' NISAR MUHAMMAD SHAIKH, J.---Through this criminal miscellaneous application under section 561-A, Cr.P.C., the applicant Governor Rind has assailed the order dated 8-4-2011 passed by Additional Sessions Judge Sanghar and the order dated 9-3-2011 passed by Civil Judge and Judicial Magistrate-1 Sanghar whereby the application of the applicant under section 516-A, Cr.P.C.
For restoration of the custody of his car on superdari. Was declined.
2. The brief facts relevant for disposal of this criminal miscellaneous application are that the applicant/accused Governor and co-accused namely Ramesh Kumar were allegedly apprehended by the police together with a Coure Car bearing Registration No. AGB-084 of 2004 Model, in which they were going from Shandadpur to Sanghar and on search, 16 cartoons containing total 384 pints/bottles of wine were recovered from the rear seat of such car in which the accused were sitting in the front seat while the same was being driven by the applicant.
Subsequently the applicant, claiming to be the owner of the said car, applied under section 516-A, Cr.P.C. For return of his car to him on superdari but his such applications were dismissed by both the courts below.
3. Learned counsel for the applicant contended that both the courts below rejected the application of the applicant relying upon the cases of Imtiaz Javed v. The State reported as 2009 PCr.LJ 254 and Abdul Salam v. The State reported as 2003 SCMR 246 though both these reported cases pertained to restoration of the vehicles allegedly used in commission of the offence falling under the provisions of Control of Narcotic Substances Act, 1997. He further contended that since there was a specific bar contained in section 74 of CNS Act, 1997 therefore such relief could not be granted but these authorities are not applicable to the present case which is falling under the provisions of Prohibition (Enforcement of Hadd) Order, 1979 which does not bar the restoration Of the car in question to the applicant being its owner as the question of confiscation of such car is yet to be determined after recording the evidence and due trial of the case. In this connection, he also placed reliance on the case of Muhammad Hussain v. The State (PLD 2005 Karachi 196).
4. On the other hand, learned A.P.-G. Appearing for the State, vehemently opposed the above application contending that the applicant was since found carrying a huge quantity of wine in his own car which he was also driving at the time of his arrest and recovery, therefore, he cannot be said to have had no knowledge about the transportation of the wine and that there is a sufficient material on record in respect of his involvement in commission of the alleged 'offence. In support of his contention he also placed reliance on the case of Gul Subhan v. The State (PLD 2005 SC 160).
5. I have considered the above submissions and also perused the relevant record. The case of Gul Subhan (supra) as relied upon by learned A.P.-G. Is not relevant or applicable to the case in hand as in such reported cases the appellant was not found bona fide purchaser/owner of the truck involved in transportation of the charas nor he was in possession of the truck lawfully, therefore, he was held to have no locus standi to claim the same. Whereas the case of Muhammad Hussain v.
The State (PLD 2005 Karachi 196) as relied upon by learned counsel for the applicant shows that the said applicant Muhammad Hussain had applied for the custody of the truck and such application was dismissed on the ground, inter alia, that the accused who were facing trial had absconded away and that the truck in question was liable to confiscation as the same was used in transportation of liquor. In such reported case, the contention of learned counsel was that the confiscation is not a mechanical process and it has to be made after giving the owner an opportunity of being heard and recording evidence and arriving at a conclusion that the owner thereof was also liable and equally responsible for such act. This, however, indicates that in the above reported case the owner of the vehicle was not the accused or driver of such vehicle used in transportation of the contraband material. While interpreting the phrase "liable to confiscation" as used in Article 14 of the Prohibition (Enforcement of Hadd) Order, 1979, it was held in the said reported case that it did not mean that it shall be confiscated in any case. In this regard the interpretation, made by the Apex Court in the case of Abdul Razaq v. The State (PLD 1974 SC 5), was also referred to in the said reported case, including the observation that according to one of the principles now well accepted, no person should be deprived of his property by way 'of penalty unless it is clear that he is in some measure responsible for assisting or furthering the commission of the offence committed.
6. No doubt, it was also held in the above reported case that during pendency of the trial and to determine the extent of involvement of owner of the vehicle in question; the court may give custody of such vehicle to its claimant till determination of his liability in consonance with the provisions of section 516-A, Cr.P.C. But since, in the instant case, the applicant was allegedly found driving the car in which a huge quantity of wine was being transported and since the applicant is accused in such case and he has also claimed himself to be the owner of such car, therefore, his involvement in commission of the alleged offence is direct one, and as such the same disentitles him to the restoration of the car at this stage on superdari and therefore, there appears no illegality in the orders of the courts below, which call for no interference by this court and thus, the present criminal miscellaneous application is hereby dismissed. However, the Trial Court is directed to expedite the proceedings of the case and to conclude the same without any delay and then pass an appropriate order at relevant time in respect of the car in question after affording full opportunity to tht applicant in accordance with law.