1998 P Cr (PLP)

The petitioner purchased Pajero Model 1988 bearing Registration Number 6055 B.A. (Karachi) from one Malik Farooq Munir Ahmed, the last registered owner/keeper of the said vehicle. Pursuant to the sale, the latter, also executed a Transfer Letter in favour of the petitioner on 30-9-1997 seeking therein that the vehicle may be transferred in the petitioner's name.

2. On 28th November, 1997 the petitioner and his driver (Muhammad Zaman) were coming back after dropping petitioner's sister at school in the said vehicle, when the District Traffic Magistrate, Hafizabad (respondent No.3) stopped the vehicle and took the same into possession under section 550, Cr.P.C. and sent it to be kept at Police Station, City Hafizabad.

3. According to Entry No.7, dated 28-11-1997 of the daily diary register, Nasir Mehmood, Head Constable, Traffic Staff and Umar Hayat, Naib Court of the City Magistrate (respondent No.4) brought Pajero No.6055 B.A. (Karachi) and informed the Moharrir Police Station, City that they were on duty with the District Traffic Magistrate (respondent No.3). The Magistrate found the vehicle parked in Rail Bazar, Gujranwala Road. Neither the driver nor the owner was near it. They could not be found despite efforts. The District Traffic Magistrate taking the same in possession under section 550, Cr.P.C. told them to lodge the vehicle at City Police Station. They had accordingly brought the vehicle under the direction of the Traffic Magistrate and sought recording of the report to the above effect in the daily diary register as well as the retention of the vehicle at the police station.

4. The petitioner as such, through his driver (Muhammad Zaman) moved the learned Civil Judge-Judicial/Ilaqa Magistrate for Superdari of his vehicle; who called for a report from the S.H.O., Police Station City Hafizabad. The S.H.O. reported as under:-- The learned Judicial Magistrate passed an order of Superdari on 28-11-1997 in favour of the applicant/owner on furnishing surety bond of Rs.7;00,

000. The precise words of the order of Civil Judge/Ilaqa Magistrate was in the following terms:-

5. To frustrate the order passed by the Civil Judge/Judicial Magistrate, the City Magistrate (Executive) (respondent No.4) on the same day (28-11-1998) acting, suo motu directed the S.H.O., City Hafizabad trot to release the vehicle unless he gave the orders. The order reads as under;-- ??? "S.H.O. City The vehicle No.BA 6055 (Pajero) impounded by D.T.M. under section 550, Cr.P.C. shall not be released unless ordered by the undersigned/being City Magistrate (Executive). 28.11.1997????????????????????????????????????????????????????????????????????????????? (Sd.) Muhammad Zaman Khan, City Magistrate, HFD. ????? (Executive). This order was entered in the daily diary Register at serial No.20 (28-11-1998).

6. Muhammad Zaman, petitioner's driver approached the S.H.O., City Hafizabad with his Superdari application alongwith the registration document/transfer letter and the order of Ilaqa/Judicial Magistrate directing release or the vehicle on Superdari in terms referred to above. Faced with this situation, the S.H.O. went to the house of the City Magistrate to apprise him about the two conflicting orders one by him and the other by the Judicial Magistrate and to seek advice in this behalf. There he met the District Traffic Magistrate (respondent No.3) instead. He told him that until a case was registered after identification of the property taken in possession under section 550, Cr.P.C the power to dispose of such property rested with a Magistrate. However, after registration of the case in respect of the property suspected to be stolen the power of passing Superdari order lay with the Ilaqa Magistrate. In view of the conflict in the Magisterial decisions; the S.H.O. referred the matter to S.D. P.O./inspector Legal for legal opinion. Seemingly the S.H.O. Police Station, City Hafizabad was operating under the influence of the District Traffic Magistrate and the City Magistrate, He declined to implement the Superdari order passed by the Judicial/Ilaqa Magistrate in favour of the applicant/owner, on the crude pretext that neither tire applicant's name nor that of the petitioner figured in the Registration Book of the vehicle. He told the applicant, Muhammad Zaman to obtain the vehicle on Superdari he will have to bring Malik Farooq Ahmed, the last registered owner. All these facts are duly recorded at serial No.30 of the Daily Diary Register dated 28-11-1997 by the S.H.O. The order of Superdari passed by the Judicial/Ilaqa Magistrate was in favour of the applicant/owner, Obviously the vehicle could be given either to the applicant Muhammad Zaman or the owner (not registered owner) i.e. the petitioner being a bona fide purchaser and holder of letter of transfer from the vendor. Non-compliance with the order of Superdari by the S.H.O. was certainly in bad faith.

7. I called for a report from Superintendent of Police, Hafizabad (respondent No. 1) and the District Traffic Magistrate (respondent No.3). Respondent No. l (S.P.) in his report has vouched for the facts as stated above; but at the same time, supported the S.H.O. in the matter of interpretation of the Superdari order passed 17y the Judicial/Ilaqa Magistrate. According to him also the order of Superdari in favour of did not cover the applicant, Muhammad Zaman as he was not the owner. According to him the order could not be construed in favour'"6f the Petitioner either for the reason that even though he had the letter of transfer in his favour, he did not qualify as an owner because his name was yet not entered in the Registration Book of the vehicle.

8. This, 1 am afraid, this is a laboured and incorrect view. It amounts to a sordid attempt to frustrate the order of the Judicial/Ilaqa Magistrate. The word 'owner' is defined in Section 2 of subsection (24) of the Motor Vehicles Ordinance, 1965:

24-"Owner" means the person in whose name the motor vehicle .is registered and includes-- (a)??????? a transferee of the vehicle from such person; (b)??????? in relation to a motor vehicle which is the subject of a hire-purchase agreement; the person in possession of the vehicle under that agreement; and (c)???????

??????????????????????? (i)????????

(ii)???????

??????????? (iii)??????

(iv)??????

(v)???????

Registration of the vehicle is not the sine qua non of ownership or title of a vehicle. In the case of Hakimullah v, Saghiruddin and 2 others PhD 1975 Kar. 509 at page 521 Fakhruddin G. Ebrahim, J. on the issue of ownership of a vehicle observed, "between the seller and the purchaser non-registration will not otherwise prevent the passing of the title in the bus sold", The moment S.H.O. Police Station, City was made cognizant that the petitioner had purchased the vehicle and held the transfer letter executed by the last registered owner, he ought to have handed over the vehicle to him or his agent on furnishing the requisite surety as desired by the Judicial/Ilaqa Magistrate vide his order dated 25-11-1997,

9. The next point, which needs examination is the vires of the action of the District Traffic Magistrate in taking petitioner's Pajero in custody under section 550, Cr.P.C. According to Entry No.7 in Daily Diary Register of Police Station, City the District Traffic Magistrate found Pajero No.6055 B.A. (Karachi) parked in the Rail Bazar unattended. Neither the driver nor the owner was found near it and nor could they be traced despite best efforts, He as such took the same into custody under section 550, Cr.P.C, treating it to be stolen vehicle and sent the same to be kept at City Police Station through his sniff, 10, The version of the District Traffic Magistrate (respondent No.3) la however, diametrically opposed to the aforesaid report entered Serial No,7 in the daily diary register at the behest of his staff. It has been stated by the District Traffic Magistrate In his report that on 25-11-1997 Muhammad Zaman had parked the Pajero near railway crossing wrongly and had blocked the traffic. An being asked he failed to show the documents of the vehicle. Therefore, the vehicle was taken into custody under section 550, Cr.P.C. and handed over to S,H.O,, Police Station, City Hafizabad, He also denied having passed instructions to the S.H,O, (respondent No,2) for the non-release of the vehicle. His denial Is obviously contrary to the report of the S.H.O. duly recorded in the Daily Diary Register at Serial No,30, dated 25-11-1997, .The report submitted by respondent NA, 3 is ex facie at complete variance with the entries in the Daily Diary Register at Serial Nos,7 and 30 of 25-11-1997. He failed to render satisfactory explanation about this divergence, 11, Learned Advocate-General has frankly conceded that accepting either of the two statements by the S, P. (respondent No. l) or that by respondent No, 3 on their face value, in neither case the District Traffic Magistrate (respondent No.3) was vested with power under section 550, Cr.P.C. This section spells out only Police power with inbuilt checks and that too regulated by section 523, Cr.P.C. It was also conceded that Motor Vehicles Ordinance, 1965 was a complete Code. Section 550, Cr.P.C, did not figure any where in the scheme of the said law.

12. A District Traffic Magistrate under the Motor Vehicles Ordinance, 1965 is empowered only to try the traffic offences reported to him. Under no circumstances he can arrogate to himself the authority of a Police Officer under the Motor Vehicles Ordinance, 1965 or for that matter Cr.P.C. What has been done by the District Traffic Magistrate (respondent No)) is, thus, totally ultra vires his authority both under the Motor Vehicles Ordinance, 1965 as well as Criminal Procedure Code, 13 The conduct of the Traffic Magistrate even offends against the spirit of section 90 of the Motor Vehicles Ordinance, 1965. Under this provision, where a driver fails to provide the documents on demand made by the Police Officer, it would be sufficient compliance if such documents are produced within ten days, at any police station. Similarly, the power to detain a vehicle under section 115 of the Motor Vehicles Ordinance, 1965 does not provide any cover to his action either as it is in the first place exercisable by an authorised Police Officer and not the Magistrate and that too after ascertaining that a vehicle is being used in contravention of provisions of sections 21(1) and 44(1) of the Ordinance. This surely, was not the case here. 14, The report submitted by the District Traffic Magistrate (respondent No.3) to this Court is not only in conflict with the entries made at his own behest In the Daily Diary Register; but Intrinsically also it inspires little confidence, If the narrative In the report about wrong, parking or failure to show the documents were correct, the driver would have been proceeded against under the Motor Vehicles Ordinance for some Traffic Offences. Absence of such proceedings betray the falsehood of the report submitted by him to this Court, As the petitioner has been illegally deprived of his property by crude use of force and brute misuse of authority by respondent No,3, I am inclined to hold that the petitioner would be within his rights and, of course, justified to bring criminal/civil action against him, 15, The most condemnable part of the whole episode is that respondent No.3 had ganged up with a fellow Executive Magistrate (respondent No.4) to frustrate the order of Superdari passed by the Judicial/Ilaqa Magistrate, Report of respondent No,2 Incorporated at Serial No,30 of the Daily Diary Register of Police Station City Hafizabad dated 25-11-1997 clearly indicates that he not only pressurised the S,H,O, but also tried to mislead him so as not to comply with the order of Superdari passed by the Judicial/Ilaqa Magistrate. It is interesting to note that respondent No.4 submitted a report of his own accord although neither desired nor called -upon to do so, In his bid to confuse the Issue respondent No.4 took the blame on himself in this behalf, It was the constable on duty with respondent No.3 and the Naib Court of the City Magistrate (respondent No.4) who had left the vehicle in custody of respondent No.2, S.H.O. Police Station, City Hafizabad. When the Judicial/Ilaqa Magistrate passed the Superdari order, respondent No.4 Issued an order to the S.H.O. Police Station, City directing him not to release the vehicle unless he ordered so. The suo motu order of respondent No.4 reads as follows:-- "S.H.O. City: The vehicle No.BA 6055 (Pajero) impounded by DTMP under section 550, Cr.P.C. shall not be released unless ordered by the undersigned/being City Magistrate (Executive). This was obviously a collusive venture of both respondents Nos.3 and 4 to frustrate a lawful and competently passed order by the Judicial/Ilaqa Magistrate. It amounts to gross misconduct on the part of Nazir Hussain Varia, District Traffic Magistrate, Hafizabad and Muhammad Zaman Khan, City Magistrate, Hafizabad. I am constrained to hold that they both deserve to be proceeded against under the Efficiency and Discipline Rules, 1975 for their delinquent conduct.

16. In the report/parawise comments submitted by Superintendent of Police, Hafizabad (respondent No. l) and Muhammad Zaman Khan (respondent No.4) it was stated that a letter bearing No.918-AR(HFD) dated 29-11-1997 (Annexure "K") was received on behalf of Cooperative Society wherein it has requested that Vehicle No.6055-BA (Karachi) lying impounded at the Police Station City be forfeited against loan of Rs.4,99,920 with interest of Rs.1,19,953 outstanding towards one Jamshed Abbas Thaheem and vide a subsequent letter bearing No.972-74 dated 9-12-1997 from Assistant Registrar, Cooperative Societies it was maintained that the said vehicle be not released on Superdari unless the said loan was paid back by Haji Jamshed Abbas Thaheem, Ex .M.P.A.

17. The learned Advocate-General on 11-2-1998 sought time to consult the Deputy Commissioner and the Cooperative Department on this account. The claim, if any, of the Cooperative Society is admittedly against Jamshed Abbas Thaheem. He is in no way party before me. It is not within the scope of this petition either for me to enter into the controversy about nature and extent of default of Jamshed Abbas Thaheem qua the Cooperative Society. For the present, it is suffice to say, that it is no body's case that the vehicle either belongs to Jamshed Abbas Thaheem or that this vehicle in any manner stands pledged aginst the above loan. This seems to be yet another prank played by the respondents Nos.3 and 4 as they appear to have made It a matter of their prestige to frustrate the Superdari order passed by the Judicial/Ilaqa Magistrate in respect of the vehicle in issue. Resultantly; (i)???????? the order of Superdari passed by Mr. Mehmood Shakir, Judicial Magistrate is upheld and the order of the even date prohibiting release of the said Pajero is set aside, being motivated and without lawful authority. The vehicle shall be released by the S.H.O. to the petitioner on his furnishing surety bond in terms of the original order of Superdari; (ii)??????? as respondents Nos.3 and 4 have occasioned extreme anguish and agony to the petitioner and driven him to incur unnecessary expense in retrieving his vehicle, they are burdened with costs of Rs.1,000 each to be deposited with the Deputy Registrar (Judicial) of this Court within a fortnight; (iii)?????? the Registrar of this Court shall inform the Chief Secretary, Government of the Punjab, about the order of this Court for initiation of disciplinary proceedings against respondents Nos.3 and 4 under the relevant rules. , N.H.Q./A-242/L????????????????????????????????????????????????????????????????????????????????? Order accordingly.