P L D 2004 Karachi 113 (PLP)

(c) To direct the respondent No.3 to return the licence of the President of the petitioner-Union, in the illegal custody of the respondent above named."

3. Mr. Thahim, learned counsel for the petitioner, contended that the Highway Police has no authority to take away the Driving Licence of the petitioner under the provisions of the Ordinance while Mr. Noorani vehemently contended otherwise:

4. I have heard. the arguments of both learned counsel and have carefully considered the matter in light of the object and the provisions of the Ordinance and the Motor Vehicles Ordinance, 1965. As I have heard elaborate arguments of both sides, with their consent, I am disposing of the entire petition at the stage of Katcha. Peshi.

5. Mr. Masood Noorani, learned A.A.-G., filed the comments of Babar Mushtaq, respondent No.3, on the allegations made in the petition. In paragraph 03, the latter in reply to the allegations made in paragraph 3 of the. petition has stated as follows: "That the Bus No. JA-9748 was challaned due to the violation of B-53 (Carrying passengers in dangerous position) as the bus was over, loaded,, four passengers seated on `TAPA' while the two were standing near front door so the violator petitioner was challaned, and licence as per. law was taken into custody. The defaulter driver was directed to pay the challan fine at the Toll get (sic) Hyderabad and then after showing challan receipt may collect the licence but the violator 'neither showed fined receipt nor collected his licence, as he wants to put pressure upon respondent No.4. Most of the time he threatened officers and used derogatory wards (sic) against the officers some of the reports are enclosed herewith for kind perusal. Copies of the enquiry reports are enclosed as Annexure A."

6. In the above statement the respondent No.3 has clearly admitted that he took the driving licence of the petitioner after issuing the Ticket/Challan for two violations of the provisions of the Ordinance and directed him to pay the challan fine at Toll Gate, Hyderabad after showing the challan receipt may collect the licence but the petitioner neither showed the payment receipt nor collected the licence. Respondent No.3 has not specified the place from where the licence was to be collected but it can reasonably be presumed that the licence was to be collected from the Toll Gate, Hyderabad where the fine was required to be paid.

7. A reading of section 79 of the Ordinance shows that under new system which has been introduced by the Ordinance, a person who has committed certain specified violations has been given an option not to contest the Ticket/Challan and pay the fine in the manner specified by the police officer on the Ticket or if he wants to contest the Ticket/Challan he is at liberty not to pay the fine mentioned in the A Ticket/Challan and contest the same. In case the offender chooses to contest the Ticket/Challan and does not pay the fine within 10 days, the police officer issuing the Ticket/Challan is authorized to take the registration or licence into custody and lodge a complaint against the offender before the Court having jurisdiction to try the offence. The option of accepting the charge and paying the fine provides the offender a chance to save this precious time and spare him from the hassle he would have to undergo in attending to the penal proceedings arising out of the violation of the Ordinance. The petitioner obviously did not contest the charge, paid the penalty but was not given back the licence as advised by the police officers.

8. Mr. Noorani, to justify the action of the contesting respondents referred to section 58 of the Ordinance which empowers a police officer to demand from any person who is driving a vehicle on the highway to produce his driving licence, certificate of insurance and certificate of registration of the vehicle and imposes an obligation on the driver to comply with such demand and produce the same in the manner provided therein. The reference to the said section is irrelevant as it does not authorize a police officer to seize a licence or certificate of registration.

9. Mr. Noorani then referred to section 82 of the Ordinance. A reading of the aforesaid section indicates that it does not empower a police officer to seize any document of a vehicle unless he is so ordered by a Court or by an Officer not below the rank of Superintendent of Police of the National Highways of Pakistan Motorway Police by a written order unless he has sufficient reasons to believe that the document is forged. In this petition, it is not the case of respondents Nos.3 and 4 that they had reasons to believe that the driving licence produced by the petitioner was a forged one. It is also arguable whether a driving licence falls within the meaning of the term "documents of any vehicle". This section, therefore, is also not, applicable to the circumstances of the present case.

10. Mr. Noorani, learned Addl. A.-G. thereafter contended that according to section 97, the provisions of the Ordinance are in addition to, and. not in derogation of, and any other law for the time being in force and submitted that the provisions of the Motor Vehicles Ordinance, 1965 were also applicable in the present case which confers powers to a police officer to take possession of a Driving Licence of the offender at the time of issuing a ticket. The contention regarding the applicability of the provisions of the Motor Vehicles Ordinance, 1965, is in accordance with the rules of interpretation of statutes and valid.

11. Now section 114 of the Motor Vehicles Ordinance does authorize a police officer to take possession of the driving licence or other document in certain specified circumstances. The said section reads as follows: . "

114. Power of Police Officer to seize documents. --(1).. .. (2) Any police officer authorized in this behalf by Government may, if he has reason to believe that the driver of a motor vehicle who is charged with any offence under this Ordinance may abscond or otherwise avoid the service of a summons, seize any licence held by such driver and forward it to the Court taking cognizance of the offence and the said Court may, on the appearance of such driver, before it and on such terms as to security as it may deem fit, .return the licence to him, and require to surrender any temporary acknowledgement given to him under subsection (3). (3) A police officer seizing a licence under subsection (2) shall give to the person surrendering the licence a temporary acknowledgement therefor and such acknowledgement shall authorize the holder to drive any motor vehicle specified in his licence until the licence has been returned to him or up to a date which the Police Officer shall specify in the temporary acknowledgment whichever is earlier: The above section clearly states that a police officer, if he has reason to believe, among others, that the driver of the motor vehicle who is charged with any offence under the Motor Vehicles Ordinance may abscond or otherwise avoid the service of the summons, is authorized to seize the licence held by the offender and forward it to the Court which has jurisdiction to take cognizance of the offence and such Court may return the licence to the offender under circumstances specified in subsection (2) of section

114. The section further provides that the police officer after seizing the licence shall give to the offender who surrenders the licence. a temporary acknowledgment therefor which acknowledgment shall be sufficient authority to drive arty motor vehicle until the licence has been returned to him or up to the date specified by the police officer in the ,acknowledgment, whichever is earlier. Respondents Nos:3 and 4 have nowhere stated that they had' reason to believe that the petitioner may abscond or otherwise avoid the service of summons. Further. respondents Nos.3 and 4 after taking the licence did not give to the petitioner a written acknowledgment of seizure of the licence as required by ,subsection (3) of section 14 of the Motor Vehicles Ordinance, 1965 and only directed the petitioner to pay the challan fine at Toll Gate Hyderabad and after showing the challan receipt may collect the licence. They did not specify the place or the person from whom the petitioner may collect the licence.

12. In view of the above discussion, it is evident that the act o respondents Nos.3 and 4 in taking away the licence of the petitioner ant not issuing a temporary acknowledgment of seizure was, prima facie, not in accordance with the above stated provisions of section 114 of the Motor Vehicles Ordinance, 1965. Respondents Nos.3 and 4 are warned to be careful in future and act strictly in compliance with the relevant provisions of law: As the said respondents acted clearly in breach of their statutory duty, they are directed to pay as compensation to the petitioner a sum of Rs.1,500 each. The compensation shall be deposited by respondents Nos.3 and 4 with the Additional Registrar of this Court within 15 days which may be withdrawn by the petitioner after proper identification.

13. Respondents Nos.3 and 4 have brought the licence of the petitioner which has been handed over to the petitioner's counsel who acknowledges its receipts. The petition stands disposed of in the above terms. M.H./A-518/K Petition allowed