1999 PLP 280 (CLC)

(f) the documents filed after February, 1997 and the actions taken by C.P.L.C. Excise and Taxation Officer, C.I.A., Judicial Magistrate, A.C.M.‑I, East Karachi were all based on mala fides and were without jurisdiction and that the petitioner for the above actions had not been heard; (g) the order passed under section 34 of the Motor Vehicle Ordinance was void and erroneous; ' (h) the learned counsel made a reference to Annexure ' S' at page 131 of the Court file to point out that the police inquiry, was closed and suspended on 21‑1‑1993 in the F.I.R. No.914 of 1990 and the final report meant that the car had been handed over to Mrs. Tahira Fahim Khan prior 21‑1‑1993 and was in her possession."

5. Mr. Suleman Habibullah, the learned counsel has furnished a copy of an unreported judgment in Constitution Petition No.2532 of 1995 in the case of Karachi Port Trust Progressive Workers Union which has been decided by a learned Division Bench of this Court. The following proposition appears at pages 10 and 11 of the judgment:‑‑-- "It is settled law that the High Court, although an adequate alternative remedy exists, would not hesitate to exercise its Constitutional jurisdiction where there is patent want of jurisdiction or where a statutory functionary is shown to have acted in an unjust or oppressive manner, lending credence to pleas of mala fides. Like would be the position where an order is shown to have been vitiated by an error apparent on the face of the record or where there is absence of evidence or perverse appreciation of evidence or where the exercise of power is colourable or where law is shown to have been patently flouted or where the proceedings have been conducted in an oppressive, capricious or unjust manner. In all such cases Constitutional jurisdiction of the High Court can be invoked directly."

6. The learned counsel for the petitioner also cited the case‑law reported as Muhammad Shafi v. Mushtaq Ahmed 'through legal heirs and others 1996 SCMR 856 and Shaikh Gulzar Ali and others v. Special Judge, Special Court of Banking and another 1990 PSC 1243.

7. Mr. Ismail Memon, learned counsel appearing for respondent No. l (the Sindh Government) has stated that the instant Constitutional petition is incompetent and has become infructuous and invalid since the car has already been handed over to Mrs. Tahira Fahim Khan who was its real owner after considerable processes, inquiries, investigations as per orders of authorities. Ire has referred to the inquiry of the Citizen Police Liaison Committee (Annexure "K"), the inquiry made by the Director Excise and Taxation Department, Karachi (Annexure "L"), the inquiry made and order passed by Excise and Taxation Officer, Motor Registration Authority, Karachi on 10‑7‑1997, the inquiry and order made by the Government of Balochistan Home and Tribal Affairs Department, dated 28‑7‑1997 (Annexure "N"), the order of the Commissioner Quetta, Quetta Division Quetta (Annexure "O"), dated 27th July, 1997, order of the Deputy Commissioner, Quetta (Annexure "P"), dated 29th July, 1997, order of the Judicial Magistrate‑I, East, Karachi, dated 5‑8 1997 (Annexure "Q") and "Superdginama" dated 5‑8‑1997 (Annexure "R") and further order passed by the Assistant Additional City Magistrate .Court No.1, East Karachi, dated 8‑8‑1997 by which the care was transferred to the real owner (i.e. Mrs. Tahira Fahim) and she was allowed to further transfer and sell the same.

8. According to the learned State Counsel it has not been held in any manner by any authority that the petitioner was the real, bona fide and genuine owner of the said car and had purchased the same from Mrs. Tahira Fahim. Furthermore, the petitioner holds no right under Article 23 of the Constitution and even as the facts are, a prima facie right has not been made out, therefore, this petition is liable to be dismissed in limine.

9. On behalf of Mrs. Tahira Fahim Khan, Mr. Muhammad Naseem, Advocate has appeared and submitted that the car was purchased in 1979 by Mrs. Tahira Fahim as first owner and it is not held in dispute that the car was stolen on 6‑11‑1990 and F.I.R. was lodged by Mr. Mazhar Shah, the real brother of the owner (i.e. Tahira Fahim) on the same date. The car was not recovered during 6‑11‑1990 onwards till its recovery was revealed by the C.P.L.C. vide their Letter No.CPLC/CRC/7786/88/Ent.50/D940, dated June 11, 1997 (Annexure "K"). He submitted that Mrs. Tahira Fahim did not come into contact with the petitioner in February or April, 1997 and even lately he did not know her address. When the car was not in her custody and the registration book was also not with her, it is impossible to comprehend how she could have sold the car to the petitioner on 2‑2‑1997 as alleged. The car was handed over to Mrs. Tahira Fahim on 5‑8‑1997 after inquiries by various agencies and senior executive functionaries including the Citizen Police Liaison Committee, Director Excise and Taxation, Excise and Taxation Officer, Commissioner Quetta Division and Deputy Commissioner, Quetta. Further, verification was also made by the Senior Superintendent Police Quetta and Judicial Magistrate, Karachi before the car was handed over to her. The car was not available at Karachi to have been sold by Mrs. Tahira Fahim Khan. According to the learned counsel the above facts which the petitioner and his learned counsel have failed to repudiate amply demonstrate that the car was stolen, used and kept at Quetta and not at Karachi and was tracked down at Quetta.

10. It was further stated by the learned counsel for respondent No.5 that the car was found at Quetta by the S.H.O. Airport when information was passed on the C.P.L.C. The car was brought from Quetta by Inspector Riazul Haq of C.I.A., Jamshed Quarters on 2nd and 3rd August, 1997. Therefore, the question of snatching away the car from the petitioner at Quetta, as alleged by the petitioner's learned counsel did not arise. The fact that the car was never available in the custody of Mrs. Tahira Fahim Khan before 5‑8‑1997 is fully established by the above facts and circumstances of the case and the total claim in the petition is based on fraud and misrepresentation of facts. Lastly he submitted that the contrivance of a new engine and registration book were simply bogeys to cover up .the theft and fraud. In support of his submission that the petition is not maintainable the learned counsel for the respondent No.5 relied upon the following established propositions of law and case‑law on the subject:‑

(a) since the petitioner has not come to the Court with clean hands the writ jurisdiction could not have been invoked: (Raisuddin Shamsi v. Martial Law Administrator Zone "C", Karachi and 3 others PLD 1978 Kar. 84); (b) the writ jurisdiction can be invoked only to foster justice and not to perpetrate fraud: (Fatal Din and 3 others v. The State 1983 SCMR 648 (650), Muhammad Saleem v. Superintendent of Police Sialkot and another PLD 1992 SC 369 and Wealth Tax Officer and another v. Shaukat Afzal and 4 others 1993 SCMR 1810). (c) constitutional jurisdiction is not available since department remedy in the statute which was available has not been exercised/exhausted. The order in this case was passed by the Excise and Taxation Officer and no appeal was filed. Order was passed by Judicial Magistrate under the Motor Vehicle Ordinance, 1965 and although section 36 thereto provided for an appeal, no appeal was filed: (Abdul Bari v. Government of Pakistan and 2 others PLD 1981 Kar. 290, Commissioner of Income‑tax, Companies II and another v. Hamdard Dawakhana (Waqf) Karachi PLD 1992 SC 847, Al‑Ahram Builders (Pvt.) Ltd. v. Income‑tax Appellate Tribunal 1993 SCMR 29 and Income‑tax Officer and another v. Messrs Chappal Builders 1993 SCMR 1108). (d) in this case the petitioner wishes to invoke Article 23 which is not available since the title of the car has not been established in his favour. The claim is also based on disputed facts. Accordingly no writ lies: (Messrs Karachi Industrial and Textile Mills Karachi and another v. Settlement Commissioner (Industries) Lahore and another PLD 1978 Kar. 328, Karachi Warehouse and Carries Workers Union v. Pakistan Warehouse Carries Union and 3 others PLD 1978 Kar. 417, Abdul Farukh v. Presiding Officer Junior Labour Court IV, Karachi and 2 others PLD 1978 Kar. 867, Muhammad Younus Khan and 12'others v. Government of N.‑W.F.P. through Secretary Forest and Agriculture Peshawar and others 1993 SCMR 618). (e) in this matter the dispute has finally been resolved and the car handed over to the real owner. The High Court shall not be entitled in writ jurisdiction to substitute its opinion on the facts as found by the departmental authorities: (Karachi Shipyard and Engineering Works Ltd. v. Abdul Ghaffar and 2 others 1993 SCMR 511). (f) with the overwhelming facts and orders the Constitutional petition has become infructuous and the purpose of the petition is only face saving.

13. I have examined the facts as alleged in the petition as well as the rival contentions. This is a case where the petitioner wishes to invoke Article 23 of the Constitution of Islamic Republic of Pakistan. I am unable to subscribe to his contention since a legal and bona fide title to the car in his favour has not been established. The various authorities have after due inquiries, decided that the said car belongs to Mrs. Tahira Fahim. The cancellation of registration was an appealable act whereagainst no appeal has been filed. The order of Excise and Taxation Authority could have been further appealed for which also no appeal has been filed. The claim of the petitioner as to the ownership of the car has not been established before any Court or administrative authority. It is also correct that Constitutional jurisdiction cannot be invoked in a case where departmental remedy which was available to the petitioner has not been exercised and exhausted. The orders in this case were passed by various authorities and no protest letter was sent or representation made. This was a case where fraud was detected at Quetta and the initial action of handing over the car to the real owner was initiated at Quetta. The petitioner, if aggrieved, could have lodged an F.I.R., or preferred petition before authorities at Quetta even a Constitution petition before the High Court of Balochistan at Quetta, but nothing at all was done. As was rightly submitted by the learned counsel for respondent No.5 judicial inference under Article 199 of the Constitution is meant to foster justice and not to perpetrate fraud. This is a proposition on which there is no dispute. I am also of the view that the petitioner has not rushed to the Court with clean hands hence, the petition is liable to be dismissed. Lastly, what the petitioner wants under this petition is to substitute a finding to the finding of fact arrived at by the authorities, which again is misconceived. Even otherwise, the High Court under Article 199 will not assume the role of an investigator as field by the Honourable Supreme Court in Mst. Zuhra Begum v. S. Sajjad Hussain and 7 others 1971 SCMR 697 and Brig. (Retd.) Imtiaz v. Government of Pakistan through Secretary, Interior Division, Islamabad and 2 others 1994 SCMR 2142.

14. Part X of the Constitution deals with emergency powers, and Article 233 therein provides as follows:‑‑ "233. (1) Nothing contained in Articles 15, 16, 17, 18, 19 and 24 shall, while a proclamation of emergency is in force, restrict the power of the State as defined in Article 7 to make any law or to take any executive action which it would, but for the provisions in the said Articles be competent to make or to take, but any law so made shall, to the extent of the Incompetency, cease to have effect, and shall be deemed to have been repealed, at the time when the Proclamation is revoked or has ceased to be in force. (2) While a Proclamation of Emergency is in force, tae President may, by Order, declare that the right to move any Court for the enforcement of such of the Fundamental Rights conferred by Chapter 1 of Part II as may be specified in the Order, and any proceeding in any Court which is for the enforcement, or involves the determination of any question as to the infringement, of any of the Rights so specified, shall remain suspended for the period during which the Proclamation is in force, and any such Order may be made in respect of the whole or any part of Pakistan. (3) Every Order made under this Article shall, as soon as may be, be laid before a joint sitting for approval and the provisions of clauses (7) and (8) of Article 232 shall apply to such an order as they apply to a Proclamation of Emergency." Our country is governed by the rule of law as embodied in Article 4 of the Constitution. This Article enjoins that it is the inalienable right of every citizen of Pakistan to be treated in accordance with law and only in accordance with law. The Supreme Court of Pakistan while interpreting this Article described it to be akin to, "the due process‑of law", in the American Constitution, (see Ch. Manzoor Ellahi v. Federation of Pakistan PLD 1975 SC 66 (109). Every executive action must, therefore, be in conformity with law, and if it is found to be lacking in this requirement the Court will be obliged to strike it down. The Constitution, thus, guarantees supremacy of law which has to prevail under all circumstances and at all times.

16. Before parting it would be relevant to deal with Article 233 of the Constitution referred to by Mr. Suleman Habibullah in support of his submission that this petition may be kept pending due to proclamation of emergency in the country on 28th/29th May, 1998. Despite proclamation of an emergency in the country under Articles 232 and 233 of the Constitution the Courts are not precluded from determining the question as to whether an executive action is in consonance with law as required by Article

4. The reason for coming to such conclusion is that even if all fundamental rights are suspended by a Presidential Order under Article 233(2) (as has been done), the provisions of Article 4 remain in the field since the same is not a fundamental right. (see Federation of Pakistan and others v. Ch. Manzoor Elahi PLD 1976 SC 430 and Miss Riffat Parveen v. Selection Committee through Administrator, Bolan Medical College, Quetta and 7 others PLD 1980 Quetta 10). On the facts of the case even if Articles 4 and 23 were applied, the petition would fail as already discussed above. There is, thus, no justification to defer hearing and disposal of the petition till lifting of the emergency as contended by the learned counsel for the petitioner.

17. The upshot of the above discussion is that this petition alongwith Miscellaneous Application (M.A. No.492 of 1997) having no force is dismissed in limine. H.B.T./M‑363/K Petition dismissed.