1. ' SARDAR SAID MUHAMMAD KHAN, C.J.--- This appeal has been directed against the order of the Shariat Court dated 5-10-1995, whereby the truck was released in favour of the appellant on Superdari' on furnishing bank guarantee to the tune of Rupees six lakhs.
2. ' The brief facts of the case are that the truck in question was involved in an accident which resulted in death of three persons. Initially the truck was released in favour of the appellant by the District Criminal Court, Muzaffarabad, but subsequently, on an application by one Abdul Karim, the father of one of the deceased persons, the order dated 18-9-1995 was set at naught. Consequently, a revision petition was preferred to the Shariat Court by the appellant. The learned Judge in the Shariat Court, by the consent of the counsel for the parties, released the truck in favor of the appellant provided he furnished bank guarantee to the tune of Rupees six lakhs to produce the truck in the Court whenever so required.
3. ' The present appeal has been preferred challenging the impugned order on the ground that the surety amount, and that too, in form of bank guarantee was harsh and excessive. It has been contended on behalf of the appellant by the learned counsel for the appellant that even if the counsel for the appellant volunteered to furnish the bank guarantee in the aforesaid amount, that would not debar the appellant from challenging it on the grounds that the same is not just or is violative of the spirit of law on the subject. The learned counsel has maintained that even if the appellant is domicile of Pakistan, he could not be demanded bank guarantee for obtaining the custody of the truck; the purpose could be achieved by demanding surety bonds of the persons who might be the men of means and the residents of Azad Jammu and Kashmir. The learned counsel has further contended that even if it is assumed for the sake of argument that the security amount demanded is not excessive, the Court could demand the same in form of surety bond and not in form of bank guarantee. The learned counsel has cited following authorities in support of his contentions.
4. ' In case reported as Mohiuddin v. The State 1987 M LD 932, the vehicle was involved in an accident. It was observed that keeping the vehicle in custody would deteriorate its condition and accused- owner would be deprived of his legitimate means of his earning. Thus, the surety amount was reduced from Rupees two lakhs to Rs,75,000 for releasing the vehicle in favour of the owner.
5. ' In case reported as Fazal Dad v. The State 1974 PCr.LJ , it was observed that it was proper that truck is given in the custody of the owner on Superdari on furnishing security by a person who was resident of and had property in the Province in which the concerned Court was situated.
6. ' In case reported as Haji Rab Nawaz v. The State 1988 PCr.LJ 1353, the wagon in which the murder was alleged to have been committed, was allowed to be taken by the petitioner on Superdari with the condition that he would produce the same when required by the trial Court.
7. ' Ch. Muhammad Yusuf, the learned Advocate-General, has controverted the submissions made by the learned counsel for the appellant and has argued that the impugned order did not suffer from any legal infirmity. According to the learned Advocate-General, as the counsel for the appellant volunteered in the Shariat Court in presence of the appellant to furnish the bank guarantee for the release of the truck, he cannot be permitted to turn round and say that the truck in question should be released on furnishing surety bonds and that, too, for a lesser amount. The learned Advocate- General has contended that the appellant cannot play both hot and cold and take contradictory positions in the Shariat Court and in this Court: We have given our due consideration to the matter. Obviously, the purpose of keeping the truck in the custody is merely an incidental matter to the proof of the offence which is alleged to have been committed by the accused. It is correct that the offer of furnishing bank guarantee to the tune of Rupees six Lakhs was accepted by the Shariat Court at the instance of the counsel for the appellant but all the same if the appellant subsequently failed to furnish bank guarantee for one reason or the other, he is not debarred from seeking the custody of the truck on furnishing adequate surety bonds for the production of the truck if and when demanded by the trial Court.
8. Similarly, mere fact that the appellant hails from Pakistan does not necessitate that the truck should be released only on bank guarantee and not on other appropriate security. Thus, we are of the view that in the circumstances of the case indicated above, if the appellant furnishes adequate surety that he will produce the truck in the trial Court when demanded, the custody of the truck shall be restored to the appellant.
9. ' Hence we accept the appeal and amend the impugned order. It is directed that the appellant shall furnish the surety bonds consisting of two sureties from Azad Kashmir to the satisfaction of the trial Court in the sum of Rupees six lalchs binding them severally and jointly that they would deposit the amount in the Court on failure to produce the truck by the appellant in the Court when demanded. If the aforesaid surety bonds are furnished, the custody of the truck shall be handed over to the appellant.