1. ' GHULAM RABBANI, J.---Through this revision application applicant SAS Cargo (Pvt.) Ltd. Karachi has challenged the order dated 10-2-2004 passed by the learned Special Judge of CNS, Naushahro Feroze whereby the delivery of vehicle (trailer) bearing Registration No.LSC 3689 on Superdari basis to the applicant, has been declined.
2. ' Briefly stated the relevant facts noted for disposal of this Revision Application are that on 29-8- 2003 Excise Inspector, D.I.O. Camp Kandiaro on spy information stopped on Bypass Bhiria City National Highway, Bhiria City, the above-mentioned vehicle with two containers mounted thereon and recovered 6000 kilograms of Charas from one of containers bearing No.SIZU-756048-3 while from another container bearing No. GST-2981652 except some wooden boxes nothing incriminating was recovered. The Driver Muhammad Saeed Awan and his two associates namely Tahir Hussain and Muhammad Ismail were arrested and brought at the P.S. Along with the case property where crime bearing No.9 of 2003 was registered under section 9(c) of the Control of Narcotic Substances Act, 1997 (hereinafter to be called as "the Act"). During the pendency of the trial, applicant Company filed application under section 516-A Cr.P.C. For handing over to it above- mentioned vehicle on Superdari which was declined vide order impugned herein.
3. ' Mr. Maqbool Ahmed Awan, learned counsel for the applicant argued that the Company who is owner of above vehicle is not involved in the commission of above-mentioned crime; the container from which the narcotic drug/substance was allegedly recovered was, before transportation, sealed by Customs Authorities at Rawalpindi and then the said container was carried on the above-mentioned vehicle with no knowledge to the applicant that it contained the narcotics hence neither the applicant Company could be held responsible for the alleged offence nor the bar contained in section 74 of the Act would come in the way of release of vehicle to applicant on Superdari basis. In support of his contention Mr. Awan referred to the case of Niaz Ullah v. State (2002 PCr.LJ 97), the case of Abdul Hameed v. State (2002 PCr.LJ 666) and the case of Abdul Salam v. State (2003 SCM R 246).
4. ' Mr. Awan argued further that the applicant Company had got the above vehicle from Bank Al- Falah on instalment basis which were being paid from its earnings and in case it is not released to the applicant, the applicant Company shall not be able to pay the instalments due to huge monetary losses with the result that applicant Company and the above-named Bank, both shall suffer.
5. ' On the other hand Mr. Mumtaz Ali Siddiqui, learned State counsel argued that Company is owner of the above-named vehicle used in transportation of huge quantity of narcotic drug/substance hence, in view of the barring provisions contained in section 74 of the Act, it could not be released to the applicant. Mr. Siddiqui also placed reliance on the case of Abdul Salam (supra).
6. ' We have given due attention to arguments of both the learned counsel and with their assistance we have examined the material available on record.
7. ' Section 74 of the Act which is relevant for the purpose of consideration of prayer of applicant is reproduced as follows:-- S:74. Application of other laws.----If an offence punishable under this Act, is also an offence in any other law for the time being in force nothing in that law shall prevent the offender from being punished under this Act: ' Provided that nothing contained in section 523 of the Code of Criminal Procedure, 1898, (Act V of 1898), or any other provision of the said Code or any other law for the time being in force, the custody of narcotic drugs, psychotropic substances, controlled substances, any material untensils used for production or manufacture of such drugs or substances or any conveyance used in import, export, transport or transshipment thereof or for commission of an offence under this Act, shall not be given on custody to the accused or any of his associate or relative or any private individual till the conclusion of the case except as provided in the second proviso to subsection (2) of section 33.
8. ' The reading of the above provision of law reflects that any conveyance used in transport or transshipment of narcotic drug/substance, psychotropic substance and controlled substance or for commission of offence under the Act shall not be given on custody to the accused or any of his associate or relative or any private individual till the conclusion of the case. Thus, there is an embargo on delivery of custody of conveyance to four persons viz. (1) accused, (2) his associate,
(3) his relative and (4) any private individual. In the instant case applicant is a private limited company and is not an accused. It does not fall within scope of terms "Associate" and "relative" of accused as defined in the Act, which are reproduced below, for the simple reason that one of the accused Saeed Ahmed is driver of Trailer while two others namely Tahir Hussain and Muhammad Ismail found available in the Trailer are shown in the F.I.R. As his companions.
9. (2). (c) "associate", in relation to an accused, means---
(i) any individual who is, or has, at the relevant time been ordinarily residing in the residential premises, including outhouses and servant-quarters of an accused;
(ii) any individual who is, or has, at the relevant time been managing the affairs or keeping the accounts of an accused;
(iii) any association of persons, body of individuals, firm or private limited company within the meaning of Companies Ordinance, 1984 (XLVII of 1984), of which an accused is, or has, at the relevant time been a member, partner or director;
(iv) any individual who is, or has, been at the relevant time a member, partner or director of any association of persons, body of individuals, firm or private limited company referred to in sub- clause (iii);
(v) a trustee of any trust created by an accused; or
(vi) where the Special Court, for reasons to be recorded, considers that any property of an accused is held on his behalf by any other person, such other person;
2. (zb) "relative", in relation to an accused, means the spouse or any lineal descendant of the accused and includes any other person holding property for or on his behalf; ' Whether Applicant falls within meaning of the remaining class of persons viz. Private individual, it may be noted that word "individual" is not defined in Control of Narcotic Substances Act, 1997, however, according to Black's Law Dictionary (6th edition), the word "individual" means a single person as distinguished from a group or class and also very commonly a private or natural person as distinguished from a partnership, Corporation or Association, but; according to the same dictionary this restrictive signification is not necessarily inherent in the word and that it may in proper cases include "artificial persons". Then, "artificial person" has been defined as "persons created and devised by human laws for the' purpose of society and Government as distinguished from natural persons. Corporations are examples of artificial persons." Thus the cumulative effect discernible in the light of above connotation/definitions as expressed in the Black's Law Dictionary, in our view, would be that the term "individual" would include the applicant being a private limited company. The provision of section 74 on release of the vehicle, thus, shall be applicable to the case of applicant. Even otherwise, in our view, it cannot be the object of the Legislators to exclude the juridical persons from the operation of the above provision of law letting it/them to operate against the intent and purport of the above provisions of law.
10. ' Coining back to the merits of the case of applicants it may be stated that Mr. Awan during the course of his arguments, emphasized that the container from which the narcotic drug/substance was allegedly recovered, was sealed by Custom Authorities at Rawalpindi before transportation and it was not to the knowledge of the applicant that it contained the narcotics, if any, recovered from it, therefore, neither the applicant Company could be held responsible for the alleged offence nor the bar contained in section 74 of the Act would come in the way of release of vehicle to the applicant on Superdari basis. To support his arguments he placed reliance on the above-cited cases. In this regard it may be stated that before we proceed further, it will be advantageous to refer to the case-law cited by Mr. Awan.
11. ' In case of Niaz Ullah (supra), 7 Kgs. Of Charas recovered by Recovering Agency were found concealed in a spare wheel of the vehicle (a taxi car) being driven by a driver. A Single Judge of Lahore High Court while directing that the custody of vehicle be handed over to the petitioner therein, an owner of said car, observed as follows:-- "The admitted position is that the petitioner is the owner and there is no dispute about it. For ascertaining as to what may have been his role, the Court summoned the Investigating Officer.
12. Who on repeated questions has categorically stated that the owner was not involved in any manner in the offence and, therefore, was not inducted as an accused in this case that it has also to be seen whether the spare wheel belonged to the vehicle under reference or it had been picked up by the driver from somewhere as his own.
13. ' This Court, therefore, feels that the owner of a vehicle which is involved in the crime on account of a third person who was driving it and where an owner himself was held to be innocent, falls on a different footing and the prohibition of pre - trial custody created by section 74 of the Control of Narcotic Substances Act, 1997, shall not be extendable to him."
14. ' In case of Abdul Hamid (supra), i.e. The other case referred to by Mr. Awan, it has been observed that: "A perusal of the record would indicate that so far there is nothing thereon to show that the vehicle was used in the commission of crime with the knowledge of the petitioner. No doubt section 74 of the Act prohibits the grant of custody of a vehicle used in the import, export of 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 canons 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 provisions 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."
15. ' The .Third case referred to by Mr. Awan is of Abdul Salam (supra). In this case 17 kilograms of Charas were recovered from one Liaquat Ali, a Driver of the vehicle of which the petitioner therein claimed to the owner and approached the trial Court for its release on Superdagi, his request was declined by the trial Court as well as by learned High Court, Peshawar whose jurisdiction was invoked under section 561-A, Cr.P.C. And ultimately, on petition for leave filed by the petitioner therein Honourable Supreme Court while dismissing the same observed that: ' 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 "Superdagi", 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.
16. 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 'Superdagi', 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." (Emphasis by us).
17. ' In the instant case, too, an oral statement has been made that the container from which the narcotic drug/substance was recovered, was sealed by Custom Authorities at Rawalpindi before transportation and it was not to the knowledge of applicant that it contained the narcotics; and in support of said statement documents viz. Certificate of Sealing Containers, Bill of Export and other like documents have been produced. In this behalf it may be stated that on examination, the first- mentioned document shows that M/s. Phoenix Armour (Pvt.) Ltd., had affixed the seal No.033613 on the said container bearing No.SCZU 756048 and the number of Truck was shown to be JI 6239 while the Trailer in question which carried the said container bears a different Registration Number i.e. LSC-3689. The said document also shows that the seal was duly signed by Supervisor of Sealing Company and the Inspector, Customs Dry Port, as well. Then the other documents viz. The Bill of Export signed by the Customs Authorities supports the above-mentioned fact beside showing that contents of Container were 600 wooden open Boxes each containing 4 marble tiles (in all 2400 tiles), thus, indicating that at the time of sealing the container contained only marble tiles and nothing. The F.I.R. Lodged in the case shows that container was being carried not by the vehicle which is mentioned in the "Certificate of Sealing Containers"; but, by a different vehicle which is claimed to be owned by applicant. The F.I.R. Also shows that the said container and other container were simply found locked at the time when Charas was recovered from it. Nowhere therein it is stated that there was a seal on it. These facts ex facie indicate that after examination of contents and sealing of container on/for vehicle No.JI 6239 either before or after shifting/transportation of container on another vehicle viz, the Trailer of applicant huge narcotic substance of 6000 Kgs has been filled in the Container or otherwise it may be said that the authenticity of above documents is doubtful. Be that as it may, all these factors require to be evaluated, when evidence is led, at trial.
18. Presently, the facts as appear in the case reflect that a huge quantity of narcotic drug/substance has been recovered from the container which was being transported on the vehicle of applicant and that nothing has been brought before us that on the way from Rawalpindi up to the place of recovery, the Charas so recovered could have been filled in the container in question by anybody else. The oral statement of applicant that it had no knowledge that narcotic substance was being transported in the Container on its vehicle is, therefore, not supported by above documents.
19. Nothing else is available, at this stage to infer that applicant had no knowledge. Thus, in the above- stated peculiar facts and circumstances of the case and following the case of Abdul Salam (supra), we find no merit in this Revision Application and dismiss the same along with the listed application.
20. Revision .