ARSHAD HUSSAIN KHAN, J.---The petitioner through instant constitutional petition has prayed as follow:-- a) To declare that the petitioner is bona fide owner of the car/vehicle. No. AJD-754 D-Cuore, Model 2005 Engine No. R-027180 Chassis No.L-50iS-7526868. b) To direct the respondents No.2 to make entry in the name of the petitioner in the computer which due to mistake did not make entry in the computer in the name of the petitioner. c) Any other relief as this Hon'ble Court may deem think fit and proper in view of the circumstances.
2. Brief facts leading to filing of the present petition as stated therein are that the petitioner purchased the Car DIAHATSU CUORE bearing registration No.AJD-754., Model 2005 Engine No.R- 027180 Chassis No.L-501S-7526868 [subject vehicle] from one Allauddin and was subsequently registered in the name of the petitioner. After registration of the subject vehicle in the petitioner's name when the petitioner approached the Excise and Taxation Authority (respondent No.4) for depositing the tax of the vehicle, he came to know that the entry of the subject vehicle still exists in the name of the previous owner namely, Allauddin. Upon coming to know this fact, the petitioner immediately approached the registering authority and requested them to make necessary entry in their computer in respect of change of ownership of the subject vehicle in the name of the petitioner as the department has already issued him the registration book which clearly reflects the name of petitioner as owner of the subject vehicle, however, the registering authority refused to make the said entry on the ground that they have received a letter from Anti-Narcotics Force whereby registering authority was informed that no sale/transfer is allowed in respect of the subject vehicle as Mr. Allauddin is involved in Crime No.231/2014 Police Station ANF Clifton Karachi.
The petitioner having no other efficacious remedy filed the present petition.
3. Upon notice of the present petition, respondents Nos.3 and 4 filed their respective comments.
4. The Respondent No.3 in its comments while raising preliminary objections regarding the maintainability of the present petition has stated that during the inquiry/investigation against one accused namely Allauddin Khan son of Jalaluddin Khan, involved in FIR No.31/2014, PS ANF Clifton, AD Assets/Investigation had issued letter No.KCA/711/ Assets/ANF/2014-3671 on 12.11.2014 to the Director Motor Registration Wing, Excise and Taxation Department Karachi and in reply thereof, the Assets Branch ANF RD Sindh received a letter No.DDC/MR/8419 dated 24.11.2014 from Deputy Director (Computer) Motor Registration Wing, Karachi, along with a print out of vehicle No.AJD-754 showing the ownership of the subject vehicle in the name of accused Allauddin till 24.11.2014. It is further stated that accused Allauddin Khan was acquitted by CNS Court-II, vide order dated 10.09.2016 and at present Criminal Acquittal Appeal No.95 of 2017 (State versus Allauddin Khan) is pending before this Court. Hence, above said vehicle is part and parcel of pending appeal and further investigation is continued and release of vehicle shall badly and adversely affect the case of prosecution.
5. The respondent No.4 in its para wise comments also raised the question of maintainability of the petition as the petitioner without availing the remedy available under sections 34/35 (c) and 36 of Motor Vehicles Ordinance, 1965 and to file an application before the Registering Authority and appeal before the Director Excise, Taxation and Narcotics, filed the present petition, hence the same is not maintainable. It is stated in the comments that subject vehicle was applied for transfer on 13.10.2014 instead of in the year 2005, the Registration Certificate was issued provisionally and the confirmation of the transfer was not made for want of approval of the department. It is also stated that Deputy Director (Assets), Government of Pakistan, Ministry of Interior and Narcotics Control, Regional Directorate, Anti-Narcotics Force sent a most immediate letter bearing No.KCA/711/ Assets/ANF/2014/2378 dated 21st December 2015 with the request that the vehicle AID 754 not to be transferred without prior permission from their office, therefore, the remarks of safe custody were made in the computer data base.
6. We have heard the counsel for the petitioner as well as learned Special Prosecutor ANF and learned Addl. A.G and perused the material available on record.
7. From the perusal of the record it appears that the petitioner had purchased the subject vehicle from one Allauddin Khan son of Jalaluddin Khan in the month of October 2014 and subsequently applied to the Registering Authority (respondent No.4) for transfer of the subject vehicle in his name. Upon receiving the application of the petitioner, the respondent No.4 transferred the said vehicle in the name of the petitioner and issued a registration book bearing the name of the petitioner as owner of the property, but the said transfer could not be entered into the computer of Motor Registration Wing Karachi. The respondent No.4 in its comments has candidly admitted the fact that it had received the application from the petitioner for transfer of the subject vehicle on 13.10.2014 whereas the FIR bearing No. 31/2014 was registered against the previous owner of the vehicle, namely, Alauddin Khan on 28,10.2014. Furthermore, the record also reveals that respondent No.4 received the letter from the ANF in the month December 2015, approximately more than 13 months after the purchase of the subject vehicle by the petitioner. During the course of the arguments the officers of respondent No.4, who were present in the Court, have admitted the fact that the subject vehicle was registered in the name of the petitioner after completing all codal formalities, however, the relevant entry in the computer could not be made due to the letter of the respondent No.3.
8. Learned special prosecutor ANF, upon query of the Court, has conceded the fact that the subject vehicle is neither involved in the crime nor is the case property. Furthermore, the para-wise comments of respondent No.3 also states that Mr. Allauddin khan has been acquitted by CNS Court-II vide order dated 10.09.2016, but the State has filed Criminal Acquittal Appeal, which is pending adjudication before this Court. It is settled proposition of law that when an accused is acquitted by a competent Court of law after facing the agonies and ordeal of a protracted trial, then he earns the presumption of double innocence which cannot be disturbed by the appellate Court unless it is established through cogent and tangible evidence available on record that such acquittal is fanciful, erroneous or has resulted into grave miscarriage of justice. Reliance in this regard can be placed in the cases of Ghulam Sikandar v. Mamraz Khan and others (PLD 1985 SC 11), Barkat Ali v. Shaukat All and others (2004 SCM R 249) and Captain Abdul Rahim v. Naeem SaRar and others (2009 SCM R 288).
9. As regards the question of maintainability of the petition is concerned, it is now a well settled law that where alternate remedy was not equally efficacious or speedy or where a statutory functionary acted malafidely or in a partial, unjust and oppressive manner, which on the face of it, is patently, illegal or without lawful authority or suffered from such legal infirmity which is patent on the very face of the impugned order/action, the High Court, may, inspite of existence of alternate remedy, exercise its jurisdiction under Article 199 of the Constitution and may grant relief to an aggrieved party. In this regard reliance can be placed on the cases of Messrs Ocean Pakistan Limited v. Federal Board of Revenue, Islamabad and others (2012 PTD 1374), and Commissioner of Income Tax v. Eli Lilly Pakistan (Pvt.) Ltd. (2009 SCM R 1279) wherein the Hon'ble Supreme Court while discussing the general rule and exception for exercise of constitutional jurisdiction by High Court has held under:-- "tendency to bypass the remedy provided in the relevant statute and to press into service constitutional jurisdiction of the High Court was to be discouraged though in certain cases invoking of such jurisdiction instead of availing the stately remedy was justified" has approved the same by further holding that "when the impugned order/action was palpably without jurisdiction and/or mala fide, forcing the aggrieved person in such a case to approach the forum provided under the relevant statute, may not be just and proper". It is further held in the judgment (supra) that "where a statutory functionary acted in mala fide or in a partial, unjust and oppressive manner, the High Court in exercise of its writ jurisdiction had power to grant relief to the aggrieved party": 10.Reverting back to the case in hand, the impugned action of the respondent No.4 for putting the record of petitioner's subject vehicle in safe custody status, on the basis of letter of respondent No.3, and not making necessary entry in its computer in respect of change of ownership of the subject vehicle in the name of petitioner appears to be illegal, specially when ownership right of the subject vehicle was created much prior to the lodging of FIR against the previous owner of the vehicle (Allauddin Khan) from whom the petitioner had purchased the subject vehicle.
Furthermore, the respondents cannot put a clog on the petitioner's property (subject vehicle) on account of any subsequent act of the previous owner of the said property after the said transaction. It was the duty of the Motor Vehicle Registering Authority to make necessary changes in its computer soon after the subject vehicle was registered in the name of petitioner in the month of October 2014, however, due to inaction of the said Authority, the relevant entries in respect of change of ownership of the subject vehicle in the name of petitioner could not be made in the computer, for which no liability cast upon the petitioner.
11. The upshot of the above discussion is that the impugned action of respondent No.4 for putting the record of petitioner's subject vehicle in Safe Custody Status and not making necessary entry in its computer system in respect of change of ownership of the subject vehicle in the name of the petitioner being patently illegal, in violation of law and having been done in excess of Authority, hence the same is untenable in the eye of law. Consequently, we allow this petition directing the respondent No.4 to remove the Safe Custody Status forthwith and to make Necessary Entry in its Computer System in respect of change of the ownership of the subject vehicle in the name of petitioner.
Foregoing are the reasons for our short order dated 08.06.2017, whereby the petition was allowed.