FARMANULLAH vs BASHIR and another
This criminal petition was filed under Section 561-A of the Code of Criminal Procedure 1898 seeking the quashment of trial court orders that denied the petitioner custody of his vehicle on 'superdari'. The vehicle had been seized by police in connection with an FIR registered under the Control of Narcotic Substances Act 1997 for transporting illicit substances. The core legal question was whether the vehicle, as case property, should remain in police custody or be released to the petitioner pending trial, given the lack of evidence linking the owner to the alleged narcotics transportation. The Peshawar High Court held that since there was no evidence on record indicating the petitioner's consent, connivance, or complicity in the transportation of narcotics, or that the contraband was concealed in a secret cavity, the retention of the vehicle in police custody was unnecessary. The Court allowed the petition, directing the release of the vehicle to the petitioner subject to furnishing substantial surety bonds, while emphasizing that the trial court must still determine title and registration during the trial as per statutory requirements.
- Can a vehicle seized in a narcotics case be released on superdari to its owner pending trial?
- Is the retention of a vehicle in police custody necessary if there is no evidence of the owner's complicity in the transportation of contraband?
- Does the court have the power to order the release of case property under Section 561-A of the Code of Criminal Procedure 1898?
- Section 561-A, Code of Criminal Procedure 1898
- Section 9, Control of Narcotic Substances Act 1997
- Section 33, Control of Narcotic Substances Act 1997
' YAHYA AFRIDI, J.---Farmanullah son of Gul Wali Shah has sought the jurisdiction of this Court under section 561-A of the Criminal Procedure Code, 1898 ("Cr.P.C.") for quashment of the orders of the learned trial Court, whereby the application of the petitioner for the custody of the vehicle ("Vehicle") bearing Registration No,V:B:-865 Islamabad on 'superdari' taken into custody by the local Police under section 9 C.N.S.A., vide F.I.R. No, 288 dated 15-10-2010 in Police Station Khawaja was, District Charsadda, for having transported illicit substance.
2. Learned counsel appearing on behalf of the petitioner contended that where there is nothing on the record to show that the narcotics in the vehicle was transported with the consent of the petitioner, therefore, he cannot be punished by denying its custody to him who happened to be its legitimate owner.
3. Learned counsel appearing on behalf of the State argued that the petitioner is neither the lawful registered owner of the vehicle in question nor its last possessor therefore, his request for custody has rightly been declined by the forums below.
4. The valuable arguments of the learned counsel for the parties heard and the available record of the case thoroughly considered.
5. Lest this Court passes any finding on merit, which would surely prejudice the case of the parties during the trial, suffice it to state that so far nothing has been brought on the record to show that the substance recovered from the vehicle was transported with the consent, connivance or complicity of the petitioner or that the contraband were kept in secret cavity of the vehicle. When so, this Court does not think, retention of vehicle in Police custody would be necessary for any purpose notwithstanding it is a case property.
6. Needless to state that the trial Court has to consider the title and registration of the vehicle in the name of the petitioner during trial as envisaged in section 33 of the CNSA.
7. If the vehicle is required for production and exhibition in the Court, that can be arranged by directing the petitioner to produce the same, if and when required.
8. Accordingly to the reasons stated hereinabove, this petition is allowed and the vehicle is directed to be released to the petitioner, if he furnishes bonds in the sum of Rs,5,00,000 with two sureties each in the like amount to the satisfaction of the Illaqa/Judicial Magistrate, who is to ensure that the sureties are local reliable and men of means. However, the petitioner shall produce the vehicle in the Court if and when required.