ABDUL SALAM Versus THE STATE

ORDER

IFTIKHAR MUHAMMAD CHAUDHRY, J.‑‑ ‑This petition for leave to appeal has been filed against the judgment dated 29th March, 2002 passed by Peshawar High Court, Peshawar whereby request made by petitioner for release of vehicle bearing No.0131‑08/2000‑N.‑W.F.P. on 'Supardagi' has been declined.

2. Precisely stating the facts of the case are that vide F.I.R. No. 13, dated 13th August, 2000, a case was registered at Police Station CID, Peshawar under section 9(c) of the Control of Narcotic Substances Act, 1997 (hereinafter referred to as 'the Act, 1997') on the basis of 'Murasla' sent by an A.S.‑I. of Police, statedly he had recovered a huge quantity of narcotics i.e. 57 K.gs. of 'Charas' from Liaqat Ali, who was arrested being its driver. Petitioner claims himself to be the owner of vehicle in question as such he approached the trial Court for its release on 'Superdagi'. Request so made by him was declined by the Additional Sessions Judge‑III. Peshawar vide order dated 3rd April, 2001. As such petitioner approached the learned High Court by invoking its jurisdiction under section 561‑A, Cr.P.C. but without success.

3. Learned counsel for the petitioner contended that petitioner had no knowledge about the narcotics, being transported in the vehicle in question, therefore, according to section 32 of the Act, 1997 he is entitled for temporary custody of the vehicle on 'Superdagi'.

It is to be noted that section 32 of the Act, 1997 deals with the final confiscation or release of the vehicle to the owner, after the conclusion of the trial, .if he had proved that he had no knowledge about the offence, which allegedly had been committed in the vehicle. As far as the question of knowledge is concerned, undisputedly it is required to be proved by leading evidence. In fact section 74 of the Act deals with regard to release of the vehicle temporarily on 'Superdagi', during the pendency of the trial, according to. which vehicle involved in the transportation of the narcotics would not be released during the trial, however, absolute bar cannot be created for the release of the vehicle, if as per section 32 of the Act, 1997, it A is, prima facie, established that owner had no knowledge that narcotics have been transported in his vehicle. Essentially, the trial Court can form such opinion after having taken into consideration the facts of the case, in view of the judgment of this Court in the case of Haji Abdul Razzak v. Pakistan through Secretary, Ministry of Finance and another (PLD 1974 SC 5). It is also to be noted that judicial discretion can be exercised for release of vehicle temporarily on 'Superdagi', in view of the well‑settled principle that if a Court can grant final relief; it also possesses inherent jurisdiction to grant temporary relief, pending proceedings before it, subject to, prima facie, fulfilling the conditions by the petitioner under the law for getting relief finally from the Court. Since in instant case there is not material available on record that petitioner had no knowledge about the narcotics, being transported in his vehicle, therefore, the principle discussed hereinabove is not attracted and under these circumstances the High Court had rightly declined to release the vehicle.

4. Learned counsel further contended that in instant case one Assistant Sub‑Inspector of Police got registered a case against the accused under section 9(c) of the Act, 1997, for which he was not authorized, as such entire proceedings pending before the trial Court are liable to be quashed.

5. Learned Deputy Attorney‑General, who appeared on Court notice, controverted to the stand taken by petitioner's counsel on the strength of the case of Mr. Abdul Latif v. G.M. Paracha (1981 SCMR 1101). It is contended that irregularity being pointed out, by itself, is neither sufficient to vitiate the trial nor for such reason petitioner is entitled for release of the vehicle.

It may be seen that under section 21 of the Act, 1997, a police officer not below the rank of Sub‑Inspector or equivalent authorized in this behalf, by the Federal Government or Provincial Government has jurisdiction to effect search, seizure and arrest without warrant of an accused involved in the commission of offence under the Act, 1997. But here the question is as to whether in view of the facts and circumstances of the instant case, challan of which had already been submitted against the accused under the provisions of section 9(c) of the Act, 1997, any prejudice has been caused to the petitioner, who is owner of the vehicle? Primarily, our answer is in negative, however, assuming that there was an irregularity in not registering the case by a competent officer, even then relief can be declined to the petitioner following the provisions of section 537, Cr.P.C. according to which if there is such irregularity which has not caused prejudice or injustice, it is curable. In this behalf, reference can be made to the observations made by this Court in the case of Altaf Hussain v. Abdul Samad and 3 others (2000 SCMR 1945). Relevant paras. therefrom are reproduced hereinbelow:‑‑

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11. Alternatively, assuming that the offence alleged fell under first paragraph of section 506, P.P.C. and thus non‑cognizable, in our view, in the absence of any serious prejudice caused to the accused/respondents, irregularity and defect of investigation, if any, stands cured under the provisions of section 537, Cr.P.C. There is a plethora of decided cases on the point and a reference to some of the cases would suffice at the moment.

12. In State v. Bashir (PLD 1997 SC 408) a Full Bench dealing with the power of C.I.A. Police, Karachi to investigate a cognizable offence expressed the view that subsection (2) of section 156, Cr.P.C. expressly provides that ' no proceedings of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate'. Ajmal Mian, J. (as his lordship then was) speaking for the Bench held that the violation of section 156(1) of the Cr.P.C. may not vitiate trial if no serious prejudice has been caused to the accused person concerned resulting in miscarriage of justice in view of the above subsection (2) of section 156, Cr.P.C., but it does not mean that the C.I.A. personnel should knowingly violate the above provision of the Cr.P.C. On the contrary, they are legally duty bound, to ensure the supremacy of law'. Earlier in Sadan v. State (PLD 1965 Bashed‑ul‑Jadid 12) a Division Bench of the erstwhile West Pakistan High Court expressed a similar view with regard to the effect of investigation of a non‑cognizable offence by a police officer without the permission of a Magistrate. This view was reiterated in 'Muhammad Aslam v. Martial Law Administrator, Zone 'C', 1980 PCr.LJ 97, a Division Bench of the Sindh High Court ‑dealing with the power of the Court to take cognizance of a police report in terms of section 190, Cr.P.C. and the restriction on the investigation of offences contemplated by section 155(2), Cr.P.C. went to the extent of holding that if cognizance is in fact taken on a police report, even then the same may be vitiated on account of infraction of any provisions relating to investigation, the result of the trial which follows it, cannot be set aside unless the illegality in the investigation could be shown to have resulted in grave miscarriage of justice. High Court further observed that it is well‑settled that an illegality committed in the course of investigation does not affect the competence and jurisdiction of the Court for trial. (See 1980 PCr.LJ 97). Same view was taken by Full Bench in Madras High Court in the Public Prosecutor v. Ratnayelu Chetty (ILR 49 Madras 525)."

Therefore, following the principle discussed in above judgments we are not inclined to entertain the arguments put forward by the learned counsel for petitioner in this behalf.

No other point was argued by the learned counsel for petitioner.

Thus for the foregoing reasons, we see no force in this petition, as such same is dismissed and leave declined.

N.H.Q./A‑343/S Leave refused.