MUJEEB UR REHMAN Versus State
ALI BAIG, J. ---These criminal revision petitions under section 439 read with section 516-A, Cr.P.C. are directed against the impugned judgments/orders dated 06-08-019 and 04-09-2019, passed by the learned Sessions Judge/ Special Judge C.N.S.A. Gilgit, whereby, the learned Sessions Judge Gilgit has dismissed two applications (Cr. Misc. No.40/2019, titled "Mujeeb-ur-Rehman v. State" and Cr. Misc. No.46/2019, titled "Bakht Zaman v. State") filed by the present petitioners under section 516-A, Cr.P.C. for superdari/custody of two vehicles, one Truck bearing Registration No.Peshawar-K-5682, Engine No.6BDL-399172, Chasis No.3500687 detained by police at Police Station Jutial Gilgit, in case FIR No.96/2019 and the other vehicle Toyota Hilux bearing Registration No.Peshawar-J-6865, Engine No.2L2246120, Chasis No.LN85-0031675 detained by police at Police Station Jutial Gilgit, in case FIR No.105/2019.
2. Succinctly, facts giving rise to the filing of criminal revision petition (Cr. Rev. No.19/2019) are that on 22-07-19, at 12:30 a.m., on spy information, the SHO Police Station Jutial and his staff intercepted the vehicle Truck bearing Registration No.Peshawar-K-5682, Engine No.6BDL-399172, Chasis No.3500687 at Police Check Post Jutial Gilgit. After thorough search, charas weighing 24kg was recovered from the roof top of said vehicle containing 24 packets in presence of marginal witnesses. Consequently, a criminal case vide FIR No.96/2019 was registered under section 9, C.N.S.A., 1997 at Police Station Jutial Gilgit and two accused persons, namely Arshad (driver) son of Mujeeb-ur-Rehman and Ehtesham-ul-Haq son of Habib-un-Nabi, residents of Mira Besham, KPK were arrested by police of Police Station Jutial Gilgit. While the facts giving rise to the filing of criminal revision petition (Cr. Rev. No.23/2019) are that on 10-08-2019, at 20:30 hours, on spy information, the SHO Police Station Jutial and his staff intercepted the vehicle Toyota Hilux bearing Registration No.NWFP-Peshawar-J-6865 at Police Check Post Jutial Gilgit. After thorough search, charas weighing 29kg was recovered from the roof top of said vehicle containing 23 packets in presence of marginal witnesses. Consequently, a criminal case vide FIR No.105/2019 was registered under section 9, C.N.S.A., 1997 at Police Station Jutial Gilgit and two accused persons, namely Kamran (driver) son of Lal Zada and Anwar Badshah son of Shah Pasand, residents of Mingora Swat KPK were arrested by police of Police Station Jutial Gilgit.
3. The petitioners of both the above referred criminal revision petitions being owners of aforesaid vehicles had filed separate applications under section 516-A, Cr.P.C. for superdari of their concerned vehicles in question in the court of Special Judge CNSA/Sessions Judge Gilgit which were dismissed by the learned Sessions Judge Gilgit vide separate impugned judgments/orders dated 06-08-2019 and 04-09-2019, hence these criminal revision petitions.
4. The learned counsel appearing on behalf of the petitioners have contended that the petitioners are real owners of the vehicles in question which have been registered in their names. The learned counsel for the petitioners have further argued that the present petitioners of both the above referred criminal revision petitions are not involved in the case FIR No.96/2019 and FIR No.105/2019, registered under section 9 of CNSA 1997 at Police Station Jutial Gilgit and there is no any other rival claimants for custody/superdari of the vehicles in question. Concluding their arguments, the learned counsel for the petitioners have argued that the impugned orders passed by the learned Sessions Judge/Special Judge CNSA is against the facts and basic principle of law and equity, hence the impugned orders of the learned court below are not maintainable and liable to be set aside. In support of their contentions, the learned counsel for the petitioners have relied upon the following reported judgments of superior courts:-
1. 2007 MLD 1372.
2. 2014 PCr.LJ 989.
3. 2002 PCr.LJ 97.
On the other hand, the learned Deputy Advocate General vehemently opposed these revision petitions and defended the impugned judgments/orders passed by the learned courts below by contending that the vehicles in question were used in commission of offence and section 74 of C.N.S.A., 1997 places a bar that any vehicle used in commission of offence shall not be given to any accused or any other private individual on superdari, therefore, these criminal revision petitions filed by the present petitioners are not maintainable and liable to be dismissed.
5. We have given our thoughtful consideration to the submissions made by the learned counsel for the parties and with their able assistance gone through the available record.
6. It is an admitted position that the present petitioners, namely Mujeeb-ur-Rehman and Bakht Zaman, are real owners of the vehicles in question. In this connection, they produced original registration books of the said vehicles before this Court during arguments and have also annexed copies of registration book with these revision petitions. There is no any other rival claimant for superdari of the vehicles in question and neither the petitioners are involved in the aforesaid criminal cases nor they had knowledge regarding transportation of charas in their vehicles by their drivers/accused named above.
7. The argument of the learned Deputy Advocate General is that section 74 of C.N.S.A., 1997 places embargo upon releasing the vehicle which is used in commission of an offence to the accused, or any of his associate or any private individual till final disposal of case. But from perusal of aforesaid provisions of C.N.S.A., 1997, it appears that no embargo has been placed that such a vehicle shall not be given/released to the bona fide owner of the vehicle who is neither accused in the case nor is associate of the actual accused. We are of the view that the word private individual used in the aforesaid section of C.N.S.A., 1997 does not include the owners of the vehicles. 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 or owner should have been used. Our this view is fortified by the view expressed by the Hon'ble Division Bench of Peshawar High Court in case reported in PLD 2002 Pesh 87 and Division Bench of Lahore High Court in case reported in 2007 MLD 1372.
8. Moreover, detention of the aforesaid vehicles in Police Station Jutial for indefinite period shall serve no useful purpose except decay of colour and parts of said vehicles, as the vehicles have been kept/detained in an open space without any cover or shadow.
9. Pursuant to above detailed discussion, we are inclined to allow these criminal revision petitions. Consequently, the impugned orders dated 06-08-2019 and 04-09-2019, passed by the learned Special Judge CNSA/Session Judge Gilgit are set aside and the vehicles in question be released to the petitioners on superdari subject to their furnishing surety bonds in the sum of Rs.500,000/- with two sureties each in the like amount to the satisfaction of the learned trial court. The petitioners are also directed to produce the vehicles in question in the trial court as and when required for the purpose of trial. These criminal revision petitions are disposed of accordingly. File.
SA/174/GB Order accordingly.