2023 PLP 793 (MLD)

TARIQ MEHMOOD JAHANGIRI, J.

By this criminal appeal, the appellant Aqeel Mirza has assailed order dated 19.04.2022, passed by learned Additional Sessions Judge (East), Islamabad, whereby application filed by the appellant for the release of vehicle on superdari was dismissed.

2. Brief facts of the case are that spy information was received to the local police that two persons carrying huge quantity of Charas in a car bearing No.LEB-8667, are coming towards Athal village; police established a check post and tried to stop the vehicle at 02:50 a.m (midnight); instead of stopping, driver hit front side of the car with the wall and both the persons got off from the car and escaped in jungle taking benefit of dark at midnight; upon search, police has recovered charas weighing 7350 grams and one mobile phone of Nokia Company from the car.

3. Case was registered against unknown persons and vehicle along with narcotics was taken into possession.

4. The appellant applied for superdari of vehicle being bona fide owner which was dismissed by the Court of learned ASJ, Islamabad vide impugned order dated 19.04.2022, hence the instant appeal.

5. Learned counsel for the appellant, inter alia, contends that the appellant is bona fide owner of the vehicle; it was not in his knowledge that it will be used for carrying huge quantity of narcotics and has prayed that impugned order dated 19.04.2022, be set aside and car be handed over to the appellant on superdari. Learned counsel has relied upon the cases reported as 2010 SCMR 1181 and 2020 MLD 606.

6. Conversely, learned state counsel has controverted the arguments advanced by learned counsel for the appellant and states that huge quantity of contraband has been recovered; appellant is not entitled for superdari of the vehicle and has prayed that instant appeal is liable to be dismissed.

7. Arguments advanced by learned counsel for both the parties have been heard and record has been perused.

8. During the course of arguments, learned counsel for the appellant has taken different pleas/stances; he stated that the appellant sold his vehicle to Rustam Khan, who sold the same to Sabir Jan; police has verified the facts regarding selling of the vehicle to Rustam Khan but the purchaser did not pay the price of vehicle to the appellant, hence the same was returned to him; he subsequently, gave the car to one Muhammad Aslam on 19.02.2022, with whom he had business relationship. On the very next day the car was found involved in the instant case. Main stance of the appellant is that being bona fide registered owner, he is entitled for superdari of vehicle.

9. Law regarding release of vehicle on superdari in cases falling under the ambit of Control of Narcotic Substances Act, 1997, has been laid down by Hon'ble Supreme Court of Pakistan in a case titled as "Abdul Salam v. State" (2003 SCMR 246), that: "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 in consideration the facts of the case, in view of the judgment of this Court in the case of Haji Abdul Razzaq 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 possess 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." Reliance is placed on a case titled as "Amjad Ali Khan v. The State and others" (PLD 2020 SC 299), wherein the order passed by the trial Court, whereby superdari of the vehicle involved in transportation of narcotics was allowed, was set aside by the High Court and decision of High Court was upheld by the Hon'ble Supreme Court of Pakistan. Reliance is also placed on a case titled as "Abdul Salam v. The State" (2003 SCMR 246).

10. As far as the case law relied upon by learned counsel for the appellant is concerned, in both the judgments, the accused werd arrested red-handed while carrying contraband and owners of the vehicles claimed their superdari by producing sufficient evidence that vehicles were handed over to the accused on rent basis etc. but in the instant case the appellant has taken different self-contradictory pleas; no accused was apprehend while carrying huge quantity of contraband; learned counsel has not produced any convincing evidence or made arguments that the appellant had no knowledge of the occurrence.

11. As far as plea taken by the appellant that vehicle was handed over to one Muhammad Aslam one day prior to the occurrence is concerned, there is no receipt, document etc. available in this regard.

12. In view of above discussion, it is clearly established that prima-facie the appellant was in knowledge that his vehicle was being used for carrying huge quantity of narcotics, in the light of law laid down by the Hon'ble Supreme Court of Pakistan in judgments supra, the appellant is not entitled for superdari of the vehicle, hence instant criminal appeal stands dismissed being meritless. SA/223/Isl. Appeal dismissed.