1. Applicant has called in question the order, dated 19-6-2003 passed by learned Sessions Judge/Judge, Special (C.N.S. A.) Ghotki whereby the application filed by applicant under Section 516-A, Cr.P.C. has been rejected.
2. Relevant facts for disposal of this application are that on 28-2-2000, the Excise Police, during the course of checking, searched a Bus Bearing No, 7714-QAG and from its secret compartment opium and Charas were recovered. Besides, a registration book in the name of one Khurshid Alam son of Sakhi Khan was also recovered. Later, on completion of investigation, the said Khurshid Alam being owner of the above vehicle alongwith other accused were forwarded to stand their trial before learned trial Court where he was declared proclaimed offender. During the course of proceedings of trial attorney of above named absconding accused filed on 17th April, 2000 an application for release of the above mentioned vehicle on Superdari basis, which was dismissed vide order, dated 16th May, 2000.
3. The trial in the instant case was concluded and by a judgment dated 14-2-2002 passed by learned Sessions Judge/Judge, Special (C.N.S.A), Ghotki, other accused were released while the case of above named Khurshid Alam (in abscondence) was kept on dormant file till his arrest.
4. At some later time, present applicant Abdul Rashid filed an application under Section 516-A, Cr.P.C. through his Advocate for custody of the above mentioned bus on Superdari basis. Learned Sessions Judge/Judge Special (C.N.S.A), Ghotki, after hearing learned counsel for applicant and learned Special Public Prosecutor dismissed the said application under the order impugned herein.
5. We have heard and given attention to the argument of Mr. Suleman Habibullah learned counsel for applicant and Mr. Muhammad Sarwar Khan learned Additional Advocate-General Sindh. With their assistance we have also gone through the papers made available before us.
6. Perusal of the impugned order reveals that absconding accused Khurshid Alam in his application filed through his attorney, for release of the above mentioned bus on Superdari basis, claimed himself to be owner of said bus. During the course of trial, as is evident from the impugned order, ' by an agreement dated 23-2-2000 the bus in question was sold out. The above stated facts have not been controverted by Mr. Suleman Habibullah learned counsel for applicant. His only contention is that the present applicant, now, being owner of the above bus is entitled to the custody of the said bus on Superdari basis, more so, when neither the bus has been confiscated while passing judgment of acquittal of other accused nor any other order as regards its disposal has been passed. He has stated that presently the bus is in custody of the police and in case it is let to remain in their custody its value shall be diminished. According to him, there is no legal bar to the release of the above vehicle to applicant. In support of his contention he has placed reliance on the case of Niaz Ullah v. The State 2002 PCr.LJ 97; Abdul Hamid v. The, State 2002 PCr.LJ 666 and Jehanzaib Shinwari and 4 others v. The State and 5 others PLD 2002 Pesh.
87. On the other hand Mr. Muhammad Sarwar Khan learned Additional Advocate-General, Sindh has opposed this application vehemently. His contention is that since the trial against the previous owner from whom the present applicant is said to have acquired right of ownership, is still pending, no decision as regards the above vehicle can be made in view of Section 32 of the Control of Narcotic Substances Act, 1997. He has argued further that there is also bar in the relevant Act on the release of the vehicle on Superdari basis unless it is proved that the owner had no knowledge of the commission of the offence. In this case it may be noted that Section 32 of Control of Narcotic Substances Act, 1997, hereinafter to be referred to as ''the Act" and also Section 74 of the Act which place bar on release of the vehicle, are relevant. Both the above Sections are reproduced as follows: "Section 32. Articles connected with narcotics.--(l I Whenever an offence has been committed which is punishable under this Act, the narcotic drug, psychotropic substance or controlled substance, materials, apparatus and utensils in respect of which or by means of which such offence has committed shall be liable to confiscation.
(2) Any narcotic drug, psychotropic substance or controlled substance lawfully imported, transported, manufactured, possessed, or sold alongwith, or in addition to, any narcotic drug, psychotropic substance or controlled substance which is liable to confiscation under sub-section
(1) and the receptacles or packages, and the vehicles, vessels and other conveyances used in carrying such drugs and substances shall likewise be liable to confiscation: Provided that; no vehicle, vessel or other conveyance shall be liable to confiscation unless it is proved that the owner thereof knew that the offence was being, or was to be or was likely to be, committed.
7. Section 74. Application of the laws.--If an offence punishable under this Act, is also an offence in any other law for the time in force, ' nothing in that law shall prevent the offence 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 time being in force, the custody of narcotic drugs, psychotropic substances, controlled substances, any material utensils 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." (Emphasis is by us). Perusal of the above proviso to Section 74 reflects that nothing contained in Section 523 of Cr.P.C. or any provision of the said Act or any other law for the time being in force the custody of any conveyance used in import, export, transport or transshipment of a narcotic drug or for commission of a.. 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.
8. In the instant case, the trial against the applicant is pending. He was owner of the bus in question when it was taken into custody while carrying Narcotic Substance. Thus, it yet to be decided whether the said bus is liable for confiscation, or otherwise subject to proof of absence of knowledge about commission of offence within terms of proviso to sub-section (n) of Section 32 of the Act, reproduced above hence the question of its release cannot be considered at this stage, moreso, in view of the bar in Section 74 reproduced above. In this we are fortified by the case of Abdul Salam v. The State 2003 SCMR 246 in which it has been observed as follows: "... 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 `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 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 `Superdari', 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."
9. Considering the above facts, circumstances and the principle laid down by Honourable Supreme Court in the above cited case, we are of the considered view that this application merits no consideration. Accordingly, we dismissed the same in limine.