SHAHJI RAHMAN KHAN, J.---Petitioner namely, Shakeel Arshad son of Sayal Khan resident of House No.480, Street No.17, Sector. E/2, Phase-I, Hayatabad, Peshawar claiming the ownership of motorcar bearing registration No.8629/Peshawar-U has filed the instant Revision Petition against the judgment, dated 8-3-2008 passed by learned Judge, Special Court (CNS), Peshawar, whereby, application of the petitioner for return of the said vehicle on superdari was turned down.
2. On 28-1-2008, the ANF officials seized the vehicle in question from accused/driver Tahir Khan and registered a case vide F.I.R. No. 9, dated 28-1-2008 under section 9(B) of the Control of Narcotic Substances Act, 1997 at Police Station ANF Peshawar.
3. Ms. Farhana Marwat Advocate, learned counsel appearing on behalf of petitioner vehemently argued that the petitioner is bona fide owner of the vehicle, which was seized by the local police of ANF, Peshawar from accused/driver Tahir Khan and the petitioner was not in the knowledge of use of the vehicle for villainous activities nor he permitted him either to misuse the same for transportation of contraband material or for his own benefits rather the petitioner was earning his livelihood by plying the vehicle on rent; that the petitioner is lawful owner of the vehicle according to registration book, copy whereof is placed on record; that the vehicle has been kept by the ANF police in an open space since date of its seizure, which would not only deteriorate its condition due to natural climate but also lose its value if remained in their custody; that at the moment there is no rival claimant of the vehicle, therefore, keeping in view the facts as stated above, the petitioner is entitled to its release on Superdari.
4. On the other hand, Mr. Salah-ud-Din, learned Deputy Attorney General for State supported the judgment of the learned trial Court and stated at the Bar that in view of recovery of 410 grams of heroin from the possession of accused/driver Tahir Khan on the spot, the petitioner is not entitled to the release of vehicle under sections 32 and 74 of the Control of Narcotic Substances Act, 1997 on Superdari.
5. I have heard the learned counsel for both the parties at length and carefully perused the available record.
6. Factual position in this case is that petitioner Shakeel Arshad is bona fide owner of motorcar in question, he has produced the registration book and annexed photocopy thereof with the instant petition, shows that according to the record of the Motor Registration Authority, Peshawar, the petitioner is the owner thereof since 24-7-2007. There is no dispute about the fact that petitioner was earning his livelihood through plying the vehicle on rent, when the ANF police recovered 410 grams heroin from the waistcoat of accused/diver Tahir Khan and not from the vehicle in question.
7. The question which needs determination in, this case is as to whether the petitioner is entitled to the return of vehicle on Superdari in accordance with the proviso of section 32(2) and section 74 of the Control of Narcotic Substances Act, 1997, the answer of this question is in affirmative. The relevant portions of sections 32(2) and 74 ibid are reproduced herein below for facility of reference:-- Section 32(2)
"Provided that no vehicle, vessel or other conveyance shall be liable to confiscation unless it is proved that the owner thereof knew that the offence was being, or was to be, committed."
Section 74.
"Provided that nothing contained in section 523 of the Code of Criminal Procedure, 1898 (Act V of 1898), or any other provisions of the said Code or any other law for time being in force, the custody of narcotics production or manufacture of such drugs or substances or any conveyance used in import, export transport or transshipment thereof or for commission of an offence under this Act, shall not be given on custody to the accused or any of his associated or relative or any private individual till the conclusion of the case."
8. The above quoted provisions of law were considered in 2002 PCr.LJ (Pesh.) 666, wherein, it was held that:-- "Criminal Procedure Code, 1898, S.516-A---Control of Narcotic Substances Act, 1997, Ss.6, 7, 8, 9, 74 and 32---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3/4---Custody of the vehicle-- -Record did not show that the vehicle in question was used in the commission of the crime with the knowledge of the petitioner who claimed to be its owner---Section 74 of the Control of Narcotic Substances Act, 1997, no doubt prohibited the grant of custody of a vehicle used in the import, export 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 his provision by no canons of interpretation could 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 of S.32 of the said Act which had protected the right of the owner who had no conscious hand in the commission of the offence--- Retention of the vehicle in police custody for an indefinite period could also serve no useful purpose---Documents placed on the file, prima facie, indicated the petitioner to be the owner of the vehicle in question at least in the absence of any rival claimant---Police was directed to hand over the custody of the vehicle to the petitioner in circumstances."
9. Admittedly, the petitioner is not accused person in the case and nothing is available on the record of investigation of this case so far showing that the petitioner had any knowledge that the accused persons would use his car for committing any offence relating to narcotics and the law does not place the onus on the petitioner to prove his la.Ck of B knowledge in that regard. The rights of the owners who had no knowledge of the commission of offence or had no conscious hand in the crime, were fully protected. The Courts have come to the rescue of the owners when their vehicles were used without their knowledge for the commission of offence.
10. The car in question is parked in open space exposed to the vagaries of weather. Its retention in police custody for an indefinite period would also achieve no useful purpose.
11. In view of the above discussion, I accept the petition and direct the local police of ANF to hand over custody of the vehicle to the petitioner on furnishing bail bonds in the sum of Rs.5,00,000 (rupees five lacs) with two sureties, each in the like amount to the satisfaction of the learned Judge, Special Court (CNS) Peshawar, who shall ensure that the sureties offered by the petitioner are local, reliable and men of means.
12. However, this order will not prejudice the right of a rival claimant, if any, with a better title.