ALLAH BAKHSH vs The STATE and another

HAFIZ SHAHID NADEEM KAHLOON, J.---Through this criminal appeal, the appellant has challenged the legality of order dated 17.02.2015 passed by learned Addl: Sessions Judge, Rojhan, whereby the application filed by the appLant for superdari of the vehicle in-question used in the occurrence was dismissed.

2. The brief facts of the case are that a car bearing registration No.AFE-411 Sindh took into custody by the police in a case FIR No.75-2014 dated 07.12.2014 registered under Section 9(c) Control of Narcotic Substances Act, 1997 at P.S. Goth Mazari. The appellant being owner of said vehicle moved a petition for its superdari before learned Addl: Sessions Judge, who after perusing the same and hearing the parties rejected the same vide impugned order dated 17.02.2015. Hence, the instant appeal.

2A. Learned counsel for the appellant contends that the appellant is sole owner of vehicle in- question and registration of the same is in his name. There is no other claimant of the vehicle in- question. It is further submitted that the appellant had no knowledge that his vehicle would be used in the occurrence and he had only took fare from the accused-person being traveler. It is further submitted that motor car could be taken over and confiscated only if there is evidence that the appellant is an associate of the accused or that he had advance knowledge that the vehicle would be used for the commission of an offence under the said law and if the said motor car remained in the custody of the police, its condition will be deteriorated and there is apprehension of its damage as the vehicle is standing in open sky in the police station.

3. Learned law officer appearing on behalf of ANF opposed the appeal on the ground that the said motor car was used for the transportation of the narcotic substance of heavy quantity which is heinous offence, hence, this appeal may be dismissed.

4. Arguments heard and record Perused.

5. The documents placed with the appeal would prima facie show that the appellant is the sole owner of the vehicle in question in the absence of any rival claimant. Even otherwise, the retention of the vehicle in police custody for an indefinite period without there being any progress in the case even after the elapse of more than 5/6 months, would mean nothing but complete decay, deterioration and damage thereto which too cannot be allowed under the provision of law. It is to be noted that Section 32 of the Act, 1997 deals with the final confiscation or release of the vehicle to the owner, after the conclusion of the trial; if it was proved that he had no knowledge about the offence, which allegedly had been committed in the vehicle.

6. As far as the question of knowledge is concerned, undisputed it is required to be proved by leading evidence. In fact Section 74 of the Act, 1997 deals with regard to release of the vehicle temporarily on `Superdarr during the tendency of the trial, according to which vehicle involved in the transportation of the narcotics would not be released during the trial. However, absolute bar cannot be created for the release of the vehicle, if as per Section 32 of the Act, 1997, it is, prima facie, established that owner (appellant)had no knowledge that narcotics have been transported in his vehicle. Essentially, the trial Court can form such opinion after having taken into consideration the facts of the case as per law laid down by the August Supreme Court of Pakistan in the case reported as "Haji Abdul Razzak v. Pakistan through Secretary Ministry of Finance and another" (PLD 1974 SC 5). It has also been observed by this Court that judicial discretion can be exercised for the release of vehicle temporarily on `Superdari' in view of the well-settled principle that if a Court can grant final relief, it also possesses inherent jurisdiction to grant the temporary relief, pending proceedings before it, subject to, prima facie, fulfilling the conditions by the appellant under the law for getting relief finally from the Court. Since in instant case there is no material available on record that appellant had any knowledge about the narcotics, being transported in his motor car, therefore, the principle discussed hereinabove is fully attracted in the instant case. Reliance in this regard is placed on "Allah Ditta v. The State" (2010 SCM R 1181) and "Abdul Salam v. The State" (2003 SCM R.246).

7. In this view of the matter, adopting the said dictum of the Honourable Supreme Court upon reading of Sections 32 and 74 of the Control of' Narcotic Substances Act, 1997, we are of the considered view that the appellant who is admittedly the sole owner of the motor car is entitled to its release.

8. As a sequel and crux of our foregoing observations is that the instant appeal is allowed and the impugned order dated 17.02.2015 passed by the learned Addl: Sessions Judge, Rojhan is set aside and the motor car is ordered to be released and handed over to the appellant on Superdari subject to furnishing surety of Rs. 5,00,000/- (Rupees five lacs only) to the satisfaction of the SHO/Investigating Officer concerned and furnishing of an undertaking that the vehicle shall be produced in Court as and when ordered.