' MUHAMMAD ALAM KHAN, J.--- State through the Director Anti-Narcotics Force, Peshawar has filed this quashment petition under section. 561-A, Cr.P.C. Against the respondent Abdul Qadir Paracha, vide which the petitioner seeks the quashment of order dated 28-1-2006 passed by the learned Additional Sessions Judge/Judge Special Court, D.I. Khan granting the custody of Vehicle No,IDN- 2216 (IDN-3722) to the respondent.
2. Briefly narrated the facts of the case are that A.N.F. Police Station, Dera Ismail Khan on 27-7-2004 intercepted a Toyota Corolla Car Model 2003 bearing Registration No, IDN-2216 (IDN-3722) from which 520 kilograms Charas Garda was recovered and in this respect case was registered under section 9(c), Control of Narcotic Substances Act, 1997 read with section 13, Arms Ordinance vide F.I.R. No,4 dated 27:7-2004 against the two accused Khanzada alias Khanai and Ibrar Hussain.
Pursuant to this F.I.R, the Charas as well as the Car mentioned above was taken into possession.
The case was put in the Court of Mr. Sajjad Anwar Khan, Additional Sessions Judge-V/Judge Special Court, A.N.F. D.I. Khan which was registered as Special Case No,5 of 2005 and the learned Special Court, after recording of evidence and conclusion of trial, vide order dated 11-8-2005 convicted accused Khanzada to life imprisonment under section 9(c) Control of Narcotic Substances Act with a fine of Rs,1,00,000 and the Car in question was confiscated to the State.
However, accused Ibrar Hussain was acquitted.
3. Abdul Qadir Paracha, the present respondent, claiming himself to be the owner of the vehicle, filed Criminal Appeal No,104 of 2005 before this Court challenging the order of the learned Special Judge dated 11-8-2005 to the extent of confiscation of the vehicle and this Court vide order dated 13-10-2005 accepted the appeal of the respondent on the ground that the respondent-owner of the Car was entitled to a notice under section 33 of the Control of Narcotic Substances Act which had not been issued to the respondent-owner and thus, the order with respect to the confiscation of the vehicle was set aside and the case was remanded to the learned Special Court for issuance of a notice to the respondent and to decide the entitlement of the appellant to the custody of the Car.
4. After remand, the learned Additional Sessions Judge-V/Special Judge, vide Case No,15 of 2005 decided on 28-1-2006,held that the respondent Abdul Qadir Paracha had proved his ownership of the car in question and that he had no connection or association with the accused involved in the case regarding the commission of offence under section 9(c), Control of Narcotic Substances Act and thus, declared him to be entitled to the custody of the car.
5. Director, Anti-Narcotics Force, Peshawar feeling aggrieved from the order dated 28-1-2006, has filed this quashment petition seeking the quashment of the order of the Special Court.
6. Mr. Salahuddin Khan, Deputy Attorney-General on behalf of the petitioner submitted that the case had been remanded by this Court to the Additional Sessions Judge/Special Court, D.I. Khan and in the meantime a Notification had been issued on 13-9-2005 by the Federal Government extending the jurisdiction of the Special Court Control of Narcotic Substances to Anti Narcotics Force Police Station, D.I. Khan also besides, Peshawar, Kohat and Haripur. It was next submitted that while remanding the case by this Court vide order dated 13-10-2005 in Criminal Appeal No,104 of 2005 titled Abdul Qadir Paracha. v. State, Police Station A.N.F., D.I. Khan had been included vide the above quoted Notification and special jurisdiction had been conferred on the Special Judge (C.N.S.) Peshawar camp Court D.I. Khan and the learned Additional Sessions Judge had no jurisdiction to determine the custody of the vehicle in question.
7. On the other hand, the respondent in his detailed written arguments submitted that the learned Additional Sessions Judge-V/ Special Court, D.I. Khan was duly notified as a Special Judge under the Control of Narcotic Substances Act and notification referred to by the learned Deputy Attorney General was with respect to the pending cases in which no conviction had, by then, recorded by the notified Special Judge. It was further argued that the learned Additional Sessions Judge/ Special Judge, D.I. Khan, to whom the case had been remanded, was duly empowered under the Control of Narcotic Substances Act, and had the jurisdiction to decide the question relating to the custody of the' Car in question.
8. I have given my anxious consideration to the facts and legal position involved in the case.
9. Perusal of the record reveals that a Notification was issued by the Government of Pakistan, Law, Justice and Human Rights Division, Islamabad on 13-9-2005 and under section 46(1) of the Control of Narcotic Substances Act, the jurisdiction of Special Court (C.N.S.) Peshawar was extended to A.N.F. Police Station D.I. Khan also and pursuant to this notification, the Honourable Chief Justice of this Court ordered that twelve cases of A.N.F. Pending in various Courts at D.I. Khan were transferred to Special Court (C.N.S.) Peshawar for disposal, but, in the present case the trial of the case, in which the vehicle had been confiscated, had by then concluded and the learned Additional Sessions Judge-V/Special Court, D.I. Khan had recorded the conviction prior to the coming into force of this notification. Thus, this Court rightly remanded the case to the Additional Sessions Judge Special Court, D.I. Khan who had already disposed of the case which resulted in the conviction of the accused and confiscation of the vehicle in question.
10. After remand, the learned trial Court after recording of evidence and taking into consideration the material on the record, came to the conclusion that the petitioner Abdul Qadir Paracha had proved himself to be the owner of the car and the same had been leased out to the convict Khanzada, on rent and he had no knowledge regarding the trafficking of the contraband in the vehicle and the learned counsel rightly 'declared him to be entitled to the custody of the car.
11. As there was no rival claimant of the vehicle and the fact that the respondent-owner had no nexus with the commission of the offence, had a vested right to the custody of the car as held in the case of State. v. Rashid PLD 2003 Pesh. 87, Muhammad Amin v. State PLD 2004 'Karachi 485 and Abdul Waheed v. The State 2002 PCr.LJ 666.
12. The order of the learned 'Additional Sessions Judge/Special Court, D.I. Khan is perfectly sound, just and strictly in accordance with law which calls for no interference and is not liable to be quashed.
13. During the pendency of this petition, one Malik Muhammad Salim Paracha submitted an application for the custody of the same Car. Which was registered as Criminal Miscellaneous No,7 of 2008 and when it came for hearing, the present respondent and Malik Muhammad Salim Paracha recorded a joint statement to the effect that the petitioner Malik Muhammad Salim Paracha has no objection if the custody of the Car is given to Abdul Qadir Paracha. Resultantly, this Criminal Miscellaneous No,7 of 2008 is dismissed.
14. In view of the facts and circumstances of the case narrated above, there is no force in this quashment petition which is dismissed.
15. Vide my short order dated 27-3-2008, I had dismissed the petition. The above are the reasons for the same.