' IBADAT YAR KHAN, J.- The facts of this case are very tricky. A gang of narcotic dealers seems to be involved in this case. It is so well-known that these narcotic dealers have by now spread tentacales in our society and in addition to other devices to get away from the retribution of their crime have now thought of yet another device to defeat the ends of justice and save themselves from the long arm of law. Now they obtain bail and after securing their release on bail bolt away never to return.
The prosecution is left with no other alternative but to enforce the surety bonds and forfeit the whole or a portion of the surety amount in the bond. In quite a number of cases it has been pleaded on behalf of absentee accused that after obtaining bail they had gone on `Jehad' to Afghanistan and had been martyred. The vehicles used for trnasportation of narcotics which have been I are later on claimed by some third person, who turns up and obtains sion of the vehicle concerned on among other pleas the ownership of the vet. And its misuse by those from whose possession the vehicle was seized at the time of the arrest of the absconding accused.
2. In this case the Excise Police of Ubauro during their patrol duty seized a truck driven by accused Ahmad Jan, who was accompanied by a cleaner named Haleem Khan Pathan. This truck had secret chambers in it and when the Excise staff checked the truck and looked into the secret chambers 180 kilograms of Charas was found lying in the cavities of the secret chambers. The Excise staff seized the truck in pursuance of the provisions of 'Article 14 of the Prohibition (Enforcement of Hadd) Order, 1979 and also arrested the two occupants named above. They were challaned and put up on tiral on 27-7-1989. They applied for bail and by order dated 23-8-1989 they were allowed to be released on bail. After securing their liberty through this order they never turned up again, necessitating cancellation of their bail bonds and forfeiture of the amount of surety.
3. After some time the present respondent Abdul Bari turned up in the Court and moved an application for releases of the truck on the ground that he was the owner of the truck and the two absconding accused were his employees, who had unauthorisedly used the truck for the purpose of transporting narcotic. This application came up for hearing before Sub-Divisional Magistrate, Mirpur Methalo. The restoration of that truck under section 516-A was opposed by the District Attorney on the ground that the applicant Abdul Bari who was claiming the ownership was also the employer and he could at least offer assistance to the prosecuting agency in securing the attendance of his employees, who were hiding and were avoiding attendance in Court. Secondly it was contended by District Attorney that if the truck is restored to the applicant there was a probablity of removal of the secret chambers and thus it would seriously prejudice the prosecution case. On the other hand it was argued on behalf of the applicant that there was no imminent possibility of the two absconders being brought to Court and/or any progress in the prosecution case and the truck could be reduced to junk due to vagaries of wheather. It was further contended that the truck was the main source of levelihood for the applicant and keeping him deprived would be causing unnecessary hardship. It appears that the argument of the prosecution. {{Foot Note}} "Things liable to confiscation In any case in which an offence has been committed under this Order, the intoxicant, still, utensil, implement or apparatus in respect or by means of which the offence has been committed shall be liable to confiscation alongwith the receptacles, packages, coverings, animals, vessels, carts or other vehicles, used to hold or carry the same".{{Foot Note}} ' carried weight with the learned Magistrate and he passed order dated 4-12-1989 and rejected this application under section 516-A, Cr.P.C.
4. After some time another attempt was made by the owner and fresh application under section 516-A, Cr.P.C. Was moved by Abdul Bari for , restoration of the truck. This application was heard by the Sub-Divisional Magistrate, Mirpur Methalo, who passed the order dated 30-5-1990. The concluding para of this order may be reproduced below:- "Accordingly I have considered the reasons put forth by the learned Defence counsel for restoration of the Truck on superdari under section 516-A, Cr.P.C. When there was no likelihood of re-arrest of the absconding accused and proceeding of the case. Master should not be held responsible for acts of his servants committed by them in his absence. I order to restore the Truck to the applicant/owner of the alleged truck on furnishing solvent surety in the sum of Rs, three lacs for production of the truck if and when directed by the Court."
5. The proposition enunciated in the order seems to have influenced the learned Magistrate. It is highly debatable and it is difficult to subscribe to the view that "Master should not be held responsible for acts of his servants committed by them in his absence." Without agreeing with this proposition, we would, however, agree with the learned Magistrate that in the situation of the case, the ends of justice would better be served if the truck is handed over to the applicant not because his claim of ownership is accepted but because this truck which is deteriorating with every passing day and nothing would be left after some time, should be preserved. The question is how to preserve it? Section 516-A, Cr.P.C. Provides an answer. The Section runs as under:- "516-A. Order for custody and disposal of property pending trial in certain cases. When any property regarding which any offence appears to have been committed, or which appears to have been used for the commission of any offence is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy or natural decay, may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of."
' Instead of handing it over to any third person, it would be better if it is handed over in superdari to the present respondent on his furnishing surety in the sum of Rs,3,00,000 (Rs, three lacs) as determined by the learned Magistrate. Before handing over the truck, it should be examined by Vehicle Inspector in the presence of the respondent and a full report regarding its present condition including the presence of the secret cavities in the body of the truck should be furnished in Court.
6. Before parting with the case, we may also observe that the prosecuting agency, should examine the possibility of prosecuting the owner of the truck in terms of "Article 3 of Prohibition (Enforcement of Hadd) Order, 1979. Without meaning to express any opinion a casual reading of this Article shows that an importer, exporter, transporter, manufacturer or a seller or a person trafficking in the narcotics or even financing such a trade are all liable for the crime. It should be examined why all the classes of people mentioned in this Article, who may not be physically present at the time of arrest of the driver and seizure of vehicle, should not be joined in the prosecution and brought to Court. With these observations we would sustain the order dated 30-5-1990 and dismiss the revision petition filed by the State against this order.