MUHAMMAD HANIF vs THE STATE and others

' ASIF SAEED KHAN KHOSA, J.---The matter in hand pertains to superdari of a vehicle (Toyota Hilux bearing registration No, 832) which had been secured as case-property in connection with case F.I.R. No, 14 registered at the Investigation and Prosecution Cell, Collectorate of Customs, Customs House, Nabha Road, Lahore on 18-3-2010 in respect of offences under sections 6, 7, 8, 9(c), 14, 15 and 16 of the Control of Narcotic Substances Act, 1997. An application seeking superdari of that vehicle submitted by the present petitioner had been dismissed by the learned Additional Sessions Judge, Lahore on 20-1-2011 -and Criminal Appeal No, 39 of 2011 preferred in that regard by the petitioner was subsequently dismissed by a learned Division Bench of the Lahore High Court, Lahore on 26-1-2011. Hence, the present petition for leave to appeal before this Court.

2. We have heard the learned counsel for the petitioner and the learned Additional Prosecutor- General, Punjab appearing for the State and have gone through the relevant record of this case with their assistance.

3. It has straightaway been observed by us that the present petitioner was not an accused person in the above mentioned criminal case and the accused person nominated in the F.I.R. Namely Babar Rehman has already confessed his guilt before the learned trial Court and he has been convicted and sentenced by it for the offence committed by him. According to the prosecution the accused person had travelled to an airport in the above-mentioned vehicle and he had been caught with some narcotic substance at the airport at a time when the vehicle in issue was not in his control or possession. It is alleged that the said accused person had brought the narcotic substance in the vehicle in issue to the airport and that is why the said vehicle had been taken into custody as case-property. Admittedly nothing incriminating had been recovered from the relevant vehicle and the same had been taken into custody by the investigating agency merely because the same had allegedly been used by the accused person for travelling to the airport. Judged at the yardstick laid down by a Full Bench of the Lahore High Court, Lahore in the case of Javed Hayat and another v. The State (PLD 2006 Lahore 167) the vehicle in issue could not have been treated as case-property and thus, the same could not have been taken into custody by the investigating agency. The petitioner happens to be a registered owner of the said vehicle and no other person has so far come forward to claim ownership or possession of that vehicle. The petitioner is not an accused person in the above mentioned criminal case and he undertakes to produce the relevant vehicle before any court of law if and when required to do so.

4. In the circumstances of this case mentioned above we have felt A no hesitation in concluding that the investigating agency was not justified in treating or taking possession of the above mentioned vehicle as case-property. In this view of the matter the delay in filing of this petition is condoned, this petition is accepted and the same is converted into an appeal and is allowed with a direction that the vehicle mentioned above is not, to be treated as case-property of the relevant criminal case and the same shall immediately be handed over to the appellant who happens to be its registered owner without any contest from any quarter. This appeal is disposed of in these terms.