' TALAAT QAYYUM QURESHI, J.---Customs Intelligence Staff on 30-11-2001 intercepted Motor Car Registration R/W-477 at Khair Abad. After thorough search, heroin weighing 5 Kgs. Was recovered from the rear seat of the said Car. Consequently, a case vide F.I.R. No, 50 was registered on 30-11- 2001 under sections 6, 7, 8 and 9 of C.M.S. Act, 1999 read with sections 16, 156(1)(89), 157, 178 and 2(s) of Customs Act, 1969 at Police Station I & P Branch, Peshawar. Petitioner submitted an application for release of the said Motor Car on Superdari before the learned Judge Special Court, Nowshera,.
Which was allowed vide order dated 1-3-2002. Motor Car in question was directed to be handed over to petitioner on Superdari on furnishing bail bonds in the sum of Rs,5,00,000 with three sureties each in the like amount to the satisfaction of learned Judge Special Court, Nowshera. Being not satisfied with the said order, the State has now filed revision petition in hand.
2. Mr.Salahuddin learned Deputy Attorney-General argued that the impugned order is in sheer violation and contravention of mandatory provisions of section 74 of the Control of Narcotic Substances Act, 1997. The learned Special Judge had no jurisdiction to hand over the Motor Car on Superdari to petitioner, therefore, the impugned order be set aside.
3. On the other hand Mr. Sardar Hussain, Advocate learned counsel representing respondent argued that the respondent was bona fide owner of the vehicle in question, who had given the same to 'M/s Khyber Rent A Car and the said car was obtained by Abid Gul accused on 29-11-2001 from ,'M/s. Khyber Rent A Car'. At the time of taking the said car from above named Agency he had given surety of one Ijaz, a Bank employee and first cousin of Abid Gul to the said Agency and it was on the basis of said surety that 'M/s. Khyber Rent A Car' had handed over the car to him which fact was further corroborated by recovery of identity card of accused Abid Gul, and authority letter of 'Messrs Khyber Rent A Car' from dashboard of Motor Car with the same was intercepted.
4. It was also argued that there is no bar in section 74 of C.N.S.A. For releasing the Motor Car on Superdari to the rightful owner. The learned Judge Special Court has properly exercised his discretion in accordance with law, hence the impugned order needs no interference.
5. We have heard the learned counsel for the parties and perused the' record.
6. It is admitted position that respondent Rashid son of Bahram is owner of motor car in question.
He had produced original Registration before the learned Judge Special Court, Nowshera and had also annexed copy of the same with petition. Registration Book shows that the said Motor Car had been transferred in the name of respondent. There is also no dispute to the fact that the said Motor Car was given to 'Messrs Khyber Rent A Car Cantonment Plaza, Peshawar Cantt. From where Abid Gul accused had obtained the same a day prior to the date of occurrence. This fact is corroborated by recovery of authority letter of 'Messrs Khyber Rent A Car' from dashboard of the said Car when the same was taken into possession.
7. The argument of the learned Deputy Attorney-General that the impugned order was in violation of section 74 of C.N.S.A. And that the learned Judge Special Court had no jurisdiction to hand over the said Car on Superdari to respondent has no force. Firstly, because section 74 of C.N.S.A., 1997 places embargo upon releasing the conveyance used in commission of an offence to the accused, or any of his associate or relative or any private individual till the conclusion of the case. No embargo has been placed that such a vehicle shall not be released to the bona tide owner of the vehicle, who is neither accused in the commission of offence nor is associate of the actual accused. The words private individual' used in this section does not include the owner of the vehicle. Had the intention of the Legislature been to deprive all persons including owner to get the vehicle released on Superdari, then instead of using words 'any private individual' words 'any person' should have been used. Either the word 'any person' has been left inadvertently by the law makers or the words 'any private individual' have been purposely used leaving the scope open for the bona tide innocent owner to get his vehicle on Superdari. Secondly, the law makers in its own wisdom had given a proviso in section 32 of C.N.S.A., whereby no vehicle, vessel or other conveyance would be liable to confiscation unless it was proved that the owner thereof knew that the offence was being or was to be committed. The word "owner" used in this section is significant.
The rights of the owners who had no knowledge of the commission of offence or had no conscious hand in the crime or the owner of the vehicle who may be running a Taxi service or had given the car to "rent a car" service or whether he had handed a vehicle to a driver for running an errand for him and he had nothing to do with the crime, were fully protected. If such a vehicle, the owner of which was not involved in the commission of offence was ultimately on conclusion of trial was to be released, then there appears to be no lawful justification to keep the same in custody for the misuse of the official of the detaining Agency. Thirdly, in similar case, viz. Abdul Hamid v. The State (2002 PCr.LJ 666) and Niazullah v. The State (2002 PCr.LJ 97), the Courts have come to the rescue of the owners when their vehicles were used without their knowledge for the commission of offence.
' Keeping in view the above discussion and the cases cited above, we find no reason to interfere with the impugned order. Resultantly, the revision petition is dismissed.