' Through this Criminal Revision the Applicant has impugned the order of the learned II Additional Sessions Judge, Karachi South, by which the applicant was refused restoration of possession of vehicle and the vehicle was ordered to be restored to the respondent No.3, Shaukat Ali son of Ahmed Ali.
2. The facts as they appear from the pleadings of the parties are that the applicant claims to have purchased vehicle, bearing No.AAZ239, Suzuki Mehran, Model 1997, White Color, and was in possession of the said vehicle. The applicant further claims that the vehicle was registered/transferred in her name by the concerned Registration Authority.
3. It has further been pleaded by the applicant that the respondent No.3 was harassing the applicant through respondent No.1 as a result of which the applicant was compelled to file a Civil Suit No.278 of 2003 in the Court of VIII Senior Civil Judge, Karachi Central, against the respondents Nos.1 and 3 for the title of the vehicle and sought permanent injunction. It is further claimed that on her injunction application in the said suit the learned Judge has granted status quo order.
4. During the pendency of the said suit, the respondent No.3 lodged a complaint with the respondent No.1 claiming the ownership of the vehicle in dispute. The respondent No.1 impounded the said vehicle on the complaint of the respondent No.3, pursuant to the F.I.R. No.113 of 2002 under sections 406, 467, 468 and 471, P.P.C. Registered by the Police Station Boat Basin, Clifton Karachi. The 'applicant filed an application under section 516-A, Cr.P.C. Before the Sessions Judge Karachi South, which was transferred and assigned to the learned II Additional Sessions Judge, Karachi South. The said application was heard after calling the report from the Excise and Taxation Officer. In the detailed report from the Excise and Taxation Officer, it has been stated that originally the vehicle was registered in the name of Altaf Hussain whereafter the vehicle was transferred in the name of Ali Bath Khan. Again the vehicle was transferred in the name of the applicant and subsequently the respondent No.3 approached the Excise and Taxation Officer with an application that he was the lawful purchaser of vehicle from Ali Bath Khan and before the vehicle could have been transferred in his name the same was transferred in the name of the Applicant. It was further alleged in the application that the signatures of Ali Bath Khan on the transfer letter on the basis of which the vehicle was transferred in the name of the applicant, were forged. The record reflects that the Excise and Taxation Officer after notice to the applicant has cancelled the ownership of the applicant along with the registration book and restored the ownership of Ali Bath Khan, who claims to have sold it to the respondent No.3..
5. It appears that the learned II Additional Sessions Judge, Karachi South, keeping in view the report of the Excise and Taxation Officer had restored the possession of the vehicle to the respondent No.3 holding therein that respondent No.3 has lawfully purchased the vehicle from Ali Bath Khan subject to furnishing of indemnity bond of Rs.300,000 by the respondent No.3.
6. In this matter, the notice was issued for personal appearance not only to the Investigating Officer but also to the Excise and Taxation Officer, who passed the order. I was informed that Investigating Officer in these proceedings was S.I. Abdul Qadir Rind. This Police Officer on the basis of the report which the DPO (Operation), Hyderabad, had submitted in C.P. No.S-476 of 2002 (Muhammad Anees v. Saalim Rind and others) was restrained from assigning any field posting and was directed to be prosecuted on the basis of the inquiry report of the DPO (Operation), Hyderabad, and the Police Department was also directed, to take disciplinary action against him. This order was appealed against by the S.I. Abdul Qadir Rind before the Honorable Supreme Court of Pakistan and the leave was refused. Apparently, the said S.I. Abdul Qadir Rind was assigned field posting in defiance of the orders of this Court, therefore, notices have been ordered to be issued to the concerned Police Officers and office is directed to segregate this issue by maintaining separate file under the title of suo moto Revision of this Court but such file shall be tagged with the above case.
7. The learned Advocate-General, Sindh, on notice, has put in appearance and has submitted that the Excise and Taxation Officer has no jurisdiction under section 35 of the Motor Vehicles Ordinance, 1965 (hereinafter to be referred as "the Ordinance") to cancel registration of the lawful purchaser once the vehicle has been transferred in terms of section 32 of the Ordinance. He submitted that section 35 of the Ordinance restricts the power of the Excise and Taxation Officer to cancel registration only if a motor vehicle has been destroyed or has been rendered permanently incapable of use or if the Registering Authority is satisfied that a vehicle has been permanently removed out of the Province. He further submitted that the cancellation of registration of the vehicle in the name of the applicant by the Excise and Taxation Officer was unwarranted as none of the ingredients of this section apply to the facts of the present case. Learned Advocate-General further submitted that the registration of the F.I.R. And subsequent action of the ACLC based on the cancellation of registration by the Excise and Taxation Officer were also uncalled for as, prima facie, the dispute between the parties was that of civil nature and the same could not have been resolved by initiating criminal proceedings as the claim of the applicant was that she was bona fide purchaser of the vehicle, on the basis of the open letter and once the vehicle was transferred under section 32 of the Ordinance, the Excise and Taxation Officer, in law, had no authority to cancel the registration of the applicant on the representation of the previous owner. He, therefore, has conceded that the order of the Excise and Taxation Officer cancelling registration of the applicant was unlawful and subsequent F.I.R. And actions by the respondent No.1 based on the Excise and Taxation Officer's order was outside the purview of ACLC as none of the offences with which the applicant and others have been charged are attracted in the present case as it was a case where the purchase of the vehicle and its transfer was in dispute. The criminal intent in the transaction was missing.
8. The respondent No.3, who is party to these proceedings has never turned up inspite of repeated notices and even today neither respondent No.3 nor anyone representing him is present. It is reported that the respondent No.3 is not available on the address given in the memo. Of revision application.
9. I have heard the learned counsel and have gone through the record. For the purpose of deciding the power of the Excise and Taxation Officer to cancel registration of vehicle, section 35 of the Ordinance is reproduced hereinbelow:-- "35. Cancellation of registration.---(1) If a motor vehicle has been destroyed or has been rendered permanently incapable of use, the owner shall, as soon as may be, report the fact to the Registering Authority within whose jurisdiction he resides and shall forward to that authority the certificate of registration of the vehicle together with any token or card issued to authorize the use of the vehicle in a public place.
(2) The Registering Authority shall, if it is the original registering authority, cancel the registration and the certificate of registration, or, if it is not, shall forward the report and the certificate of registration, to the original Registering Authority and that authority shall cancel the registration and the certificate of registration.
(3) Any Registering Authority may order the examination of a motor vehicle within its jurisdiction by such authority as Government may by order appoint and, if upon such examination and after giving the owner an opportunity to make any representation he may wish to make, it is satisfied that the vehicle is in such a condition that its use in a public place would constitute a danger to the public and that it is beyond reasonable repair, may, for reasons to be recorded in writing, cancel the registration of the vehicle.
(4) If Registering Authority is satisfied that a motor vehicle has been permanently removed out of the Province, it shall cancel the registration of the vehicle.
(5) (5) A Registering Authority or any prescribed authority cancelling the registration of a motor vehicle under this section shall communicate the fact, together with the reasons therefore, in writing to the owner of the vehicle, and the owner of the vehicle shall thereupon forthwith surrender to that authority the certificate of registration of the vehicle and any token or, card issued to authorize the use of the vehicle in a public place.
(6) A Registering Authority making an order of cancellation under this section shall, if it is the original registering authority, cancel the certificate of registration and the entry relating to the vehicle in its records, and if it is not the original registering authority, intimate in writing the fact of cancellation, and the reasons therefor and forward the certificate of registration and any token or card surrendered to it under subsection (5) to the original registering authority, and that authority shall cancel the certificate of registration and the entry relating to the motor vehicle in its records.
(7) The express "original registering authority" in this section and in sections 31, 32, 33 and 34 means the registering authority in whose records the registration of the vehicle is recorded."
' Chapter III of the Ordinance deals with registration of motor vehicle. Section 32 of the said Chapter deals with the transfer of ownership of vehicle whereas section 32-A deals with cancellation of certificate of registration of vehicle registered in the Tribal Areas. Section 33 pertains to alteration in the motor vehicle; section 34 is for suspension of registration and section 35 deals with cancellation of registration.
10. On the plain reading of section 35 of the Ordinance, the Excise and Taxation Office which is the Registration Authority can order cancellation of registration when the motor vehicle has been destroyed or has been rendered permanently incapable of use or if the Excise and Taxation Officer is satisfied that motor vehicle has been permanently removed out of the Province but this section does not authorize the A Excise and Taxation Officer to cancel registration of a vehicle in favour of a purchaser once the vehicle has been transferred in terms of section 32 of the Ordinance. The power of cancellation of the registration under section 35 is limited and could only be exercised when there exist the conditions provided therein. Even this authority of cancellation could not be exercised by the Excise and Taxation Officer under the garb of section 34(e) wherein it is provided that if a substantially false statement has been made in the application for registration of the vehicle it can be suspended. Though section 34 deals with the suspension of the registration and if the suspension order under section 34 subsection (1) remains in field for more than one month, the Registering Authority in whose jurisdiction the vehicle is may cancel registration but subject to the conditions provided under section 34(5) of the Ordinance.
11. Basically, the question that requires determination is whether the Excise and Taxation Officer in exercise of its power under the different provisions of the Ordinance can adjudicate upon and give finding in regard to the legality of a sale transaction of a vehicle by holding that the vehicle was either sold to one party or to the other. Such a finding, in the face of the present case, is dependent upon the allegation that the signature on, the open letter by the previous owner was forged. The Excise and Taxation Officer, who was present in Court, has produced the open letter and the application, which the previous owner has made to him. On comparison of the two signatures, I did not find any difference and Excise and Taxation Officer is not a handwriting expert to determine that the signature of the previous was forged on the open letter unless on comparison it prima facie so appears. Moreover, the transaction of sale is dependent upon the contract between the parties and if one party defaults or commits breach of contract by selling a vehicle to a stranger on the basis of open letter alleged to have been signed by the previous owner, the Excise and Taxation Officer, under the provisions of the Ordinance or the rules framed thereunder, has no authority to nullify such a contract by cancelling the registration. The party claiming commission of breach of contract and or trust is obliged, in law, to file a civil suit but cannot seek redress of its grievance under the garb of either section 34 or section 35 of the Ordinance.
12. In the present case, the order of cancellation of registration by Excise and Taxation Officer has resulted. In exposing the applicant and others to criminal prosecution. The belated F.I.R. Based on the orders of the Excise and Taxation Officer and subsequent action by respondent No.1 of seizure of the vehicle from the possession of the applicant and thereafter the order of the II Additional Sessions Judge restoring possession to the respondent No.3 are without the sanction of law. The exercise of powers by the Excise and Taxation Officer cancelling the registration is, ex facie, abuse of authority as he does not have such powers once the vehicle has been transferred in terms of section 32 in the name of the applicant. If the previous owner has any claim that he has never sold the vehicle to the applicant and the vehicle was with someone else who committed breach of trust and has sold it to the applicant on the strength of open letter, then the issue of the nature falls outside the purview of the provisions of the Ordinance. The previous owner may have initiated proceedings against the one who has committed breach of contract but the applicant, who was bona fide purchaser of the vehicle without notice, could not be deprived of the enjoyment of the vehicle under the garb of the order of the Excise and Taxation Officer, on the basis of which F.I.R.
Was lodged and the vehicle was seized by the respondent No.1 whereafter the said vehicle was restored to the respondent No.3 'by the Court.
13. What is most unfortunate was that the II Additional Sessions Judge while refusing restoration of possession to the applicant has overlooked the basic question that the Excise and Taxation Officer, in law, has no authority to give any finding on a sale transaction of the vehicle. Even otherwise, it was also before the leaned Judge that the Applicant has approached the Civil Court and the issues raised in the proceedings were common to the issues raised in the civil suit and the criminal Court could have stayed the proceedings and restored possession to the applicant once dispute of title was raised by the applicant. The scope of section 516-A, Cr.P.C. Is limited and the Court in the normal course restores possession to the party from whose possession the vehicle is recovered and the question of title is left open to be decided by the Civil Court. In the present case, the learned II Additional Sessions Judge seems to have been influenced by the comments of the Excise and Taxation Officer and without determining whether the Excise and Taxation Officer has the authority in law to pass an order of the nature has held that the purchase of the vehicle by the applicant was not proved. Findings of learned Judge on an interlocutory order holding that the applicant has not purchased the vehicle was uncalled for. Such a finding could only be recorded on the basis of evidence adduced by the parties. It is expected that the Courts while determining the rights of the parties should not travel beyond their jurisdiction to reach a conclusion, in absence of evidence at interlocutory stage of the proceedings.
14. Since the applicant is pursuing the remedy in the suit the parties aggrieved can join such proceedings and seek declaration in regard to their right of entitlement. The order of the Excise and Taxation Officer cancelling registration in the name of the applicant for the aforesaid reason was without sanction of law, which is accordingly set aside and Excise and Taxation Officer shall restore the original transfer of the vehicle in the name of the, applicant in the record of Excise and Taxation Office. The respondent No.3 or any other person claiming ownership of the vehicle on the strength of the statement by the previous owner or the previous owner himself may approach the Civil Court for their entitlement to the vehicle and or may join the proceedings initiated by the applicant by way of civil suit referred to hereinabove. The SSP A,CLC shall immediately seize the vehicle and restore its possession to the applicant. The applicant shall remain in possession of the vehicle till the Civil Court finally adjudicates the matter and possession of the vehicle would be subject to the findings of the Court in Civil Court. The SSP ACLC is further directed to take appropriate steps to submit report under section 169, Cr.P.C. For disposal of the criminal case against the applicant or any other person under 'C' class as the F.I.R. Which was registered belatedly was based on the order of the Excise and Taxation Officer, which order has been declared nullity by this Court.
15. These are the reasons for my short order dated 30-7-2004 by which 1 had allowed the above criminal revision application. These reasons shall be communicated to all the concerned for compliance. accordingly.