1989 PLP 696 (MLD)

Petitioner's passenger carrier bearing registration mark 9076‑SA, while being plied on Murdike/Sheikhupura Road, was impounded by Muhammad Nawaz, A.S.I., of Police Post Sheikhan, P.S. Muridke, District Sheikhupura, on 23‑1‑1989, under the order of Moaziz Ahmad Khan, D.S.P., Highway Traffic, Sheikhupura; and consequent upon failure of private efforts directed towards release of the vehicle, this Constitutional petition was resorted to on 29‑1‑1989, contending that the vehicle is not involved in any criminal case registered with the police, wherein, with a view to ascertaining the factual position on 30‑1‑1989, report and parawise comments were called for from respondent No.1, perusal whereof, read with the appendices reveals that pursuance to verbal directions of respondent No.2, issued on the preceding evening, the former on the morning of 23‑1‑1989, detained the vehicle at the police post, factum whereof was confirmed to the latter through a wireless message, and a report to that effect was recorded in the daily diary vide report No.3 with a note pleading ignorance to the case in which the same has been detained. On 24‑1‑1989, respondent No.2 sent a teleprinter message to respondent No.1 through Moharrir H.C. P.S. Muridke, that the vehicle should not be released without his orders. During pendency of the petition, awaiting report and parawise comments, a case was registered at P.S. Muridke vide F.I.R. No. 49, dated 17‑2‑1989 under sections 279 and 338, P.P.C., at the instance of one Muhammad Rashid, regarding an occurrence alleged to have taken place on 17‑12‑1988, to the effect that while complainant's father, Muhammad Shafi, at Sheikhan bus stand was endeavouring to board the vehicle bounded for Sheikhupara, the driver accelerated the same and tire conductor pushed him aside., in consequence whereof, he fell down., and the vehicle rolled over his leg causing fracture; wherein the vehicle was released on Superdari on 3‑2‑1989.

2. Respondent No.2 was summoned to explain his position in obedience thereto he put in appearance, and, after initial reluctance, not surprisingly, responding to the query from the Bench, frankly admitted the factual position set out supra; however, with a view to absolving himself of the responsibility, impelled by after the event anxiety of seeking legal refuge, feebly attempted to submit that he had also issued direction to respondent No.1 for registration of a case in this behalf, which, I 'am of the firm opinion, was nothing but a proverbial afterthought subterfuge.

3. Having admitted the factual position, respondents were called upon to point out any statutory provision conferring or vesting in them legal authority, mandate or sanction for such an action, to which they frankly conceded in the negative.

4. Since the whole case has been heard, therefore, it is being disposed of as a notice case.

5. I have no doubt in my mind that impounding of the vehicle on 23‑1‑1989 and subsequent detention thereof till registration of the case referred to above viz. 1‑2‑1989, was utterly devoid of any lawful authority and legal justification; and is a pregnant illustration of abuse, excess and transgression of power by the respondents as public servants beyond the permissible domain of their jurisdictional periphery in contemptuous disregard to the law of the land. I am A equally convinced that both the respondents are pari delicto; because superior's command does not furnish a legal licence for the commission of too obvious illegalities. The pen ultimate note in the report lodged by respondent No.1 in the daily diary, as a matter of caution, demonstrates that the same was manufactured consequent upon awareness of the petition with a view to catering for his defence.

6. In view of the aforegoing, respondent No.1 is directed to register a case against himself and respondent No.2 for excess, abuse and transgression of the lawful authority precipitating into injury to the petitioner, thereby depriving him of the source of livelihood and necessitating recourse to the present proceedings. B A copy of t he F.I.R. should be lodged with the Deputy Registrar (Judicial) on 13‑2‑1989. S.P., Sheikhupura should have the investigation completed under his supervision within a fortnight, and the matter should be finally concluded within I three months, result whereof should be communicated to the Registrar of this' Court. 6‑A. Keeping in view the conduct of respondents, this petition is accepted with special costs of Rs.3,000 against each of them.

7. Before parting, it may be observed that ‑I have consciously preferred to C refrain from making any comments as to the case registered vide F.I.R. No. 49, reffered to above, lest its merits are affected. The same should be investigated and dealt with strictly in accordance with law. M.Y.H./M‑1112/L Petition allowed.