Sarap Khan S/O Abbas Khan vs The State Through Prosecutor General

Balochistan High Court · 2022 · Before Hon'ble Justice Shaukat Ali Rakhshani

Appellant Sarap Khan made an attempt before the Special Judge of the court constituted under Control of Narcotic Substances Act, 1997-Sessions Judge, Mastung ("Trial Court") for release of Hino Trailer-vehicle bearing Registration No.TLR-535 seized in a case vide FIR No.20/2021 by Levies Station Wali Khan for carrying 22 kgs charas, concealed in the spare tyres of the trailer-vehicle, driven by accused Nabi Khan but remained unsuccessful.

2. During pendency of the trial, the appellant filed an application under section 516-A of Criminal Procedure Code, 1898 (“CrPC”) for release of the aforesaid vehicle dated 05.10.2021, which was dismissed by the Trial Court vide order dated 28.10.2021. On 08.12.2021 the Trial Court on conclusion of the trial pronounced judgment, whereby accused Nabi Khan was convicted and sentenced for life imprisonment, whereas the Crl. Appeal No.617/2021 (2) Only for viewing purpose. Contact office for certified copy. aforesaid vehicle was ordered to be confiscated in favour of the state, hence this appeal.

3. Mr. Ali Ahmed Lehri, learned counsel for the appellant inter alia contended that the impugned judgment dated 08.12.2021 pertaining to confiscation of the vehicle is illegal and contrary to law. He argued that the appellant being owner of the vehicle had no knowledge about his vehicle being used for contraband trafficking, thus, without issuance of show cause to him, confiscation of his vehicle vide the impugned judgment is illegal, which is liable to be set-aside. Learned APG, adversely, resisted the appeal and urged that neither registration book pertaining to the ownership of the vehicle in question is recorded in the name of the appellant nor he is the last possessor, therefore, he is not entitled for release of the vehicle.

4. Heard. Record perused.

5. There are two provisions which deals with the release of the vehicle seized as a conveyance used in the trafficking of contrabands. Section 74 of Control of Narcotic Substances Act, 1997 (“Act of 1997”) relates to custody before conclusion of the case. Albeit, it is a provision, the connotation whereof is in negative as it states that the vehicle involved in the crime "shall not be given in custody" of accused or any associate or relative or any private individual till conclusion of Crl. Appeal No.617/2021 (3) Only for viewing purpose. Contact office for certified copy. the case except as provided in the 2nd proviso of clause (2) of section 33 of the Act ibid, whereas, section 32 clause (2) empowers the trial Court to confiscate the vehicle on conclusion of the trial provided no vehicle or conveyance shall be confiscated unless it is proved that owner thereof knew that the offence was being or was to be committed. In the case of ALLAH DITA V. THE STATE (2010 SCMR 1181), the bar contained under section 74 of the Act of 1997 was removed by enunciating a dicta that an innocent owner of a vehicle, who is unaware of the crime is entitled to the temporary custody of the vehicle, while placing reliance upon the case of ABDUL SALAM V. THE STATE (2003 SCMR 246).

6. Indisputably, the application for temporary custody of vehicle (superdari) was filed for release of the vehicle under section 516-A CrPC during the pendency of the trial, but the same was dismissed…

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