--Vehicle was released by the trial Court on the basis of confessional statement given by the respondent by convicting him under Section 9 (c) Control of Narcotic Substances Act, 1997-

 PLJ 2022 Cr.C. 949 (DB)

Control of Narcotic Substances Act, 1997 (XXV of 1997)--

----Ss. 9(c)/15, 48--Conviction and sentence--Challenge to--Recovery of charas--The alleged Car No. LWG-1415 was given to Muhammad Rasheed--Three packets of charas (one kilogram each, total 3 kilograms) and one packet of opium (460 grams) underneath the driving seat--Trial Court convicted the respondent under Section 9 (c) of Control of Narcotic Substances Act, 1997--Vehicle was released by the trial Court on the basis of confessional statement given by the respondent by convicting him under Section 9 (c) Control of Narcotic Substances Act, 1997--Person seeking possession of such vehicle should not be an associate or a relative of the accused or an individual having nexus with the accused. The respondent was although the real brother, but was the owner prior to the commission of the offence.  [Pp. 951 & 953] A & B

Mr. Zafar Iqbal Chohan, Special Prosecutor for ANF for Appellant/State.

Mr. Naveed Afzal Basra, Advocate for Respondent.

Date of hearing: 27.10.2021.

 PLJ 2022 Cr.C. 949 (DB)
[Lahore High Court Lahore]
Present: Ali Baqar Najafi and Sardar Muhammad Sarfraz Dogar, JJ.
STATE--Appellant
versus
MUHAMMAD HAFEEZ--Respondent
Crl. A. No. 616 of 2013, decided on 27.10.2021.

Judgment

Ali Baqar Najafi, J.--Through this appeal under Section 48 of Control of Narcotic Substances Act, 1997, the order dated 19.04.2013 passed by the learned Judge, Special Court CNS, Lahore has been challenged whereby the Car No. LWG-1415 was given to Muhammad Rasheed, brother of respondent/convict subject to receipt and identification in case FIR No. 36 dated 25.10.2012 registered under Section 9 (c)/15 of CNSA, 1997 at Police Station RD ANF, Lahore.

3. Brief facts of the prosecution case against the respondent as narrated by Azhar Himesh, S.I. in complaint is that on 25.10.2012 high ups of ANF received a spy information that respondent, inter-provincial smuggler, with huge quantity of charas in order to sell to some specific customer would come out from his house situated at Samsani Pind, near Jamia Masjid Qadria, Johar Town, Lahore Upon this information, a raiding party comprised of the complainant alongwith other officials under the supervision of Major Tariq, D.D. reached at the stated place at 03:00 p.m. and started secret surveillance. At about 04:15 p.m. a person sitting in Suzuki Alto silver coloured car was seen coming out of the house who, upon the pointation of the informer, was apprehended disclosed his name as Muhammad Hafiz/respondent and got recovered three packets of charas (one kilogram each, total 3 kilograms) and one packet of opium (460 grams) underneath the driving seat. Out of the recovered charas, 10/10 grams from each packet was separated for chemical analysis and three sample parcels and one parcel of the remaining charas with seal “AZ” was made and taken into custody alongwith silver colour Suzuki Alto Car No. LWG-1415 bearing engine No. 199524 chassis No. 503538 vide recovery memo. Likewise, out of the recovered opium, 10 gram was separated from chemical analysis and one sample parcel and one parcel of the remaining opium with seal “AZ” was prepared and taken into possession through recovery memo. PKR. 15000/-, registration book of car No. LWG-1415 in the name of respondent No. 3, online cash deposit slips of Bank Al-Habib, Photocopy of I.D. Card of the respondent and mobile phone Nokia with sim recovered from personal possession of the respondent were also taken into custody vide recovery memo. Positive report of the chemical examiner dated 11.12.2012 was also made part of the challan vide order dated 21.01.2013. The charge was framed against the respondent on 12.12.2012 to which he pleaded not guilty and claimed trial whereafter the prosecution evidence was summoned whereupon examination-in-chief of Umar Draz/C (PW-1) was recorded on 01.03.2013. However, on 19.04.2013, respondent made a confessional statement admitting his guilt and placed him at the mercy of the Court, therefore, a notice under Section 342, Cr.P.C. was issued to him as to why he not be punished in accordance with law who stated that he is ready to face the consequences of the confessional statement, which was recorded separately, reproduced as under:

“I place myself at the mercy of the Court while admitting my guilt that 3 kgs charas and 460 gms opium were recovered from me in vehicle No. LWG-1415 at Samsani Pind, near Jamia Masjid, Johar Town, Lahore. I am ashamed over the despicable act. I am behind the bars and have learnt a sufficient lesson. I am making this confession on my own and will remain careful in future. I may be forgiven.

I am making the statement with my free will, without any inducement, pressure or under any legal advice.”

4. The learned trial Court convicted the respondent under Section 9(c) of Control of Narcotic Substances Act, 1997 and sentenced to rigorous imprisonment for 2½ years with fine of Rs. 15,000/-in default whereof to further undergo simple imprisonment for 30 days. Benefit of Section 382-B, Cr.P.C. was also extended to him.

5. We have heard learned counsel for the parties and perused the record with their able assistance.

6. After hearing the learned Special Prosecutor for ANF and the learned counsel for respondent, it is straightway observed that the vehicle was released by the learned trial Court on the basis of confessional statement given by the respondent by convicting him under Section 9 (c) Control of Narcotic Substances Act, 1997 and awarding sentence of rigorous imprisonment for 2 ½ years with fine of Rs. 15000/- i.e. less than 3 years which prompted the learned trial Court to release the vehicle and personal property belonging to him. The learned Special Prosecutor admitted before the trial Court that confessional statement given by the respondent would not be reciprocated by handing over of the vehicle. Obviously, the confessional statement was given with the understanding of the prosecution and the trial Court facilitates the accused and avoids wastage of un-necessary time. Reliance is placed upon Javed Hayat and another versus The State (PLD 2006 Lahore 167).

Relevant extract of para 8 is reproduced as under:

“….. We have already observed above a vehicle can be seized under the Control of Narcotic Substances Act, 1997 only in three situations, i.e. firstly, where it carrying unlawful narcotics alongwith some lawful narcotics, secondly, where it is a part of the assets derived from narcotic offences and, thirdly, where narcotics have been recovered from its secret chambers, cavities or compartments, etc. The second situation may not be relevant for the present purposes as forfeiture of assets and seizure and confiscation thereof for that purpose come about after conclusion of the case and, thus, there is hardly any question of interim custody or superdari involved in such a situation. The discussion made above shows that it is only in the first and third situations that a vehicle can be seized at the time of or as an immediate consequence of recovery of narcotic and, therefore, in no other situation a vehicle can be seized under the Control of Narcotic Substances Act, 1997 at such a stage. If in other situations a vehicle cannot even be seized to start with then the provisions of Section 74 of the Control of narcotic Substances Act, 1997 forbidding granting of interim custody/superdari would hardly come into play. The rigors of Section 74 have already been softened down by the Hon’ble Supreme Court of Pakistan in case of Abdul Salam v. The State 2003 SCMR 246 and by this Court in the case of Niaz Ullah v. The State 2002 P.Cr.L.J. 97 and through the discussion made above we have ventured to add a new dimension in this regard with reference to the provisions of the Control of Narcotic Substances Act, 1997 itself.”

7. This view and the judgment was upheld in Muhammad Hanif versus The State and others (2011 SCMR 1471), where in paragraph No. 3 it was held as under:

“….. 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 ….”

8. Reference can be given on Badshah Zada versus The State and others (2019 P.Cr.L.J. 1341), in this behalf and reliance is also placed upon Allah Ditta versus The State (2010 SCMR 1181). Relevant extract of para 8 is reproduced as under:

“8. The proviso of Section 32 of the Act, which deals with disposal of the conveyance used in commission of the crime at the conclusion of the trial, also provides as useful tip in interpreting the proviso of Section 74 of the Act. Section 32 empowers the trial Court to order confiscation of the vehicle used in trafficking of narcotics, with a proviso that the vehicle shall not be confiscated unless it is proved that the owner was aware that his vehicle was being used in the crime. Not only that an innocent owner of the vehicle is entitled to the return of the vehicle but the burden has been placed on the prosecution to establish that the owner had the knowledge of his vehicle being used in the crime…..”

9. Since the respondent had shown to the learned trial Court that he was the legal owner of the vehicle, its possession was rightly handed over to him after due verification. Reliance is placed upon Amjad Ali Khan versus The State and others (PLD 2020 Supreme Court 299), in which it was held that person seeking possession of such vehicle should not be an associate or a relative of the accused or an individual having nexus with the accused. The respondent was although the real brother, but was the owner prior to the commission of the offence and as per record had no knowledge that offence under CNSA, 1997 could be committed in that vehicle

11. In this view of the matter, this appeal is dismissed on merits.

(A.A.K.)          Appeal dismissed