Through the instant appeal filed under Section 48 of the Control of Narcotic Substances Act, 1997, the appellant has assailed the vires of impugned order dated 29.03.2017, passed by learned Additional Sessions Judge, Taxilla, District Rawalpindi; whereby his petition seeking superdari of vehicle Toyota Corolla silver colour bearing registration No. QIL-059 was declined.
2. Facts of the case succinctly required for determination of the lis in hand are that on 11.11.2016 during the course of investigation in case FIR No.659/2016, dated 01.01.2016, offence under Section 9(c) of the Control of Narcotic Substances Act, 1997, Police Station Saddar Wah, accused Faqeer Hussain after making disclosure led towards Mala Kand Stop where a vehicle Toyota Corolla silver colour bearing registration No. QIL-059 was standing in which one Amir Khan son of Bakhsh was sitting. On search from the vehicle contraband charas weighing 7-KGs and 260-grains was recovered and in this regard case FIR No.661/2016, dated 11.11.2016, offence under Section 9(c) of the Control of Narcotic Substances Act, 1997, was registered at Police Station Saddar Wah. The vehicle was taken into custody by the police. The petitioner being real owner of the vehicle applied for its superdari, which was declined by the learned trial court vide impugned order . Hence, this appeal.
3. At the very outset learned counsel appearing on behalf of the appellant submits that the impugned order has been passed by the learned trial court in a stereotype manner without adverting to real facts of the case and material available on record. Further contends that the appellant is lawful owner of vehicle Toyota Corolla silver colour bearing registration No.QIL-059. Next submits that as a matter of fact appellant runs the business of Rent-A- Car in the name and style of 'Bala Hissar Rent-A-Car , Peshawar" who gave the subject vehicle on rent to Amir Khan accused vide receipt dated 11.11.2016. Adds that neither the appellant has any concern whatsoever with the alleged trafficking of the narcotic substance nor he is accused in the case. It is vehemently argued that as the appellant has no concern with the case, therefore, keeping in view the pronouncement of apex Court in the case of Allah Ditta v. The State (2010 SCMR 1181) he is entitled to possession of the vehicle. Submits that the condition of the vehicle while lying at Police Station is deteriorating day-by-day . Learned counsel further submits that the appellant is ready to furnish surety to the satisfaction of the learned trial court with the undertaking to produce it during the course of trial as and when required.
4. On the other hand, learned DDPP vehe mently opposes the contentions raised on behalf of the appellant mainly due to bar contained in Section 74 of the Control of Narcotic Substances Act, 1997. He further submits that if the vehicle is given on superdari to the appellant and the same is stolen it may prejudice the prosecution case during the course of trial.
5. We have considered the arguments advanced by learned counsel for the parties and gone through the record available on file.
6. Record available on file reveals that during the course of investigation in case FIR No.659/2016, dated 01.01.2016, offence under Section 9(c) of the Control of Narcotic Substances Act, 1997, Police Station Saddar Wah, on the disclosure of the accused of that case, Investigating Officer conducted raid at Mala Kand Stop from where vehicle Toyota Corolla silver colour bearing registration No. QIL-059 was taken into possession and at that time one Amir Khan son of Bakhsh was sitting in the vehicle. Out of the vehicle contraband charas weighing 7-KGs and 260-grams was recovered and in this regard case FIR No.661/2016, dated 11.11.2016, offence under Section 9(c) of the Control of Narcotic Substances Act, 1997, was registered at Police Station Saddar Wah, which is pending adjudication before the learned trial court. The stance of the appellant is that he is lawful owner of the vehicle, which stands registered against his name in the relevant record. Admittedly the registration of the case in the name of the appellant has also been verified by the Investigating Officer. According to version of the appellant, he is involved in the business of 'Rent-A-Car' and the subject vehicle was given to Amir Khan accused of case FIR No.661/2016, dated 11.11.2016, offence under Section 9(c) of the Control of Narco tic Substances Act, 1997, Police Station Saddar Wah on rent on 11.11.2016 after due receipt, which is also available on record as Annexure-D. This aspect is also denied by the other side.
7. As far as bar contained in Section 74 of the Control of Narcotic Substances Act. 1997, as raised by leaned DDPP is concerned; the same has been deliberated by august Supreme Court of Pakistan in the case of Allah Ditta v.
The State (2010 SCMR 1181) wherein it has been categorically held that if the owner of the vehicle is not accused of the case and has no knowledge that his vehicle would be used for trafficking the narcotics, the provisions of Section 74 of CNSA, 1997, shall not create any bar for giving the vehicle to him on temporary custody . Relevant portion of the judgment is reproduced as under:- "---S. 74, Proviso---Scope---Proviso of S. 74 of the Control of Narcotic Substances Act, 1997, does not prohibit the release of vehicle involved in the trafficking of narcotics to its owners, who is not connected in any way with the commission of the crime or the accused and was unaware that his vehicle was being used for the crime." Therefore while examining the case in hand on the touchstone of guidelines given in the pronouncement of the apex Court referred to above, we are of the considered view that it is a fit case where the appellant is entitled to temporary custody of the vehicle.
8. For the foregoing reasons, we allow this appeal as a consequence whereof custody of vehicle Toyota Corolla silver colour bearing registration No.QIL-059 is handed over to the appellant tempo rarily subject to furnishing surety bonds in the sum of Rs.15, 00,000/- with one surety in the like amount to the satisfaction of the learned trial court and after valid receipt. It is made clear that before handing over custody of the vehicle to the appellant, its relevant pictures would be taken and placed on the record. Moreover , the appellant shall produce the vehicle as and when directed/required during the course of trial, without fail.
9. Appeal allowed.