2014 M L D 587_ Peshawar High Court Allowed Superdari

2014 M L D 587

[Peshawar]

Before Assadullah Khan Chamkani and Muhammad Daud Khan,  JJ

NASEEB RAHMAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 78-M  of  2013,  decided  on  27th  September,  2013.

Criminal Procedure Code (V of 1898)---

----S. 516-A---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 32 & 74---Possessing and trafficking of narcotics---Superdari of vehicle---Vehicle in question had been seized in narcotic case from accused against whom the trial was in progress---Claimant of the vehicle was not accused in the narcotic case---Vehicle being non-customs paid had been registered in the name of the claimant and no other person had come forward to claim ownership or possession of vehicle in question---Nothing was on the file to indicate that the vehicle was used in the commission of the crime with the knowledge of the claimant---No doubt S.74 of Control of Narcotic Substances Act, 1997 prohibited the grant of custody of the vehicle used in the export,  import  or  transportation  of  narcotic  substance  to  accused,  or  any  of  his associates, or relatives, or any private individual, till the conclusion of the same, but the application of that provision of law, could not be extended to cover an owner, who had no hand or involvement in the crime, as it  could  not  be  construed  independently  of the provisions contained in S.32 of said Act which protected the right of the owner, who had no conscious hand in the commission of the crime---Retention of vehicle in Police custody for an indefinite period, would serve no useful purpose---Judicial discretion could also be exercised for release of the vehicle on 'Superdari' in view of the principle that if a court could grant final relief, it also possessed inherent jurisdiction to grant temporary relief pending proceedings before  it,  subject  to  fulfilling  condition  by  the  claimant  under  the  law  for  getting  relief  finally  from  the  court---Custody  of  vehicle  in question along with its documents, was ordered to be handed over to the claimant on furnishing bond/security, in circumstances.

            Muhammad Hanif v. The State and others 2011 SCMR 1471 and Amin Nawaz Baloch v. The State 2013 YLR 1626 rel.

            Zia-ur-Rehman Uthmankhel for Appellant.

            Rafiq Ahmad, Deputy Advocate General for the State.

            Date of hearing: 27th September, 2013.

JUDGMENT

            MUHAMMAD DAUD KHAN, J.---Appellant Naseeb Rahman has impugned the order of learned Additional Sessions Judge, Samarbagh Camp Court, Timergara, dated 18-12-2012, vide which the application of the petitioner for 'superdari' of motorcar bearing registration of No.LPD/666 along with its documents, was dismissed.

2.         Facts of the case in brief are that on 30-11-2012 at 20-30 hours, Juma Rahman Khan S.H.O. along with police `Nafri', was present on the place of occurrence for checking purpose; meanwhile a motorcar bearing Registration No.LPD/666 coming from Timergara side was stopped; on suspicion driver of the vehicle was brought down from the motorcar and was searched, while search of the vehicle led to recovery of 1250 grams Charas. The Charas along with vehicle in question was seized. The driver disclosed his name as Ijaz-ul-Haq son of Syed Qadir, who was arrested on the spot. Murasila was drafted and sent to police station on the basis of which a case vide F.I.R. No.813 dated 30-11-2012, under section 9-C, C.N.S.A. was registered at Police Station Khall, Dir Lower.

3.         The appellant approached the Court of Judicial Magistrate, Dir Lower for return/Superdari of the motorcar, but since by then the trial had commenced, therefore, the Judicial Magistrate filed the application due to lack of jurisdiction as by then the trial commenced. Thereafter, the appellant approached the Court of learned Additional Sessions Judge/ Izafi Zilla Qazi, Samarbagh Camp Court Timergara, who dismissed the same vide order dated 18-12-2012.

4.         Learned counsel for the appellant contended that the appellant is lawful bona fide owner and last purchaser of the vehicle in question, which is no more required for further investigation and there is apprehension of damage to the vehicle for the reason that trial will take time; that the motorcar was purchased by the appellant vide receipt dated 31-8-2012; that the appellant used to run a business of rent a car and it was in this background that he rented the motorcar in question to the accused, having no knowledge about transportation of the 'Charas'. He further contended that the appellant will produce the vehicle to the trial Court whenever it is so required.

            On the contrary, the learned D.A.G. appearing on behalf of the State, defended the impugned order and argued that the vehicle in question has been seized in a narcotics case, wherein huge quantity of 'Charas' was recovered. He further argued that the motorcar in question was not taken into possession from the appellant, therefore, he cannot claim its possession. Lastly, the learned D.A.G. prayed that since the motorcar mentioned above, being the case property, is yet to be exhibited during the trial, therefore, return of the same will create complication for the trial Court.

5.         Arguments heard and record perused.

6.         A minute perusal of record would reveal that the motorcar in question has been seized in a narcotic case from accused Ijaz-ul-Haq, against whom the trial is in progress. The appellant who claims to be the owner of the motorcar, is not an accused in the narcotic case. The appellant has annexed a copy of receipt dated 31-8-2012, issued by Post Commander, Dargai, which shows that the vehicle being non-customs paid has been registered in the name of appellant. It is evident from the record that no other person came forward to claim ownership or possession of vehicle in question. The record further transpired that there is nothing on the file to indicate that the vehicle was used in the commission of the crime with the knowledge of the appellant. No doubt section 74 of the Act prohibits the grant of custody of the vehicle used in the export, import or transportation of narcotic substance to the accused or any of his associates or relatives or any private individual till the conclusion of the case, but the application of this provision by no canon of interpretation can be extended to cover an owner who has no hand or involvement in the crime, as it cannot be construed independently of the provision contained in section 32 of the Act, which protects the right of the owner, who has no conscious hand in the commission of the crime. In addition, retention of a vehicle in police custody for an indefinite period would serve no useful purpose. Moreover, judicial discretion can also be exercised for release of the vehicle on "superdari", in view of the principle that if a Court can grant final relief, it also possess inherent jurisdiction to grant temporary relief pending proceedings before it subject to fulfilling condition by the appellant under the law from getting relief finally from the Court. Reliance can be placed on case-law reported in 2011 SCMR 1471 `Muhammad Hanif v. The State and others', 2013 YLR 1626 [Peshawar] 'Amin Nawaz Balouch v. The  State'.

            In view of the above discussion, this appeal is allowed and the order of Additional Sessions Judge, Samarbagh Camp Court, Timergara, dated 18-12-2012 is set-aside and custody of motorcar bearing Registration No.LPD/666 along with its documents be handed over to the appellant on furnishing bond/security in the sum of Rs.500,000 (Rupees Five Lac) with two sureties each in the like amount to the satisfaction of learned trial Court, who shall ensure that the sureties are local, reliable and men of means, however, the vehicle shall be ensured to be produced as and when required by the learned trial Court. Needless to say that the learned trial Court shall conclude the trial within a period of two months as soon as it receives copy of order of this Court.

HBT/600/P                                                                                          Appeal allowed.