1994 PLP 1141 (MLD)

MAMOON KAZI, J: --The petitioner in each of these petitions is person who is aggrieved by the action of Karachi Traffic Police, as his motor car which according to him, was not parked within a `No Parking' area was lifted by the Police with the aid of a fork-lift and deposited at the nearest police station. When the petitioner went to retrieve his said vehicle from .the police station he was compelled to first pay ks.100 said to be the lifting charges for his motor vehicle. A receipt was however, passed on to the petitioner which has been attached to this petition. The petitioner being aggrieved by such action of the police has therefore filed the present petition.

2. A counter-affidavit has been filed on behalf of respondent No.1 in C.P. No.D-123 of 1990 by one Fateh Muhammad Soomro, S.S.P. Traffic, Karachi South. It has been contended on behalf of the said respondent that motor-car of the petitioner was parked within "No Parking Zone" and therefore, it was lifted by the police by virtue of powers vesting in it under Rule 218 of the West Pakistan Motor Vehicles Rules. In regard to the charges of Rs.120, which the petitioner was compelled to pay before taking delivery of his motor vehicle from the police, it has been contended that Rs.100 were taken from him as lifting charges for the person in whose custody the abandoned vehicle was kept and Rs.20 were charges as token fine for contravention of the rules in regard to parking.

3. Although it is not possible for us to determine factual controversies between the parties while we are exercising jurisdiction under Article 199 of the Constitution, but the basic question requiring determination is, whether the traffic police had any lawful authority to lift the petitioner's motor vehicle to the nearest- police station under the circumstances enumerated above.

4. Rule 218 of the West Pakistan Motor Vehicles Rules from which support has been sought by respondent No.1, provides as follows:

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218. Vehicle abandoned on the road.

(1) If any motor vehicle is allowed to stand in any place other than a duly appointed parking place in such a way as to cause obstruction to traffic or danger to any person, any police officer may

(a) forthwith cause the vehicle to be moved under its own power or otherwise to the nearest place where the vehicle will not cause undue obstruction or danger; (b) unless it is moved to a position where it will not cause obstruction or danger take all reasonable precautions to indicate the presence of the vehicle; and (c) if the vehicle has been stationary in one place for a continuous period of twenty-four, hours and adequate steps have not been taken for its repair or removal by the owner or his representative, remove the vehicle and its contents to the nearest place of safe custody. (2) .................................................................................................. (3) Notwithstanding any fine or penalty which may be imposed upon any person upon conviction for the contravention of the provisions of the section 82, or of any regulation made by a competent authority in relation to the use of duly appointed parking places, the owner of the motor vehicle or his heirs or assigns shall be liable to make good any expenses incurred by any police officer in connection with the moving, lighting, watching or removal of a vehicle or its contents in accordance with sub-rules (1) and (2); and any police officer, or any person into whose custody the vehicle has been entrusted by any police officer, shall be entitled to detain the vehicle until he has received payment accordingly and shall upon receiving such payment, give a receipt to the person making the payment:' The provisions of Rule 218(1)(c) just reproduced above show that although the police have been vested with power to remove a motor vehicle to the nearest place for safe custody if the vehicle will cause any construction or danger or in case the same has been allowed to stand in any place other than duly appointed parking place, and such place can be the nearest police station, but the said provisions can be invoked only when a motor vehicle has been abandoned by its owner for a period of twenty-four hours, and not otherwise. Rule 218(1)(a) shows that first the motor vehicle is only to be removed to the nearest place where the vehicle will not cause undue obstruction or danger and clause (b) further shows that in that case all necessary precautions would be taken to indicate the presence of the vehicle. The rule therefore shows that immediate removal of the vehicle to the nearest police station is not warranted by the Rule. We have also taken into consideration clause (3) of Rule 218 which makes the owner of a motor vehicle or his heirs or assigns liable to make good any expenses incurred by any police officer in connection with the moving, lighting, watching or removal of the vehicle or its contents but again the said clause also does not contemplate immediate removal of a motor vehicle to the nearest police station.

5. The learned Additional Advocate-General who has appeared on behalf of the respondents alongwith Mr. Habibur Rashid, Advocate, has not been able to provide any satisfactory explanation to the queries made by us in this regard. His only contention was that since the said rule authorises a police officer to remove a motor vehicle which is causing undue obstruction (sic) the power to remove such vehicle will also include the power to remove the same by a fork-lift to the nearest police station. We are unable to accept this contention because rule 218 does not even remotely suggest that exercise of such power by the traffic police is permitted. All that the rule authorises a police officer to do is to move the motor vehicle under the circumstances: referred to in clause (1)(a) of the said rule, to the nearest place where the vehicle will not cause any undue obstruction or danger. Needless to say, that removal of a motor vehicle to the nearest place cannot be the same as its removal to the nearest police station. No doubt, if a motor vehicle is parked in an area which is or has been declared as a no parking zone, the offender can be prosecuted for such violation, but any further action by removal of the vehicle to any police station could not be warranted by law, unless there are circumstances to attract the provision of Rule 218(1)(c) which admittedly was not the case in the present case. We are, therefore, of the view that the action taken by the traffic police was without lawful authority. Since the action taken by the police was not warranted by law, the taking of Rs.100 from the petitioner for safe custody of the motor-car was also without lawful authority. In the result, these petitions are allowed, however, since the motor vehicles in respect of which the grievance arose have already been handed over to the petitioners, the charges of Rs.100 taken from each of the petitioners, being not justified, shall be liable to be returned to the petitioners. AA./A-1449/K Petitions accepted.