2011 P Cr. L J 423_ Peshawar High Court Allowed Superdari


2011 P Cr. L J 423

[Peshawar]

Before Liaqat Ali Shah, J

Syed ZAMAN---Petitioner

Versus

MUHAMMAD JAVED and another---Respondents

Criminal Miscellaneous Quashment Petition No. 133 of 2010, decided on 19th July, 2010.

Control of Narcotic Substances Act (XXV of 1997)---

----Ss. 9, 32 & 74---Criminal Procedure Code (V of 1898), S.561-A---Possession of narcotics---Bar contained in S. 74, Control of Narcotic Substances Act, 1997---Scope---Petition for return of vehicle allegedly used in the offence---Counsel for the petitioner had contended that on the principle of analogy of S.32 of Control of Narcotic Substances Act, 1997 the vehicle in question should have been returned by the court to him; that the petitioner had no knowledge of the fact that the driver of the vehicle was using the same for trafficking of narcotics; and that the petitioner earned his livelihood from the said vehicle---Petitioner had provided documents pertaining to the vehicle in question to the Police---Petitioner had not been arrayed as an accused, which would indicate that the Investigating Agency had also admitted his claim---Bar contained in Proviso to S.74 of Control of Narcotic Substances Act, 1997 was not absolute and vehicle involved could be given in cases, where it could be, prima facie, held that the person claiming to be the owner had no knowledge that the vehicle was being used for narcotics---Allowing petition, High Court directed that the vehicle would be returned to the petitioner on furnishing bond.

Noor Alam Khan for Petitioner

Lal Jan Khattak, A.A.-G. for Respondents.

Date of hearing: 19th July, 2010.


JUDGMENT

LIAQAT ALI SHAH, J.---Petitioner Syed Zaman son of Abdul Manan has approached this court for return of vehicle bearing registration No.KH-6906-Sindh, Engine No.128799 Chassis No.233458 sized in case F.I.R. No.381 dated 8-5-2010 under section 9, C.N.S.A., Police Station, City Kohat.

2. On 8-5-2010 at 8-30 hours S.H.O. Police Station, City Kohat, was present on City Check Post, Hangu Road Kohat; on spy information Suzuki No.KH-6906, white colour, was checked. From beneath a ply board, fixed in the body of the vehicle, four packets Garda charas was recovered. On weighment it came to 4800 grams. The driver disclosed his name to be Muhammad Javed whereas another person sitting on front seat disclosed his name to be Gul Nawaz. Both the above persons were arrested as accused. The Suzuki was also taken into possession.

3. The petitioner on 10-5-2010 produced Registration Book, about the said vehicle, which was in the name of Nasir Khan son of Banas Khan resident of Sheikh Abad Colony Qamar Din Ghari along with open transfer letter and photocopy of the I. D Card of the'said Nasir Khan and the receipt.

Petitioner approached the courts below for return of the vehicle. Learned counsel for petitioner argued that on the principle of analogy of section 32 of the C.N.S.A., the vehicle should have been retuned by the courts below to the petitioner. Further that the. petitioner had no knowledge of the fact that the driver was using it for trafficking of narcotics; that petitioner earns livelihood from the said vehicle.

The learned Additional Advocate-General opposed the application.

I have considered the arguments of the learned counsel for the parties and perused the record.

4. Undisputedly the petitioner had provided documents pertaining to the vehicle in question to the police on 10-5-2010. Additionally he has not been arrayed as an accused, which would indicate that the investigation agency has also admitted his claim. The bar contained in proviso to section 74 is not absolute and vehicle involved can be given in cases, where it can be, prima facie, held that the person claiming to be the owner/owners had no knowledge that the vehicle was being used for narcotics use. This petition, as such, is allowed. It is directed that the vehicle i.e. Suzuki No.KH-6906 shall be returned to the petitioner on furnishing bond in the sum of Rs.3,00,000 with two sureties each in the like amount to the satisfaction of trial Court concerned, who shall ensure that the sureties are local and men of means. The petitioner shall not bring any change of any kind in the said vehicle i.e. the secret cavities found in it at the time of its seizure shall remain as were and violation of a single condition mentioned above would render the sureties for the payment of entire bond amount.

H.B.T./279/P                                                                                       Petition allowed.


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