Mst. SAIRA KHAN vs The STATE
This appeal challenges the order of the Special Court (CNS), Peshawar, which dismissed the appellant's application for the return of a vehicle seized during a narcotics case. The core legal question was whether the vehicle, owned by the appellant's late husband and used by a third party to transport narcotics, should be confiscated or returned to the legal owner. The Court found that the vehicle was owned by the appellant's late husband, who operated a rental car business, and that the accused had merely hired the vehicle. Crucially, the evidence established that the secret cavity used for smuggling was not specially fabricated for the purpose, and there were no rival claimants for the vehicle. The Court held that in the absence of evidence linking the owner to the criminal activity and given the proof of legitimate ownership, the confiscation was unjustified. The appeal was accepted, the impugned order was set aside, and the return of the vehicle to the appellant was ordered, establishing that a vehicle used in a crime by a hirer should not be confiscated if the owner is innocent and the vehicle was not modified for smuggling.
- Can a vehicle used for the transportation of narcotics be confiscated if the owner is not involved in the crime?
- Does the hiring of a vehicle by an accused for criminal activity automatically justify the confiscation of the vehicle from its owner?
- Is the absence of a rival claimant a relevant factor in deciding an application for the return of a seized vehicle?
- Section 48, Control of Narcotic Substances Act 1997
- Section 9(c), Control of Narcotic Substances Act 1997
- Section 14, Control of Narcotic Substances Act 1997
- Section 15, Control of Narcotic Substances Act 1997
QALANDAR ALI KHAN, J.---This appeal by Mst. Saira Khan widow of late Rizwan under section 48 CNSA is directed against the judgment/order of learned Judge, Special Court (CNS), Peshawar, dated 31.03.2016, whereby, application of the petitioner for return of the vehicle (Honda Civic)
No.VV-155/Islamabad, was dismissed.
2. The aforementioned motorcar was taken into possession in case vide FIR No.05 dated 11.01.2014 under sections 9(c)/14/15 CNSA P.S. ANF, Peshawar, after recovery of seven packets of opium, each packet weighing one kilogram total, 7 kilograms, and 4 packets of charas, each packet weighing one kilogram, total 4 kgs chars Garda, from a secret cavity in the dish-board of the motorcar. At the time of recovery of the narcotics, Imran Dilawar son of Dilawar Masih was found on the driving seat of the motorcar, and along with cash amount and other articles, a receipt of Madina Rent-A- car, showing the said accused/appellant in the connected Cr.ANo.607-P/2014 having hired the car for self-driving, was also recovered from his possession. After facing trial before the learned Judge, Special Court (CNS), Peshawar, the said accused/appellant was convicted under section 9(c)
CNSA and awarded the sentence of life imprisonment with fine of Rs.200000/-. The accused/appellant preferred appeal, which has been partially accepted, and imprisonment for life reduced to five years R.I. and fine of Rs.200000/- also reduced to Rs.50,000/- and in default of payment of fine to further two months S.I.
3. The learned Judge, Special Court (CNS), Peshawar, dismissed application of the petitioner/appellant, mainly, on the ground that partnership of late Rizwan, predecessor of the petitioner/appellant, with the accused/appellant in the connected criminal appeal could not be ruled out; and, at the same time, passed order of confiscation of the vehicle, which was not made earlier on account of pendency of petition of late Rizwan for return of the vehicle on `superdari'.
4. Arguments of learned counsel for the appellant and learned AAG heard, and record perused.
5. The perusal of record would show that there is no rival claimant; and further at the time of arrest of Imran Dilawar, appellant in the connected appeal, after recovery of the contraband from the motorcar, a receipt of Madina Rent-A-Car, owned by Rizwan, late husband of the appellant, was also recovered from the accused/appellant in the connected appeal, showing hiring of the car by him for self driving. As such, with proof of driving of the car by accused/appellant, Imran Dilawar, at the relevant time, this fact was also clearly proved that the car belonged to Madina Rent-A-Car, owned by the late husband of the appellant. Moreover, it has also been proved on the record that Rizwan purchased the car from Azam Khan who had purchased the same through an open transfer letter from the registered owner, namely, Noorul-Amin. The said Noor-ul-Amin, a doctor by profession, also appeared as CW.3 and deposed about sale of the car by him.
6. Therefore, in view of evidence adduced in support of purchase of the car by Rizwan, late husband of the appellant, absence of rival claimant, and also proof of the fact that the cavity was not specially created in the vehicle, together with evidence proving the motorcar hired by the accused/appellant in the connected appeal from Madina Rent-A car, there was no justification for declining request of the appellant for return of the vehicle.
7. As such, the appeal is accepted; and while setting aside the impugned order dated 31.03.2016, the application of the appellant for return of the vehicle is accepted, accordingly.