2013 PLP 1626 (YLR)

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.