case law on 516 A

2013 Y L R 1626

[Peshawar]

Before Yahya Afridi and Assadullah Khan Chamkani, JJ

AMIN NAWAZ BLOUCH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.381-P of 2012, decided on 13th August, 2012.

Criminal Procedure Code (V of 1898)---

----S. 516-A---Control of Narcotic Substances Act (XXV of 1997), Ss. 32 & 74---Superdari of

vehicle---Custody of vehicle used in transportation of narcotic---Scope---Narcotics transported

without knowledge of owner of vehicle---Effect---Bus in question had been taken into possession

by the police after charas was recovered from it, which was found in a box underneath the

driver's seat; Bus was being driven by an employee of the appellant---Appellant moved

application before Trial Court for superdari of bus , but same was dismissed---Appellant

contended that he had purchased the bus on lease from a bank on finance facility; that he had

paid 55 lease instalments out of a total of 60; that the bus was being used for public transport and

not for carriage of narcotics as recovery had not been made from any secret cavity but from a

box underneath the driver's seat; that driver of bus was exclusively responsible for the illegal act;

that he (owner) was neither present in the bus nor could be tagged with the alleged recovery, and

that bus was parked in the police station, where it was deteriorating day by day---Validity---

Appellant had paid major portion of the instalments to the Bank---Record did not show that

vehicle was used in commission of the crime with the knowledge of the appellant---Although

section 74 of Control of Narcotic Substances Act, 1997, prohibited grant of custody of vehicle

used in export, import or transportation of narcotic substance to the accused or any of his

associates or relatives or any private individual, till the conclusion of the case but said section

could not be extended to cover an owner of vehicle who had no hand or involvement in the

crime, as S.32 of the same Act, protected the rights of an owner who had no conscious hand in

the commission of the crime---Retention of vehicle in police custody for an indefinite period

would serve no useful purpose---Perusal of documents on record showed that appellant was

owner of vehicle at least in the absence of any rival claimant---Appeal was allowed, order of

Trial Court was set-aside and bus was handed over to the appellant with a direction to ensure

production of bus as and when required by the Trial Court.

Mian Abdul Ghaffar for Appellant.

Zahid Yousaf Qureshi, A.A.-G. for the State.

Date of hearing: 13th August, 2012.

JUDGMENT

ASSADULLAH KHAN CHAMKANI, J.---Impugned herein is the order dated 16-7-2012

of learned Additional Sessions Judge-XIII, Peshawar whereby the application of the appellant for

superdari of bus bearing Registration No.MNS/3475 was dismissed.

2. Ghaffar Ali Khan, S.H.O. Police Station Agha Mir Jani Shah along with other police

personnel laid nakabandi at the crime spot when received information regarding smuggling of

narcotics to Punjab through bus bearing Registration No.MNS/3475. In the meanwhile the said

bus emerged on the scene coming from Hayatabad, which was signalled to stop. On inquiry, the

driver disclosed his name as Amanullah son of Muhammad Akram Khan while on search of the

vehicle from the box made underneath the driver seat five packets containing chars each packet

12 grams total six KGs were recovered. Necessary samples were sent to FSL for chemical

analysis while the remaining bulk was sealed into separate parcel, hence the accused was

arrested and the bus was taken into possession resulting into registration of the F.I.R.

3. The plea of the appellant is that he had purchased the aforementioned vehicle on lease

from Bank Al-Falah Limited (Islamic Banking Division) under Ijara Finance Facility of Rs.3.250

millions vide contract/agreement dated 15-11-2007 and its payment was agreed to be made in 60

instalments out of which he has made 55 instalments up to 25-6-2012 vide Ijara Schedule dated

9-7-2012. The bus was registered in the name of Bank Al-Falah Limited by MRA Multan vide

Certificate dated 18-7-2008 and the appellant was authorized to ply the same within the limits of

Pakistan vide Certificate dated 9-7-2012 till 31-1-2013 in which the last instalment is to be made

by him. He plied the bus from Multan -- Rawalpindi -- Peshawar and back. The accused

Amanullah was employed as driver of the bus when the same was intercepted by the police

recovering from the box underneath the driver seat 6 KGs of charas, hence the accused was

arrested and the bus was taken into possession.

On receipt of information regarding the aforesaid incident on the part of driver, the

appellant submitted an application for superdari of the bus, which was dismissed by learned

Additional Sessions Judge-XIII, Peshawar vide order dated 16-7-2012, hence the instant

appeal.

4. Learned counsel for appellant contended that the bus was a public transport, which was

not being used exclusively for carriage of contraband narcotics nor the seized narcotics was

recovered from any secret cavity specially designed for the purpose therein, thus, the alleged

recovery was effected from a box beneath the seat of the driver, who was present in the bus as

such he was solely responsible for his illegal act. Further submitted that the appellant being

owner of the bus was neither present in the bus nor can be tagged with the alleged recovery,

hence he cannot be penalized for the individual act and action on the part of driver of a bus,

which was being plied as public transport. He was also of the view that the bus is registered in

the name of Bank Al-Falah Limited (Islamic Banking Division) and leased to Rind Balouch

Transport Company Multan owned by the appellant under Ijara Finance Facility on instalments,

which is evident from Ijara Facility Agreement, Ijara Schedule of payment, Certificate of

Registration and Certificate issued by the Bank. He maintained that the bus is parked in the

Police Station since 5-7-2012 and is deteriorating day by day and if the same is not delivered to

the appellant, he shall suffer irreparable loss, hence the impugned order is bad in law, which

requires reversal.

5. The learned A.A.-G. while opposing this appeal contended that the bus being a case

property and if the same is delivered to the appellant, it will affect the case of the prosecution

and that huge quantity of narcotics was recovered from a box beneath the driver seat, moreso,

when there is a barring provision contained in section 74 of the Control of Narcotic Substances

Act, 1997, therefore, the appellant is not entitled to the return of the vehicle on 'superdari'.

We have heard learned counsel for the parties and gone through the record available

before us.

6. Admittedly, the bus involved in this appeal was registered in the name of Bank Al-Falah

Limited (Islamic Banking Division) by Motor Registration Authority, Multan vide Certificate

dated 18-7-2008. The same was purchased by appellant on lease under Ijara Finance Facility of

Rs.3.250 millions vide contract/agreement dated 15-11-2007 and its payment was agreed to be

made in 60 monthly installments out of which he has made payment of 55 installments up to 25-

6-2012 vide Ijara Schedule dated 9-7-2012. No doubt, the appellant is not a registered owner of

the bus in question but after its purchase from the original owner i.e. Bank AlFalah Limited

(Islamic Banking Division) under Ijarah Finance Agreement, he has been authorized by it to

drive the same within the limits of Pakistan up till January 31, 2012 vide Certificate dated 9-7-

2012. Moreover, the appellant has paid major portion of installments to the Bank Alfalah. It is

pointed out that Amanullah accused was serving as a driver in the Company of the appellant

since last about 18 years and was earning livelihood. A perusal of the record would indicate that

so far there is nothing on record to show that the vehicle was used in the commission of the

crime with the knowledge of the appellant. No doubt section 74 of the Act prohibits the grant of

custody of the vehicle used in the export, import or transportation of narcotic substance to the

accused or any of his associates or relatives or any private individual till the conclusion of the

case but the application of this provision by no canon of interpretation can be extended to cover

an owner who has no hand or involvement in the crime, as it cannot be construed independently

of the provision contained in section 32 of the Act, which protects the right of the owner, who

has no conscious hand in the commission of the crime. Apart from this, retention of a vehicle in

police custody for an indefinite period would also serve no useful purpose. A perusal of the

documents placed on file would, prima facie, show that appellant is owner of the vehicle at least

in the absence of any rival claimant. Judicial discretion can also be exercised for release of the

vehicle on `superdari' in view of the principle that if a court can grant final relief, it also possess

inherent jurisdiction to grant temporary relief pending proceedings before it subject to prima

facie fulfilling condition by the appellant under the law from getting relief finally from the court.

For the aforementioned reasons this appeal is allowed, the impugned order dated 16-7-

2012 passed by learned Additional Sessions Judge-XIII, Peshawar is set aside and the bus

bearing Registration No.MNS/3475 be handed over to the appellant on furnishing bond/security

in the sum of Rs.50,00,000 with two sureties each in the like amount to the satisfaction of

learned trial Court. However, the vehicle shall be ensured to be produced as and when required

by the learned trial Court.

This order will not prejudice the right of a rival claimant, if any, with a better title.

MWA/269/P Appeal allowed.