' WAHID BUX BROHI, J.--- Applicant Shareef Khan has called in question the order dated 17-9-2003 passed by learned Special Court CNS Karachi Division whereby the application under section 516- A, Cr.P.C. Moved by the applicant for return of motorcycle bearing Registration No,KAV-9627 involved in F.I.R. No,49 of 2003, Police Station Kalakot for an offence under section 9(b) of the Control of Narcotic Substances Act, 1997 was dismissed.
2. We have heard Mr. S.H. Ghulam Sabir Niazi, learned counsel for applicant and Mr. Javed Akhtar, learned State Counsel and given full consideration to their contentions.
3. Mr. S.H. Ghulam Sabir Niazi contends that as far the ownership of motorcycle is concerned, applicant is the owner and he had no knowledge about the commission of the offence. His contention is based on the contents of the F.I.R. Lodged by Sub-Inspector Irfan Ahmed on 11-3-2003 (F.I.R. No,49 of 2003), which show that in Crime No,48 of 2003 under section 13(d) of Arms Ordinance accused Azam Khan was in custody when above said motorcycle was seized and two pieces of Charas weighing 500 grams were secured from its side top in presence of H.C. Rauf Anwar and P.C.
Ejaz Ahmed.
4. Learned counsel further referred to the documents placed on record in respect of the entries in the Excise & Taxation record which were duly verified by this Court through Nazir. Mr. Javed Akhtar, learned State Counsel opposed the application on the ground that the Investigating Officer of the case would be in a better position to explain the position.
5. Upon Nazir's reference the Excise and Taxation Officer-V, Motor Registration Wing, Karachi has informed that Messrs Dawood Leasing Company Limited is owner of the motorcycle bearing Registration No,KAV-9627 and the document referred to them are genuine. Further, a certificate has been placed on record under the hand of Ayaz Dawood, Director of Dawood Leasing Company Limited stating therein that they had given the motorcycle to Shareef Khan, the applicant, on lease and they have no objection if custody of the motorcycle is delivered to him as he is the lessee. In such a situation on factual side there is, prima facie, evidence to support the contention of the applicant that he is the owner of the motorcycle and not accused Azam Khan, from whose possession it was allegedly secured and the narcotic was found concealed in it.
6. The case is at its earliest stage and no charge has been framed. Irrespective of this it may be observed that in pursuance of the provisions of section 32 of CNS Act a confiscation is to be ordered only when it is established that the owner of the vehicle knew that the offence was or was being committed. Again, the condition laid down under subsection (1) of section 33 of CNS Act calls for a judicial decision on the point of confiscation of a vehicle. Although as per Mr. Javed Akhtar the Investigating Officer, who is witness in this case, is supposed to give evidence on this point, but prima facie in view of the document furnished herein the applicant has a case to support his plea at the trial that he did not know above commission of the offence.
7. All these points are to be thrashed and decided at the trial. Apparently, at this stage, the applicant is entitled to temporary custody of the vehicle. The revision is, therefore, allowed. The motorcycle may be delivered to applicant on Supardaginama on furnishing surety in the sum of Rs,50,000. Final order in respect of the custody/disposal/confiscation etc. Of this motorcycle shall be passed in accordance with law by the trial Court.
Revision .