' ASSADULLAH KHAN CHAMKANI, J.---Zewar Khan, the petitioner, filed this petition under section 561- A, Cr.P.C. For quashment of order dated 13-3-2013 passed by Additional Sessions Judge/Izafi Zila Qazi, Dir Lower, whereby application of the petitioner for return of vehicle bearing Registration No, 3925 LHO on "superdari" was dismissed.
2. Facts of the case are that the local police of Police Station, Talash, on 4-3-2013 recovered 300 gram charas from the secret cavities of Flying Coach bearing No,3925 LHO. The driver of the vehicle Habib Ullah son of Shamshad was arrested and the vehicle in question was also seized in the above referred case.
3. Zewar Khan, claiming ownership of Flying Coach filed an application for its return on "superdari" before the trial Court, which was refused, vide the impugned order, hence, the present petitioner under section 561-A, Cr.P.C.
4. Learned counsel for the petitioner submitted that there is nothing on file to show that the vehicle in question was used in the commission of offence with the knowledge of the petitioner. He further argued that the petitioner is owner of the vehicle and there is no other rival claimant of the same.
He argued that the order of court below is not in accordance with law, therefore, liable to be quashed and temporary custody of the vehicle in questions be given to the petitioner.
5. On the other hand, learned D.A.-G. Argued that the charas has been recovered by the police from the vehicle in question and section 74 of the Control of Narcotic Substances Act, 1997 prohibits the grant of custody of a vehicle used in the import export or transportation of narcotic substance to the accused or any of his associates or relatives of any private individual till the conclusion of the case and supported the impugned order.
6. Arguments heard and record .Perused.
7. The available record suggests that admittedly, the petitioner is not accused person in the present case. He claims ownership of the seized vehicle on the basis of registration book and a transfer letter. It is also admitted fact that there is no other rival claimant of the vehicle in question.
There is also nothing on file which could suggest that the vehicle in question has been used in the commission of offence with the knowledge of the petitioner. Section 32 empowers the trial Court to order confiscation of the vehicle used in trafficking of narcotics, with a proviso that the vehicle shall not be confiscated unless it is proved that the owner was aware that his vehicle was being used in the crime. Section 74 of the Act, ibid, does not prohibit the release of the vehicle involved in the trafficking of narcotics to its owner, who is not connected in any way with the commission of the crime or the accused and was unaware that his vehicle was being used for the crime. In the case in hand, there is nothing on record to show that the petitioner, was aware that his vehicle was used for the transportation of Charas. The petitioner has produced documents before the Court regarding his ownership and there is also no other rival clahlant of the same, therefore, in these circumstances, the petitioner is entitled to the temporary custody of the vehicle. Reliance is placed on the case of Allah Ditta v. The State reported in 2010 SCM R 1181.
Therefore, this petition is allowed, the impugned order is set aside and the vehicle in question is given on "superdari" to the petitioner subject to furnishing bail bonds in the sum of Rs, Seven lac with two sureties each in the like amount to the satisfaction of trial Court. However, the petitioner will be bound to produce the vehicle as and when required by any Court.