' TANVIR BASHIR ANSARI, J.--- F.I.R. No,7 dated 19-10-2001 was registered under section 9(c) read with sections 14/15, Control of Narcotic Substances Act, 1997 against Muhammad Rasheed Khan and Javed Khan with the allegations that in presence of both the accused 106 sacks containing 3768 Kilograms of Poppy Heads and straws were recovered from the truck bearing Registration No,MR-2932. Muhammad Rasheed Khan was the driver while Javed Khan was accompanying him in the said truck. On 6-9-2002, Muhammad Akram son of Abdul Rehman respondent moved an application under section 516-A, Cr.P.C. For Superdari of the truck before the Special Court CONTROL OF NARCOTIC SUBSTANCES ACT, Rawalpindi on the ground that he was the bona fide owner of the truck in question and that respondent had no knowledge or concern with the alleged recovery of narcotic substance and that as there was no other claimant of the truck, he was entitled to possession of the truck on Superdari.
2. The said application was initially dismissed on 10-9-2002 mainly on the ground that the trial was in progress and under section 74 of the Act of 1997, the application of any law except the Control of Narcotic Substances Act, 1997 was barred and the custody of any conveyance (vehicle) used in transportation of the narcotics shall not be given to the accused or any of his associate or relative or any private individual till the conclusion of the case.
3. Muhammad Akram filed Criminal Revision No,227 of 2002 against the said order. Relying upon the dictum laid down in Niaz Ullah v. The State 2002 PCr.LJ 1997 it was held by the learned Single Judge of this Court held that the provisions of section 74, Control of Narcotic Substances Act, 1997 shall not be construed to constitute a complete bar to an application for Superdari even during the course of trial. The criminal revision was accepted on 2-7-2002 and the case was referred back to the learned trial Court for reconsideration of the application for Superdari on its merits.
4. Upon remand, the learned Judge Special Court (C.N.S.) found that both the accused namely Rasheed Khan and Javed Khan are closely related to Muhammad Akram respondent; that Rasheed Khan is the nephew of Muhammad Akram while Javed Khan is his brother. It was found that fact of recovery of a huge quantity of narcotics substance from the truck in question under the circumstances could not have been made without the knowledge of Muhammad Akram respondent. It was further held that whether Muhammad Akram had no knowledge of the presence of narcotics substance in his truck could be determined only after recording evidence under section 29 of Control of Narcotic Substances Act, 1997. The prayer for Superdari was again rejected vide order dated 23-10-2002.
5. Criminal Revision No,259 of 2002 was preferred by the respondent against this order. The criminal revision was accepted by this Court vide order dated 4-3-2003 and it was held that reference to section 29 of Control of Narcotic Substances Act,1997 was totally inept as none of the provisions of said section was attracted in the circumstances of the case. The learned trial Court was directed to re-hear and decide the application of the respondent for Superdari afresh. Upon the final remand, the Judge Special Court C.N.S. Allowed the application for Superdari of the respondent vide order dated 1-4-2003 on the ground that the respondent claims himself to be the owner of the truck and that there was no other rival claimant to the same. Regarding the assertion of the respondent that he was not in the knowledge of the use of his truck for any illegal activity, the learned Judge Special Court refrained from expressing any opinion as the statements of the remaining P.Ws. As well as the Investigating Officer was still to be recorded.
6. The learned counsel for the petitioner has assailed this order of Superdari on the ground that the truck in question was used in transportation of a huge quantity of narcotics substance. The accused Muhammad Rasheed Khan, is the nephew and accused Javed Khan is the real brother of Muhammad Akram respondent. It is contended that according to F.I.R. The narcotics substance was loaded in the truck in such a manner that 106 sacks containing 3768 Kilograms of Poppy Heads etc. Were loaded underneath 61 sacks containing tobacco. It is further contended that it is not the case of the respondent that being owner of the truck he had leased out the same to some unconnected persons as admittedly both the accused were closely related to him. He also contended that under section 74 of the Control of Narcotic Substances Act, 1997 the vehicle in question could not be released during the course of trial.
7. Conversely, the learned counsel for the respondent has strongly supported the impugned order of the learned Special Court.
8. Arguments have been heard and ' record perused.
9. The F.I.R. Was lodged on 19-10-2001. Charge has been framed in the case and statements of at least three P.Ws: have been recorded. We are not impressed by the submission of the learned counsel for the petitioner that section 74 of the Act was a complete bar to Superdari till the conclusion of the case. This has already been settled vide order dated 27-9-2002 passed by this Court in Criminal Revision No,227 of 2002. This view is also in consonance with the dictum as laid down in the case of Niaz Ullah v. The State 2002 PCr.LJ 1997 and rule laid down in the case of Abdul Salam v. The State 2003 SCM R 246. The trial Court, even during the course of trial can form a prima facie opinion about the fact whether an owner had or not any knowledge of the use of his vehicle for transportation of narcotics. Judicial discretion can be exercised in suitable case for the release of the vehicle temporarily on Superdari in view of the principle that when a Court can grant final relief, it also possesses inherent jurisdiction to grant a similar temporary relief pending the trial.
10. Be that as it may, we cannot ignore the fact that. Javed Khan shown as the conductor of the truck is the real brother of Muhammad Akram respondent while Rasheed Khan who was the driver of the said vehicle is a nephew of the respondent. According to the report under section 173, Cr.P.C.
In the present case, the original owner of the truck in question is named as Abdul Rehman father of both Javed Khan accused and Muhammad Akram respondent. According to the photostat copy of the intimation of transfer of ownership, the ownership was changed from the name of Abdul Rehman to the name of his son Muhammad Akram respondent.
11. In view of this close relationship between the accused and the respondent and also in view of fact that the truck in question was loaded with the narcotics substance in the manner that 106 sacks containing 376& Kilograms of Poppy Heads were concealed underneath 61 sacks containing tobacco leads a prudent person to believe that such act could not be performed without the active knowledge of the owner of the truck. There is nothing on the record which could enable the respondent to demonstrate that he had no knowledge about the narcotics being transported in his vehicle. It is not the case of the respondent that the truck was being used without his permission or by persons over whose activity he could have no dominion. In the case of Abdul Salam v. The State supra, Superdari was declined on the ground that the petitioner in that case had failed to satisfy the conscience of the Court that he had no knowledge of the illegal traffic in drugs. The in hand is identical.
12. In view of the foregoing discussion, we accept this criminal revision and set aside the order dated 1-4-2003 passed by the learned Judge Special Court, Control of Narcotic Substances.
Revision .