IKRAMULLAH KHAN, J.---Through the instant, revision being filed, under the provisions of section 439, Cr.P.C., whereof, the impugned judgment/order of the learned Additional Sessions Judge-XI, Peshawar dated 29-10-2013, had been challenged, whereby, the prayer for release of the vehicle, taken into possession by the Police on interim custody (Superdari) to the petitioner had declined.
2. The car in question, Toyota XLI, Model 2011, having registration No, UE-797, Islamabad, had taken into possession, being the case property of case and FIR No, 520 dated 6-10-2013, under section 9, C.N.S.A., 1997, registered at Police Station, University Town, Peshawar, the petitioner, claiming thereof, that he is the owner of the car in issue, driven by accused Shahid Imran, as a Taxi, being his driver, was unaware of that the accused would use the car in the commission of offence, for which he had charged. Also, put of its submission before the Court, that as there is no likelihood of confiscation of the vehicle, while, the car in issue had been parked in an open place, by the concerned Police, of P.S.; University Town, Peshawar, there is strong apprehension, that the said car would be damaged due to the forthcoming winter season, while it would consumed a long period in the conclusion of the trial, prayed for interim custody of the vehicle.
3. The learned Law Officer, who made good its appearance in the case on behalf of the State, argued that the car in question, had been used in the transportation and trafficking of huge quantity of narcotics, onward to the province of Punjab, could not be released; on interim custody, on account of the bar placed there under the provisions contained in section 74 of the Narcotic Substances Act, 1997 (thereafter as C.N.S.A., 1997).
4. The available record reveals, that four person were present in the car in question, when it was intercepted by the Police, whereof 4 kgs of narcotics substances, concealed thereof in the secret cavities, made for the purpose, was recovered, whereof, the name of one accused was Shahid Imran son of Nazar Hussain resident of Mandi Bahauddin, Punjab. It is pertinent to be noted here, that the petitioner is also Shahid Imran but son of Muhammad Hayat.
5. The submission of the learned counsel for the petitioner, that, the car in question could not be confiscated thereunder the provisions contained in section 32 of the C.N.S.A., 1997, is pre-mature at this stage.
6. The provision of section 32, if reproduced be as;--
32. Articles connected with narcotics.---(1) Whenever any offence has been committed which is punishable under this Act, the narcotic drug, psychotropic substance or controlled substance, materials, apparatus and utensils in respect of which or by means of which such offence has been committed shall be liable to confiscation.
(2) Any narcotic drug psychotropic substance or controlled substance lawfully imported, transported, manufactured, possessed, or sold along with, or in addition to any narcotic drug, psychotropic substance or controlled substance which is liable to confiscation under subsection
(1) and the receptacles or packages, and the vehicles, vessels and other conveyances used in carrying such drugs and substances shall likewise be liable to confiscation: 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."
7. The language of the proviso, attached thereto subsection (2) of section 32 of C.N.S.A., 1997, has been couched in a manner whereof, the burden of proof was placed on the prosecution, to prove that the offence had been committed through the vehicle, such fact was within the knowledge of the private person-owner of the vehicle. Being the case so, it needs recording of evidence, and production of documentary proof in that rgard, require an opportunity of leading evidence whereas, without leading and production of evidence by the prosecution witnesses in that behalf, it could not be presumed that the car in question, could not be liable to confiscation.
8. However, no vehicle shall be confiscated, without giving an opportunity of hearing in this regard to the claimant. The claimant shall be at liberty to produce and adduce, the required evidence, in order to place its case before the trial Court that he had no nexus with the commission of offence and not ever involved or had any connection with the accused involved in the commission of the offence.
9. As neither the prosecution, nor the petitioner had availed the respective opportunities, in order to discharge their respective burdens placed in this regard by the law of narcotics, in due course of trial, it is premature to hold that the car in question is not liable to confiscation.
10. The provisions contained in section 74 of the C.N.S.A., 1997, in unequivocal terms, place an embargo on the release of any vehicle on interim custody, involved in any offence, under the C.N.S.A., 1997, which is read as;--
74. Application of other laws.---If an offence punishable under this Act, is also an offence in any other law for the time being in force, nothing in that law shall prevent the offender from being punished 'under this Act: Provided that nothing contained in section 523 of the Code of Criminal Procedure, 1898 (Act V of 1898), or any other provision of the said Code or any other law for time being in force, the custody of narcotic drugs psychotropic substances, controlled substances, any material utensils used for 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 associate or relative or any private individual till the conclusion of the case. [Except as provided in the second proviso to subsection (2) of section 33].
11. Though no absolute bar could be placed on releasing vehicle on interim custody there under the provision contained in section 74 of C.N.S.A., 1997, but the claimant, shall at least prima facie, establish that he had no nexus or connection of whatever kind be with the commission of the offence or with the offender. I fortify my this point of view, by the judgment of the Apex Court delivered therein case of "Abdul Salam v. The State" (2003 SCMR 246), wherein it was held as;-- "Vehicle involved in the transportation of the narcotics, according to S.74 of the Control of Narcotic Substances Act, 1997, would not be released during the trial, however absolute bar cannot be created for the release of the vehicle if as per Section 32 of the said Act it is, prima facie, established that the owner had no knowledge of the narcotics having been transported in it."
Reliance in this regard would be also placed on the case of "Allah Ditta v. State" (2010 SCMR 1181).
And the case of "The State v. Rashid" (PLD 2003 Peshawar 87).
12. Trial Court essentially can form an opinion thereafter taking into consideration the facts of the case, in releasing a vehicle on interim custody irrespective of the fact, that section 74 places an embargo on such interim custody, during trial, because, if a Court has conferred with jurisdiction to grant a final relief it may also exercise its judicial B discretion to grant the relief of interim custody, being possesses inherent jurisdiction in this regard.
13. No material was available on record to show that the petitioner had no knowledge about the narcotics being transported in his vehicle, while it is prima facie, admitted by the petitioner, that the accused Shahid Imran, was his driver, which prima facie made a nexus of the petitioner with the accused, whereas, proposition of its innocence, could not be determined, without recording of evidence in this regard, that it was not known to him that the offence being or has to be committed through the vehicle in question.
14. The C.N.S.A., 1997, is a special law, which has super imposing status as regard to the general criminal law special procedure has been provided therein for redressal of grievance, recourse to the general law shall be avoided. The provisions contained in section 48 of the C.N.S.A., 1997, conferred rights upon an aggrieved person to file an appeal, against any order passed by the special Court in exercise of its jurisdiction thereunder any provisions of the said Act, no revision, shall be competent, without first exhausting the remedy of appeal provided thereunder section 48 of C.N.S.A., 1997. So the instant revision petition is not maintainable on this score too.
15. Keeping in view, the reasons given hereinabove, this revision petition, being devoid of any force, accordingly dismissed.