2009 P Cr.
L J 254
[Karachi]
Before Ali Sain Dino Metlo and Khawaja Naveed Ahmed, JJ
IMTIAZ JAWED----Applicant
Versus
THE STATE----Respondent
Criminal Revisions Nos.70 and 71 of 2008, decided on 11th September, 2008.
(a) Criminal Procedure Code (V of 1898)---
----Ss. 516-A & 439--Control of Narcotic Substances Act (XXV of 1997), Ss.7/9(c), 32, 21, 22 & 74--
Custody of car on Superdari---Any vehicle used in carrying a narcotic drug was liable to confiscation,
except where its owner did not know that the offence was being or was to be committed, as provided
under section 32 of the Control of Narcotic Substances Act, 1997, and Ss.21 & 22 thereof had authorized
seizure of such vehicle---Proviso to S.74 of the said Act had barred the giving of a vehicle used in
transportation of a narcotic drug to the accused or any of his associates or relatives or any private
individual, till the conclusion of the case---Presently, material available on record had overwhelmingly
showed involvement of accused who was caught red handed in the commission of the offence, while
transporting huge quantity of heroin in his car and he could not be said to have no knowledge about the
car being used in the transportation of heroin---Order of Trial Court refusing to give custody of the car to
the accused was upheld being unexceptionable---Revision petition had no merits and was dismissed
accordingly.
Mst. Shaheen Begum v. S.H.O. (ACLC) and others 2005 MLD 176; Muhammad Akmal Shah v. D.S.P. and
others 2004 PCr.LJ 1; Mahboob Khan v. The State 2003 YLR 791 and Abdul Salam v. The State 2003 SCMR
246 distinguished.
(b) Control of Narcotic Substances Act (XXV of 1997)---
----Ss. 7/9(c) & 37---Defreezing of Bank account--Section 37 of the Control of Narcotic Substances Act,
1997, had empowered the Trial Court to order the freezing of the assets of the accused, his relatives and
associates, if reasonable grounds appeared to believe that he had committed the offence punishable
under the said Act---Paramount consideration for freezing of the assets of the accused depended on the
existence of reasonable grounds for believing him guilty of the offence and overwhelming grounds were
present in this regard---Impugned order refusing to defreeze the Bank account of accused did not call
for any interference---Revision petition was dismissed accordingly.
I. A. Hashmi for Applicant.
S. Ashfaq Hussain Rizvi, Special Prosecutor, A.N.F. for the State.
JUDGMENT
ALI SAIN DINO METLO, J.--- Heard Messrs I.A. Hashmi, Advocate for the applicant and S. Ashfaq Hussain
Rizvi, Special Prosecutor, A.N.F.
2. Applicant Imtiaz Jawed, facing charge of transporting 85 kilograms of heroin in a car, after his release
on bail on medical grounds, seeks custody of his car used in the transportation of the heroin and
defreezing of his bank account freezed under section 37 of the Control of Narcotic Substances Act, 1997.
3. According to the prosecution, on 16-1-2007, at about 1900 hours, a team of Anti-Narcotic Force
apprehended the applicant at Kharkar Chowrangi, Clifton, Karachi and secured 85 kilograms of heroin
from his car, which he was himself driving.
4. He seeks custody of the car and defreezing of his bank account mainly on the ground that he cannot
be deprived of his property even temporarily.
5. The trial Court refused to give him the car and also refused to defreeze his bank account pending
decision of the case for the reason that there were reasonable grounds to believe that he was involved
in drug trafficking.
7. There is no force in the contention of the learned counsel for the applicant that the prosecution story
is false and the heroin has been planted upon the applicant. This defence of the applicant, in support of
which there is no material on record, cannot be accepted at this stage. Presently, the material, which is
available on record, overwhelmingly shows applicant's involvement in the commission of the offence.
He is shown to have been caught red handed while transporting the huge quantity of heroin in his car. In
such circumstances, it cannot be said that he had no knowledge about the car being used in the
transportation of heroin.
8. Moreover, in the proviso to section 74 (ibid) it has been clearly mentioned that notwithstanding
anything contained in section 523 or any other provision of the Code of Criminal Procedure, 1898, any
conveyance used in transport of a narcotic drug shall not be given to the accused or any other person till
the conclusion of the case.
9. The precedents of the cases of Mst. Shaheen Begum v. S.H.O. (ACLC) and others reported in 2005
MLD 176 (Karachi), Muhammad Akmal Shah v. D.S.P. and others reported in 2004 PCr.LJ 1 (Lahore),
Mahboob Khan v. The State reported in 2003 YLR 791 and Abdul Salam v. The State reported in 2003
SCMR 246, cited by the learned counsel for the applicant are of no help to the applicant. In the first
three cases, the vehicles were not used in the commission of any crime. There was simply dispute about
their ownership between private parties. In the last case, which pertains to the use of vehicle in the
transport of Charas, the Supreme Court refused to give the vehicle to its owner, who claimed custody on
the ground that he had no knowledge about its illicit use by the driver, observing that there was no
material available on record to show that he had no knowledge.
10. As regards applicant's bank account, section 19 (ibid) provides that "where the Special Court finds a
person guilty of an offence punishable under this Act and is sentenced to imprisonment for a term
exceeding three years, the Court shall also order that his assets derivable from trafficking in narcotic
substances shall stand forfeited to the Federal Government, unless it is satisfied, for which the burden of
proof shall rest on the accused that they or any part thereof, have not been so acquired", And section 37
(ibid) provides that "where Special Court trying an offence punishable under this Act is satisfied that
there appear reasonable grounds for believing that the accused has committed such an offence, it may
order the freezing of the assets of the accused, his relatives and associates.
11. Besides the Special Court, the section enjoins the Director-General and the officers authorized under
section 21 (ibid) to trace, identify and freeze assets of an accused during the investigation or trial for the
purpose of forfeiture by the Special Court. However, the Special Court may confirm, rescind or vary such
freezing. The Special Court, like all other Courts, is required to exercise the discretion judiciously. As is
clear from the provision itself, the paramount consideration for the purpose of confirming or rescinding
the freezing of the assets will be existence or otherwise of reasonable grounds for believing the accused
guilty of the offence. As mentioned above, in the present case, there are overwhelming grounds to
believe the applicant guilty of the offence.
12. There is also no force in the argument of the learned counsel for the applicant that the trial Court
while refusing to defreeze the applicant's bank account has given observations which virtually amount
to its confiscation. As a matter of fact the trial Court, while highlighting the consequences of drug
trafficking and its bad effects on the society, has clearly said that the applicant's request would be
considered at the time of final judgment.
13. In view of the above legal position and the facts and circumstances of the case, the orders of the trial
Court refusing to give custody of the vehicle to the applicant and refusing to defreeze his bank account,
pending trial, being unexceptionable, do not call for any interference and, therefore, the revisions, being
meritless, are dismissed along with the listed applications.
N.H.Q./I-22/K Petition dismissed.
