' AQEEL AHMED ABBASI, J.--Through this common judgment, we would dispose of the aforesaid Constitutional Petitions as the controversy involved in the above petitions is common and relates to legal status of Qingqi Motorcycle Rickshaw plying on the roads of Karachi city and different cities of Province of Sindh. In C.P. No.D-3974/2012 filed by United Human Rights Commission of Pakistan through its General Secretary, Rana Faizul Hasan. The petitioners have sought declaration from this Court to the effect that all three wheelers Qingqi Motorcycle Rickshaws plying in the city of Karachi and other areas of Sindh Province without any motor vehicle registration or route permit shall be banned as the same are being plying on the Loads in violation of Motor Vehicle Ordinance.
1965. It has been further stated in the aforesaid petition that the city of Karachi has been flooded with large number of unregistered three wheelers Qingqi Motorcycle Rickshaws without obtaining any fitness certificate or route permit in violation of provision of Section 23 read with Section 44(5) of Motor Vehicle Ordinance, 1965. It has been stated that such Motor Vehicle Rickshaw besides being plied on the roads in violation of law are also dangerous and a security risk to the life of the passengers and also a menace and creates hurdles in the smooth flow of traffic on the busy roads of Karachi City and other big cities in the Province of Sindh. It has been further stated that subject Qingqi Motorcycle Rickshaws are not approved from the concerned Engineering Department nor the same can be used as a public transport, however, inspite of such fact, a mafia is managing its increased flow as a public transport, whereas, according to petitioner, it has become a cause of serious traffic nuisance, traffic jam and insecure flow of traffic in the busy cities of the province of Sindh. It has been further stated in the petition that since the Qingqi Motorcycle Rickshaws have not obtained any route permit nor even got themselves registered under Motor Vehicle Registration Act, therefore, they ply their Rickshaws at whatever routes they so desire and even the said Rickshaws are going on wrong side of busy roads of Karachi city as well as in Hyderabad, Larkana and Sukkur, whereas, according to petitioner, the official respondents including the traffic police instead of taking legal action against such unregistered and authorized vehicles on road, are conniving with them and providing legal protection due to which number of such Qingqi Motorcycle Rickshaw is being increased day by day. It has been further stated that such Qingqi Motorcycle Rickshaws are found parked all over the main roads of the city as the same do not have official godown or parking area, hence petitioner has prayed that Qingqi Motorcycle Rickshaws may be directed to be immediately stopped, and shall not be permitted on the roads.
2. Pursuant to Court Notices issued in the aforesaid petition to the respondents as well as A.G.
Sindh. Comments have been filed on behalf of Superintendent of Police, M.V-1 Branch, Sindh, Secretary to Government of Sindh, Excise and Taxation Department Sindh/respondent No.5, Deputy Secretary, Ministry of Law, Government of Sindh/respondent No.3. DIG Traffic. Traffic Police/respondent No.9, wherein the official respondents have not denied the averments as contained in the memo of petition, whereas, it has been categorically stated that the Qingqi Motorcycle Rickshaws do not comply with the requirement of Chapter-IV of the Motor Vehicle Ordinance, 1965 and the Rules made thereunder, hence the same are liable to be confiscated. It has been further stated that no fitness certificate has been obtained by such Qingqi Motorcycle Rickshaw before plying, their vehicles on road, whereas, neither such Qingqi Motorcycle Rickshaws are registered with the Motor Registration Wing nor there is any proof regarding safety measures to be adopted by public vehicles to be used for commercial purpose. Mr. Saifullah. Learned AAG while making his submissions on behalf of official respondents has vehemently opposed the maintainability of the filed on behalf of the Qingqi Motorcycle Rickshaw Owners Association, bearing C.P. No. D-4166/2013 for being misconceived and not maintainable, as according to learned AAG, the petitioners have no locus standi to file instant petition, whereas, there is no cause of action arose which could otherwise justify filing instant petition as no adverse orders, whatsoever have been passed by the respondents. It has been further argued vehemently that petitioners i.e. Qingqi Motorcycle Rickshaws Owners Association have approached this Court with unclean hands as the Qingqi Motorcycle Rickshaw (three wheelers) admittedly do no have any route permit nor fitness certificate has been obtained from Transport Department. It is further contended that the petitioners have not even applied for registration of such Qingqi Motorcycle Rickshaw (three wheelers) with the Registration Authority, whereas, as a counter blast to C.P. No.D- 3974/2012, the above petitions have been filed to cover up their illegal activities. Learned AAG has contended that a public vehicle to be used for commercial purpose is required to be registered under Section 23 of West Pakistan Motor Vehicle Ordinance, 1965, before the Registration Authority, whereas, a fitness certificate in terms of Section 39 of the Ordinance is to be obtained from the prescribed authority. It has been further contended that owner of public transport is also required to obtain route permit for plying such vehicle on the roads in terms of Section 44 of the Motor Vehicle Ordinance, 1969, whereas, in the case of subject Qingqi Motorcycle Rickshaw (three wheelers), none of the above legal formality has been admittedly complied with. Learned AAG has also referred to various provisions of Motor Vehicle Rules, 1969, and contended that in terms of Rule 150 of the aforesaid rules there is restriction on the use, in any public place of a motor vehicle which does not comply with the rules contained in Chapter VI of Motor Vehicle Rules, 1969. Learned AAG has also referred to the provision of Rules 2(e), 2(f) and 2(ff) of the aforesaid Rules and submits that the subject Qingqi Motorcycle Rickshaw (three wheelers) do not fall within the definition as given in the aforesaid Rules, hence the same are not covered under the Motor Vehicle Ordinance, 1969, therefore, the same cannot be allowed to be plied on roads. It has been further argued that in terms of Rule 197(2) and Rule 197-A, only authorized manufacturers having license from the competent authority can manufacture such Qingqi Motorcycle Rickshaw (three wheelers) after complying with the requisite conditions, whereas, in the case of petitioners, neither there is any authorization nor the prescribed conditions for manufacturing/assembling of such Qingqi Motorcycle Rickshaw (three wheelers) in terms of aforesaid Rules have been complied and such Qingqi Motorcycle Rickshaw (three wheelers) are in fact a serious security rick and threat to the passengers. It has been prayed that the petitions filed on behalf of the Qingqi Motorcycle Rickshaws Welfare Association may be dismissed with cost, whereas, the official respondents may be directed to take necessary legal action against such Qingqi Motorcycle Rickshaw (three wheelers) in accordance with law so that the public nuisance and the traffic jam in the city of Karachi particularly and other cities of Province of Sindh may be reduced.
3. During pendency of the aforesaid petition, another petition being C.P. No.D-4166/2013 was filed on behalf of Karachi Qingqi Motorcycle Rickshaws Welfare Association through its Finance Secretary, Akbar Khan, with the prayer that the official respondents and the concerned Traffic Police may be restrained from taking any adverse action or detaining the Qingqi Motorcycle Rickshaws of the petitioner association. It has been further stated in the said petition that disruption and intervention by the traffic police in smooth function of the Qingqi Motorcycle Rickshaw business is violation of the fundamental rights guaranteed to the citizens of Pakistan to carry on the business of his choice, whereas, the official respondents are misusing and abusing the official responsibilities/powers by causing hindrance in this regard. It has been further stated that Qingqi Motorcycle Rickshaw is a legal public transport within the definition of Sindh Motor Vehicle Ordinance, 1965, whereas, this Court may declare such vehicle to be a legal public transport and the official respondents may be restrained from taking any illegal action against the owners of Qingqi Motorcycle Rickshaw.
4. Another petition i.e. C.P. No.D-4183/2013 has been filed by one Muhammad Arif, who claims to be the owner of Qingqi Motorcycle Rickshaw, has also sought similar declaration as in C.P. No.D- 4166/2013 filed on behalf of the Qingqi Motorcycle Rickshaws Welfare Association. It has been prayed in the aforesaid petition that the owners of the Qingqi Motorcycle Rickshaws who earned their livelihood by plying such Qingqi Motorcycle Rickshaw in the city may be provided protection against an adverse action and challan by the traffic policeier other official respondents.
5. In C.P.No.D-4753/2013, filed by Association for the Welfare of 'Owners and Staff of Qingqi Motorcycle Rickshaws Sindh, similar relief has been sought, however, with particular reference to Rule 2 Sub-clause (if) of Sindh Motor Vehicle Rules, 1969, whereas, it has been prayed that the official respondents may be restrained from taking any adverse action against the owners of the Qingqi Motorcycle Rickshaw.
6. We have heard the petitioner present in person in C.P. No.D-3974/2012 learned counsel for the petitioners and learned AAG and perused the record with their assistance. It is pertinent to mention that C.P.No.D-3974/2012 was filed on 13.11.2012, whereby the petitioner sought declaration to the effect that Qingqi Motorcycle Rickshaw (three wheelers) being plied on the roads of the Karachi City and other cities of the province of Sindh without fitness certificate and route permit as required under Sections 39 and 44 of the Motor Vehicle Ordinance, 1969, respectively, whereas, such Qingqi Motorcycle Rickshaw (three wheelers) are not even registered with the Registration Authority in terms of Section 33 of the Motor Vehicle Ordinance, 1969. It appears that aforesaid assertion of the petitioner has not been controverted by the private respondents i.e. Qingqi Motorcycle Rickshaw Owners Welfare Association. On the contrary, the same has been duly confirmed in the comments filed on behalf of the official respondents, who have categorically stated that admittedly, large number of subject Qingqi Motorcycle Rickshaws (three wheelers) are being plied on the roads without any lawful authority, whereas, mushroom growth of such Qingqi Motorcycle Rickshaw (three wheelers) has become a cause of serious public nuisance and traffic jams in the Metropolitan city like Karachi and other big cities of the province of Sindh. While, confronted with above factual position, learned counsel representing the Qingqi Motorcycle Rickshaw (three wheelers) Owners Association could not controvert such position, however, alternatively argued that since the official respondents have not issued route permit, fitness certificate nor have granted registration to such Qingqi Motorcycle Rickshaws therefore, they have filed the above petitions seeking direction to the effect that subject Qingqi Motorcycle Rickshaw (three wheelers) may be declared as eligible vehicles to be issued fitness certificate, route permit and registration in accordance with law. However, record shows that the petitioners could not place on record any such request or representation allegedly made by Qingqi Motorcycle Rickshaw Owners Welfare Association to the concerned Transport and Registration Authorities requesting for issuance of fitness certificate, route permit or registration of such vehicle. It has been further observed that the description of three wheelers subject Qingqi Motorcycle Rickshaws does not meet the requirement as described in terms of Rules 2(e), 2(f) and 2(ff) of the Motor Vehicles Rules 1969, which are reproduced hereunder for the sake of reference:- "Rule 2
(e) "Motor cab rickshaw" means a motor cab, with three wheels, the unladen weight of which does not exceed 900 pounds,. Avoirdupois, constructed, adapted or used to carry not more than two passengers excluding the driver.
(f) 'Motor cycle rickshaw' means a motor vehicle with three wheels the unladen weight of which does not exceed 900 pounds avoirdupois, constructed, adapted or used for private purposes.
Other than for hire or reward, to carry not more than two persons excluding the driver.
(ff) "Motor cycle rickshaw qingqi" means a motor vehicle with three wheels the unladen weight of which does not exceed 900 pounds avoirdupois, constructed, adapted or used for private purposes other than for hire or reward, to carry not more than four persons excluding the driver on designated route".
7. From perusal of hereinabove provisions, it has been noted that the prescribed specification of subject Qingqi Motorcycle Rickshaw (three wheelers), which consists of a Motorcycle, which is connected/joint by removing the back wheel of such motorcycle as defined in the aforesaid rules.
We have further observed that the petitioners have attempted to link the subject Qingqi Motorcycle Rickshaw (three wheelers) with the Qingqi Motorcycle Rickshaw, which were announced through Presidential scheme to provide employment to unemployed persons, however, through a prescribed scheme and subject to fulfillment of mandatory requirement of law, rules and scheme so announced. Petitioners have not been able to demonstrate as to how the scheme announced by the President in respect of Qingqi Motorcycle Rickshaw in the year 2010, which was meant for limited number of such Rickshaws and was subject to certain precondition is still applicable to the case of petitioners whose Qingqi Motorcycle Rickshaws, admittedly, do not meet the requirements of law nor the same conform to the specifications as prescribed in the relevant rules as referred to hereinabove. It is regretted to observe that inspite of the fact that subject Qingqi Motorcycle Rickshaws (three wheelers) do not meet the requisite specifications and requirements of law nor do they qualify under the Presidential Scheme and moreover, do not have any fitness certificate, route permit or even registration under the Motor Vehicles Ordinance, 1969, such vehicles are being permitted to ply on the busy roads of Karachi city and other big cities of the province of Sindh by the official respondents. Admittedly, the petitioner have not been granted the fitness certificate, route permit, registration etc. In terms of Motor Vehicle Laws, however, large number of such Qingqi Motorcycle Rickshaw (three wheelers) saddled with about 8-10 passengers, as reflected from the photographs attached by the petitioner in C.P. No.D-3974/2012 available at pages 109 to 113 as Annexure 'K', are roaming around on the main roads and highways in complete violation of Motor Vehicle Laws, rules and regulations. Since the official respondents have not taken any prompt legal action against such violators, therefore. Their number has increased tremendously and the entire traffic conditions in the city of Karachi particularly, as well as in the other big cities of the province of Sindh, has become alarmingly, hazardous and painful to large number of citizens, who otherwise ply their private or public vehicles after complying with the relevant Motor Vehicle Law, Rules and Regulations. It will not be out of place to observe that the deteriorating traffic conditions in big cities of Sindh particularly in Karachi, is because of unauthorized and illegal public transport, particularly, the large number of Qingqi Motorcycle Rickshaw (three wheelers) which are being allowed on the roads with the connivance of the public functionaries including traffic police, who appear to be either the beneficiaries or co-sharers of such illegal and illegitimate income. We are of the considered opinion that the petitions filed on behalf of Qingqi Rickshaw Owners Welfare Association, besides being misconceived in facts and law, are frivolous, whereas, the petitioners have no locus standi to file such petitions and to seek any equitable relief from this Court as, admittedly, they do not have any legal authorization to ply such vehicle on public roads without any fitness certificate, route permit and Registration in accordance with law. The description of subject Qingqi Motorcycle Rickshaw does not match with the description as prescribed in terms of Rules 2(e), 2(f) and 2(ff) of Motor Vehicles Rules 1969.
8. Accordingly, the aforesaid petitions being C.Ps. Nos.D-4166/ 2013, 4184/2013 and 4753/2013, filed on behalf of Qingqi Rickshaw Owners Welfare Association, are hereby dismissed along with listed applications with cost of Rs.10,000/- (Rupees ten thousand) each, to be deposited in the account of High Court Clinic. Consequent to dismissal of above petitions, the petition being C.P.No.D-3974/2012 filed on behalf of United Human Rights Commission Pakistan is allowed, whereas, official respondents i.e. Respondents Nos.1 to 9 are directed to take immediate legal action against all such illegal Qingqi Motorcycle Rickshaws (three wheelers), which are plying on the roads with impunity and without any fitness certificate, route permit and registration certificate. Such action may include issuance of challans, imposing fine and also impounding of such illegal vehicles in accordance with law, rules and regulations. Thereafter, compliance report shall be submitted to this Court through M.I.T. Within two weeks from the date of this judgment. It is further directed that unless the petitioner(s) obtain the requisite fitness certificate, route permit and registration with the concerned authorities, i.e. Transport Department and the Motor Vehicle Registration Wing, after complying with all the legal formalities, the respondents shall continue to take action against such delinquent vehicle owners in accordance with law and to submit further compliance report every month thereafter. However, it is clarified that such action shall be taken strictly in accordance with law, rules and regulations against such Qingqi Motorcycle Rickshaw (three wheelers), which do not comply with the Motor Vehicle Ordinance, 1965, Motor Vehicles Rules, 1969 or any other law for the time being in force by any Federal or Provincial enactment relating to public vehicles.
9. Let a copy of this Judgment be circulated to the Chief Secretary Government of Sindh, Home Secretary, Government of Sindh, Secretary, Transport and Mass Transit Department, Government of.
Sindh, Commissioner/Administrator, Karachi, concerned DIG/SP (Traffic), who shall ensure that immediate legal action shall be taken against such illegal Qingqi Motorcycle Rickshaws which are plying on public roads and highways of Karachi and other big cities of province of Sindh, without any route permit, fitness certificate and registration, whereas, all possible assistance shall be provided by the law enforcing agencies, including Rangers, if so required by local or provincial administration in this regard.