ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Crl. Revision Appln. No.D-18 of 2011.

DATE

OF HEARING

ORDER WITH SIGNATURE OF HON’BLE JUDGE

FOR KATCHA PESHI.

23.1.2013.

Mr. Asif Ali Abdul Razak Soomro, advocate for applicant.

Mr. Ali Raza Pathan, State Counsel.

-.-.-.-.-.-

This is an application under section 435, 439 Read With Section 561-A, Cr.P.C filed by applicant Farooque Ahmed for the restoration of Truck bearing Registration No.LIT-3117.

The facts leading to filing of this Crl. Revision Application are that an application filed by the applicant under section 517, Cr.P.C before the trial Court for release of the vehicle bearing Registration No.LIT-3117, which was the subject matter of the Crime No.105/2006, Police Station Saddar, Jacobabad has been dismissed by impugned order dated 19.2.2011.

Learned counsel for the applicant submitted that the verification of the registration documents were sought from the Excise & Taxation Officer, Motor Registering Authority concerned through the order of this Court which verification was received and is available on record dated 15.8.2012. It confirms the registration of the said vehicle in the name of the applicant.

It is case of the applicant that vide judgment dated 13.11.2008, accused Muhammad Ramzan was acquitted of the charge, while accused Imdad Ali and Zafar Ali were convicted for an offence punishable under section 9(c) of Control of Narcotic Substances Act, 1997. Bering aggrieved of the said conviction, accused Imdad Ali and Zafar Ali filed an appeal being Crl. Appeal No.D-29/2008 and accordingly their appeal was allowed and the said appellants namely Imdad Ali and Zafar Ali were acquitted. The operative part of the judgment, whereby they were acquitted is reproduced as under:

“11. After hearing both the learned counsel for the parties, we have scanned the entire evidence. We have also found that the material contradictions and discrepancies pointed out by learned counsel for the appellants are available in the prosecution evidence. All the above discrepancies are creating doubt in the prosecution case. For extending benefit of doubt it is not necessary that there should be more circumstances, only one circumstance creating doubt in a prudent mind is sufficient to give benefit of such doubt to accused. We have found so many circumstances for extending benefit of doubt to the appellants. In the above circumstances, we are of the considered view that prosecution has failed to establish its case against the appellants beyond shadow of any reasonable doubt and the appellants have succeeded to make out a case for their acquittal and therefore, for the foregoing reasons we by extending benefit of doubt to appellants allowed this appeal by our short order dated 05.10.2010 and these are the reasons for the same.”

It is further contended by the learned counsel for the applicant that in terms of section 32 of Control of Narcotic Substances Act, 1997, no vehicle, vessel or other conveyance shall be liable to confiscation unless it is proved that the owner thereof knew that the offence was being or was to be committed. Learned counsel submits that throughout the proceedings before the trial Court it was never the case of the prosecution that the applicant was in knowledge of the offence that was likely to be committed, so as to take away the entitlement under the proviso of section 32 of the Control of Narcotic Substances Act, 1997.

Learned State Counsel on the other hand submitted that since the case has not been finally disposed of as there are two accused who have absconded, therefore, it cannot be handed over to the appellant under section 517, Cr.P.C, however, he conceded that it could be handed over in terms of section 516-A, Cr.P.C on superdari.

We have heard learned counsel for the applicant and perused the material available on record. It is the matter of fact that neither in the judgment passed by the Special Judge, CNS, Jacobabad nor in the Appeal No.D-29/2008 is the case of prosecution that the owner of the vehicle was involved or in knowledge that the offence was being, or was likely to be committed so as to disentitle the applicant in terms of provisio of section 32 of the Control of Narcotic Substances, Act, 1997. In terms of said proviso, the applicant was made entitled for the custody of the vehicle since his knowledge/involvement is not at all high lighted or referred to either before the trial in evidence or in the judgment of the trial Court as well as in the appellate Court. In view of such circumstance, the order dated 19^th February 2011, passed by the Special Court, CNS Jacobabad is set aside and the custody of the vehicle is restored to the applicant on superdari subject to his furnishing surety in the sum of Rs.300,000/- (Rupees. Three lacs only) to the satisfaction of the trial Court.

Judge

Panhwar/**