2007 P Cr. L J 755_ On the point of Superdari

2007 P Cr. L J 755

[Lahore]

Before Maulvi Anwarul Haq and Abdul Shakoor Paracha, JJ

ASKARI LEASING LIMITED through Branch Manager----Petitioner

Versus

THE STATE-Respondent

Criminal Revision No.36 of 2005, heard, on 11th January, 2007.

(a) Criminal Procedure Code (V of 1898)---

----Ss. 516-A & 439---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---"Superdari" of the vehicle refused by Sessions Court to the petitioners---Validity---Vehicle admittedly vested in the petitioner-Company which had been leased out to the accused and from which offending narcotic had been recovered and the same was taken over by the police---No allegation was available on record that the petitioner-Company was aware of the said user of the vehicle leased out by it to the accused as a financial institution---Even no suspicion had been expressed on the record against any officer of the petitioner-Company in this behalf---No investigation had been conducted on such lines in the case---Petitioner who was admittedly the owner of the vehicle, thus, was entitled to its release on "Superdari"---Impugned order of Sessions Court was set aside accordingly and the vehicle was ordered to be released to the petitioner on "Superdari"---Revision petition was consequently accepted.

Muhammad Rafiq v. The State 2006 YLR 1732; Abdul Salam v. The State 2003 SCMR 246 and Haji Abdul Razak v. Pakistan through Secretary, Ministry of Finance and another PLD 1974 SC 5 ref.

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

----S. 74---Criminal Procedure Code (V of 1898), S.516-A---Release of the vehicle temporarily on "Superdari" during the pendency of trial---Extent and scope---Absolute bar cannot be created for the release of the vehicle temporarily on "Superdari" during the pendency of the trial, if as per S.32 of the Control of Narcotic Substances Act, 1997, its owner is prima facie established to have no knowledge of the narcotics having been transported in his vehicle---Trial Court can essentially form such opinion after taking into consideration the facts of the case.

Abdul Salam v. The State 2003 SCMR 246 and Haji Abdul Razak v. Pakistan through Secretary, Ministry of Finance and another PLD 1974 SC 5 ref.

(c) Criminal Procedure Code (V of 1898)---

----S. 516-A---Control of Narcotic Substances Act (XXV of 1997), S.74---Temporary release of vehicle on "Superdari"---Jurisdiction of Court---Principles---Judicial discretion can be exercised for release of vehicle temporarily on "Superdari" in view of well-settled principle that if a Court can grant final relief, it also possesses inherent jurisdiction to grant temporary relief pending proceedings before it, subject to prima facie fulfilling the conditions by the petitioner under the law for getting relief finally from the Court.

Haji Abdul Razak v. Pakistan through Secretary, Ministry of Finance and another PLD 1974 SC 5 ref.
 
Rashid Sikandar Khawaja for Petitioner.

Sh. Muhammad Munir, Dy. P.G. for the State.

Date of hearing: 11th January, 2007.


JUDGMENT

MAULVI ANWARUL HAQ, J.---The petitioner is stated to be a Public Limited Company and a financial institution. A motor vehicle described in para.2 of this criminal revision was leased out to one Tayyab Mukhtar. This vehicle was taken over by the police of Police Station Attock Khurd in the matter of case F.I.R. No.184 dated 24-6-2003 under section 9(c) of the C.N.S.A., 1997. The petitioner filed an application for the Superdari of the said vehicle in terms of section 516-A, Cr.P.C. which has been dismissed by a learned Additional Sessions Judge, Attock, on 11-11-2004.

2. Learned counsel for the petitioner contents that the vehicle could be taken over and confiscated only if there is evidence that the petitioner 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. He relies on the case of Muhammad Rafiq v. The State 2006 YLR 1732. The learned D.P.G. opposes the criminal revision relying upon the case of Abdul Salam v. The State 2003 SCMR 246.

3. We have gone through the copies of the records. There is no denial that the vehicle vests in the petitioner-Company and had been leased out to the accused person in the said case and it was from this vehicle that the offending narcotic was recovered. So far as the legal position is concerned, we may reproduce the following excerpt from the judgment of the Honourable Chief Justice of Pakistan being relied by the learned State counsel in the said case of Abdul Salam:--

"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 he had proved that he had no knowledge about the offence, which allegedly had been committed in the vehicle. As far as the question of knowledge is concerned, undisputedly it is required to be proved by leading evidence. In fact section 74 of the Act deals with regard to release of the vehicle temporarily on 'Superdari', during the pendency 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 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, in view of the judgment of this Court in the case of Haji Abdul Razzak v. Pakistan through Secretary, Ministry of Finance and another PLD 1974 SC 5. It is also to be noted that judicial discretion can be exercised for 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 temporary relief, pending proceedings before it, subject to, prima facie, fulfilling the conditions by the petitioner under the law for getting relief finally from the Court. Since in instant case there is no material available on record that petitioner had no knowledge about the narcotics, being transported in his vehicle, therefore, the principle discussed hereinabove is not attracted and under these circumstances the High Court had rightly declined to release the vehicle."

4. Hearing in this case commenced on 8-1-2007 when we called upon the learned D.P.G. to seek instructions and state as to whether any suspicion has been expressed that the petitioner had knowledge that the vehicle is to be used for the commission of the said offence or that any investigation had been conducted on the said lines and further whether any evidence has been collected. The learned D.P.G. has today stated that there is no allegation on record that the petitioner was aware of the said user of the vehicle leased out by it to the accused person as a financial institution. On the record, no suspicion had been expressed against any officer of the petitioner-Company in this behalf as well and, of course no investigation had been conducted on the said lines.

5. In this view of the matter, following the said dictum of the Honourable Supreme Court upon reading of sections 32 and 74 of the C.N.S.A., 1997, we do find that the petitioner who is admittedly the owner of the vehicle is entitled to its release. The criminal revision is accordingly allowed. The impugned order of the learned Additional Sessions Judge, Attock, is set aside and the vehicle is ordered to be released to the petitioner on Superdari subject to furnishing of a bond in the sum of Rs.3,00,000 (Rupees three lacs) to the satisfaction of the S.H.O./Investigating officer concerned and furnishing of an undertaking that the vehicle shall be produced in Court as and when ordered.

N.H.Q./A-17/L                                                                                    Petition allowed.