan in the case of Allah Ditta v. The State (2010 SCMR 1181) held that if the owner of the vehicle is not accused of the case and has no knowledge that his vehicle would be used for trafficking the narcotics, the provisions of Section 74 of CNSA, 1997, shall not create any bar for giving the vehicle to him on temporary custody. Reliance can also be placed on case Amjad Ali Khan v. The State and others (PLD 2020 SC 299) wherein the Supreme Court of Pakistan has held as under:- "

11. Joint reading of Ss. 32 and 74 of CNSA show that an applicant can seek release of a vehicle on superdari, which has been seized under CNSA and is a case property in a criminal case; if the applicant can show that he is the lawful owner of the vehicle; that he is neither the accused nor an associate or a relative of the accused or an individual having any nexus with the accused. While the prosecution has to show that the applicant knew that the offence was being or was to be committed. Under S.33 if the vehicle is finally held not liable to confiscation it can be released to its owner. As a corollary, where the court can pass a final order, it can also pass an interim order. Therefore, a vehicle can also be released as an interim measure or temporarily on superdari under CNSA after the court is prime facie satisfied regarding the ownership of the applicant and the absence of the association of the owner with the accused and the commission of the offence. The applicant while asserting his ownership of the vehicle must specify in his application for superdari how he was deprived of the vehicle, how and when he found out that his vehicle was missing, and the legal proceedings initiated by him thereafter, if any. This becomes important in the light of S.109 of MVO which attracts criminal liability if one drives a vehicle without the consent of the owner. On the other hand, in order to oppose the release of vehicle on superdari, the prosecution has to prima facie show from the record that the owner knew that the offence was being or was to be, committed. It is underlined that it is during the trial that the prosecution has to prove that the owner knew that the offence was being or was to be, committed." Keeping in view the principles of law of Superdari (temporary custody), being in possession of valid documents showing its undisputed ownership, appellant is entitled to the custody of vehicle in question.

4. The upshot of the above discussion is that the impugned order is not sustainable, which is hereby set aside by allowing this appeal. The vehicle in question is ordered to be given to the appellant on superdari subject to furnishing of surety bonds in the sum of Rs.2,00,000/- with one surety in the like amount to the satisfaction of the learned trial court. It is made clear that appellant shall be bound to produce the vehicle in question before the learned trial court as and when so required during trial. Appellant shall also furnish affidavit to the effect that he will not dispose of the vehicle till the final decision of the case. MWA/C-15/L Appeal allowed.