TARIQ SALEEM SHEIKH, J. Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the Petitioner challenges the detention of Bus No.LRC-3155 by Respondents No.3 & 4 and seeks its release.
2. Brief facts of the case are that the Petitioner is a transporter and owns Bus No.LRC-3155 which plies from Lahore to Darman via Zafarwal. Allegedly , on 2.2.2020 its driver Muzammil Hussain while driving it rashly and negligently rammed into the car of Respondent No.5 within the remit of Police Station Laisser Kalan. On 10.2.2020 Respondent No.5 got FIR No.31/2020 registered under Sections 279, 427 & 337-G PPC against Muzammil Hussain and the same day the police seized the above-mentioned bus. The Petitioner alleges that Respondents No.3 & 4 took the bus into custody on 6.2.2020 prior to the registration of FIR and on 10.2.2020 prepared a Recovery Memo to regularize the seizure. The Petitioner states that it has approached Respondents No.3 & 4 time and again for return of its vehicle but they have refused. Hence, this petition.
3. The learned counsel for the Petitioner contended that the accident took place due to the negligence of Respondent No.5 and not because of rash driving of Muzammil Hussain. Even if the contents of the FIR were assumed to be correct, the Respondents could prosecute Muzammil Hussain but the police had no authority to detain the bus. The learned counsel referred to Section 95 of the Punjab Motor Vehicles Ordinance, 1965 (the "Ordinance"), and argued that when any accident occurs in which a motor vehicle is involved only a person duly authorized by the Government can inspect it and if he removes it to some other place he must return it to the owner without unnecessary delay which should not in any case exceed 48 hours. He prayed that this petition be accepted and the bus be released to the Petitioner .
4. The learned Additional Advocate General controverted the above contentions. He contended that the bus was used for the commission of offence so no exception could be taken to its seizure. He submitted that FIR No.31/2020 had been registered in respect of the occurrence and the Petition er should move the concerned Magistrate for its superdari. According to him, this constitutional petition was not maintainable and prayed for its dismissal.
5. The learned Deputy Prosecutor General and the learned counsel for Respondent No.5 adopted the arguments of the learned Additional Advocate General.
6. Arguments heard. Record perused.
7. I first take up the objection relating to maintainability of this petition. It is true that the High Court does not entertain constitutional petition when other appropriate or suitable remedy is available under the law. However , the question of adequacy is not a rule of law barring or limiting jurisdiction of the High Court. "Rather it controls and regulates the same where order , act or omission of a functionary appears to be autocratic, capricious or tends to defy mandatory pre-condition for exercise of authority or suffers from total lack of jurisdiction or indicates exercise of assumption of authority which evidently does not vest in it or reflects patent illegality whereby alternate remedy does not seem to be effective or efficaci ous." In Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others (2011 SCMR 1813 ), the Hon'ble Supreme Court of Pakistan laid down the following guidelines for the High Courts to determine whether the alternative remedy is adequate or not: "(i) If the relief available through the alternative remedy in its nature or extent is not what is necessary to give the requisite relief, the alternative remedy is not an "other adequate remedy" within the meaning of Article 199.
(ii) If the relief available through the alternative remedy , in its nature and extent, is what is necessary to give the requisite relief, the "adequacy" of the alternative remedy must further be judged with reference to a comparison of the speed, expense or convenience of obtaining that relief through the alternative remedy with the speed, expense or convenience of obtaining it under Article 199. But in making this comparison, those factors must not be taken into account which would themselves alter if the remedy under Article 199 were used as a substitute for the other remedy .
(iii) In practice the following steps may be taken:
(a) Formulate the grievance in the given case as a generalized category;
(b) Formulate the relief that is necessary to redress that category of grievance;
(c) See if the law has prescribed any remedy that can redress that category of grievance in that way and to the required extent;
(d) If such a remedy is prescribed, the law contemplates that resort must be had to that remedy;
(e) If it appears that the machinery established for the purposes of that remedy is not functioning properly , the correct step to take will be a step that is calculated to ensure, as far as lies in the power of the Court that that machinery begins to function as it should. It would not be correct to take over the function of that machinery . If the function of another organ is taken over, that other organ will atrophy and the organ that takes over will break down under the strain;
(f) If there is no other remedy that can redress that category of grievance in that way and to the required extent or if there is such a remedy but conditions are attached to it which for a particular category of cases would neutralize or defeat it so as to deprive it of its substance, the Court should give the requisite relief under Article 199;
(g) If there is such other remedy , but there is something so special in the circumstances of a given case that the other remedy , which is generally adequate to the relief required for that category of grievance, is not adequate to the relief that is essential in the very special category to which that belongs, the Court should give the required relief under Article 199.
(h) If the procedure for obtaining the relief by some other proceedings is too cumbersome or the relief cannot be obtained without delay and expense or the delay would make the grant of the relief meaningless, High Court would not hesitate to issue a writ if the party applying for it is found entitled to it, simpl y because the party could have chosen another course to obtain the relief which is due."
8. This case involves interpretation of law for which these proceedings are the most appropriate. An application under Section 516-A Cr.P.C. suggested by the learned Additional Advocate General is neither an alternate nor adequate nor ef ficacious remedy . Therefore, I hold this petition maintainable.1
9. The prosecution case is that on 2.2.20 20 Respondent No.5 was travelling with his family in Suzuki Mehran Car No.LEH-16-3678. At about 10:00 a.m. when he reached Laisser , Bus No.LRC-3155 driven by Muzammil Hussain collided with him. As a result, he was injured and the car was badly damaged. It is alleged that the accident took place because of rash and negligent driving of Muzammil Hussain. Respondent No.5 lodged FIR No.31/2020 in respect of the incident under Sections 279, 427 & 337-G PPC. At this stage I would not comment on the applicability of Section 427 PPC as it may cause prejudice to either party but I do observe that Sections 279 and 337-G apply to two different situations. An offence under Section 279 PPC is committed where the rash and negligent driving or ride on a public way endangers human life but when such driving causes hurt or injury to a person Section 337-G is attracted. These are two distinct offences although they form part of the same transaction.
Hence, Sections 279 and 337-G PPC cannot be invoked simultaneously . Reliance is placed on Muhammad Hanif v. The State (1984 PCr.LJ 746), Badshahzada v. The State (1993 PCr.LJ 699), and Haris Khan v. The State (PLD 1993 Pesh. 146 ).
10. Section 95 of the Ordinance on which the learned counsel for the Petitioner has premised his case reads as under:
95. Inspection of vehicle involved in accident.- When any accident occurs in which a motor vehicle is involved, any person authorized in this behalf by Government may, on production if so required of his authority , inspect the vehicle and for that purpose may enter at any reasonable time any premises where the vehicle may be, and may remove the vehicle for examination: Provided that the place to which the vehicle is removed shall be intimated to the owner of the vehicle and the vehicle shall be returned without unnecessary delay and in no case later than forty-eight hours of its removal."
11. The Ordinance is a special law relating to motor vehicles in the province. Section 95, supra, expressly states that when there is an accident the Motor Vehicle Inspector may inspect the vehicle but it cannot be detained for more than 48 hours and should be returned to its owner . The foremost question before this Court is whether this provision is mandatory .
12. There is no principle of universal appli cation to categorize a provision as mandatory or directory . Maxwell on the Interpretation of Statutes (Twelfth Edition) at p.314 writes: "It is impossible to lay down any genera l rule for determining whether a provision is imperative or directory . `No universal rule?, said Lord Campbell L.C., `can be laid down for the construction of statutes as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of court of justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed?. And Lord Penzance said: `I believe, so far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject-matter , consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory ."
13. Generally speaking, the use of negative expression in statute indicates that the direction is mandatory . In his book Understanding Statutes (Fourth Edition 2016), S.M. Zafar elucidates: "It is a general rule that a statute which is negative or prohibitory , even though it provides no penalty for non- compliance, or which contains pre-emptory and exclusive terms, shows a legislative intent to make the provision mandatory , and it has been said that negative words in a grant of power are neve r construed as directory . On the other hand, while, the use of only affirmative words would require determining whether the statute is mandatory or directory . An intention that it shall be directory is not conclusively drawn from the absence of negative words, since affirmative words may and often do imply , a negative of what is not affirmed. So affirmative words, if absolute, explicit, and pre-emptory , showing that no discretion was intended to be given, render the statute mandatory .
Likewise statute containing directions followed by an express provision that in the event of default act done would be invalid, is construed as mandatory ."
14. A statutory provision fixing time for performance of acts may be either mand atory or directory . According to Corpus Juris Secundum (Volume 82, page 876), the provision is ordinarily held directory where there are no negative words restraining the doing of an act after the specified time and no pena lty is imposed for delay . On the other hand, the provision is generally considered mandatory where consequences attach to the failure to comply , and where the act to be performed conc erns vested rights, procedure or other similar matters. However , in his aforementioned book S.M. Zafar notes that there are certain authorities which hold that "where a statute requires a thing to be done within a certain time limit, it is treated as mandatory because if the only time limit which is prescribed is not obligatory , there is no time limit at all."
15. I have examined Section 95 of the Ordinance in the light of above principles. The Ordinance aims to address all issues relating to motor vehicles in the province while Sections 94, 94-A and 95 specifically focus on road accidents. In law, an accident is an unintended happening though a party thereto may be held liable for negligence.
In certain cases this may entail criminal liability and he may be prosecuted under the relevant sections of the Pakistan Penal Code, 1860. It is true that it is sometimes necessary to determine the condition of the vehicle to fix liability for the accident but this should not give licence to anybody to detain it for an indefinite or unduly long period. Therefore, in my opinion, while enacting Section 95 the legislature recognized the importance of the inspection of vehicle involved in the accident but at the same time desired that the Motor Vehicle Inspector should complete his proceedings expeditiously and thereafter handed it over to the owner. It considered that forty-eight hours are sufficient for this exercise. The phraseology employed in Section 95 - the use of the words "shall" and "in no case later than" - also indicate that the legislature intended the timeline to be meticulously followed.
16. The State and Respondent No.5 rely on paragraph (4) of Rule 22.16 of the Police Rules, 1934, to justify the detention of the bus. It is reproduced hereunder: 22.16. Case property . - (1) ...
(2) ...
(3) ...
(4) Motor vehicles detained or seized by the police in connection with cases or accidents shall be produced before a magistrate after rapid investigation or by means of incomplete challan. The evidence relating to the identity or condition of the vehicle should be led and disposed of at an early date, and the magistrate should then be invited to exercise the discretion vested in him by Section 516-A, Code of Criminal Procedure, to order that the vehicle be made over to the owner pending conclusion of the case on security to be produced whenever demanded by the Court.
17. Rule 22.16 postulates that the motor vehicle detained by the police may be of two types: those involved in accidents and those seized in other cases. Insofar as the first category is concerned, it is dealt with by the Ordinance which is a special law. Since the Police Rules, 1934, are the general law and are in conflict with the Ordinance, the latter would prevail. Reliance is placed on Muhammad Mohsin Ghuman and others v.
Government of Punjab through Home Secretary , Lahore and others (2013 SCMR 85) and Syed Mushahid Shah and others v. Federal Investigation Agency and others (2017 SCMR 1218 ). Therefore, Rule 22.16 is of no avail to the Respondents.
18. Inasmuch as Rule 22.16 makes a specific reference to Section 516-A Cr.P.C., I must also dwell on it briefly . It deals with disposal of property pending trial and reads as under: 516-A. Order for custody and disposal of property pending trial in certain cases . - When any property regarding which any offence appears to have been committed, or which appears to have been used for the commission of any offence is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy or natural decay , may, after recording such evidence as it thinks necessary , order it to be sold or otherwise disposed of.
Provided that...
19. A bare reading of the above section would show that it speaks of two types of properties. They are: properties regarding which any offence appears to have been committed and which appear to have been used for commission of an offence. Bus No.LRC-3155 does not fall in any of these classifi cations. It is by now well settled that where a driver is being prosecuted for causing hurt or death of a person by rash or negligent driving, the vehicle cannot be said to have been "used" for commission of the offence within the meaning of Section 516-A Cr.P.C. In Phula Singh v. Emperor (AIR 1931 Lahore 565), Shadi Lal, C.J. set aside the order of the Magistrate refusing to return the car to its owner . He held: "I think it would be straining the language to hold that the motor car was used for the commission of the offence within the meaning of S. 516-A, Criminal P.C. The ruling in Emperor v. Ilahi Bakhsh [(1904) 4 P.L.R. 1904] , is directly applicable to the case."
20. In Syed Razi Shah v. The State (1971 PCr.LJ 19), a Division Bench of the Karachi High Court interpreted the phrase "property used for commission of an offence" occurring in Section 517 Cr.P.C. and held that it meant things with which the of fence was committed. It explained: "In the Concise Oxford Dictionary the word `use' has been defined to mean, `employ for a purpose'. In this context if the word `property' occurring in the Section 517 is read with the words `used for the commission of any offence', it would clearly mean such property as has been employed in the commission of any offence and that could only imply an `instrument' with which the offence was committed. The vehicle merely used for going to and escaping from the place of incident could not thus be covered within the meaning of the words `property ...used for commission of any of fence."
21. Again, in Rai Bashir Ahmad v. The State (1971 PCr.LJ 255), the Court drew a distinction between custody of crime weapon and other properties like a motor car used as means of transport and observed: "Admittedly gun is property of the petitioner . It is a weapon of offence and his case is obviously distinguishable from any other property such as a motor car or any other means of transport, the driver of which gets involved under section 338 P.P.C. or a hackney carriage whose driver is accused of an offence under section 279 P.P.C. or a ferry used by a criminal for crossing a stream in his attempt to escape from the scene of the crime."
22. In Sheraz Elahi v. The State (1984 PCr.LJ 1935) Mubasher Hussain was convicted for offences under Sections 304, 337 & 279 PPC and the petitioner's wagon which he was driving at the time of accident was confiscated. The High Court set aside the order of confiscation. In Burkamal v. The State (1989 PCr.LJ 1110), the High Court held that the taxi used by the accused for going to and escaping from the place of incident was not covered by the words "which appears to have been used in commission of any offence" in Section 516-A Cr.P.C. It reasoned: "To take a common example, if the culprits escape in a train after commission of offence, the train will not fall within the mischief of the aforesaid words." Similarly , in Rana Muhammad Salim v. The State (1992 PCr.LJ 750) it was held that vehicles detained in the cases involved in road accidents were not the subject-matter of any offence. The applicants, who were the owners of the vehicles, had not done anything to advance commission of the of fence and they could not be held liable for the acts of their drivers under the criminal law .
23. A host of other authorities, including Muhammad Rashid and others v. The State (PLD 1991 Kar. 200), Karachi Bus Owners Association and another v. Inspector-General of Police and 2 others (1995 PCr.LJ 608), Sher Muhammad v. The State (1999 PCr.LJ 2121), Pakistan Motors Transport Federation (Regd.) v.
Federation of Pakistan through Secretary , Ministry of Law & Justice, Islamabad and 3 others (PLD 2004 Lah. 295 ), and Ajjab Khan v . The State (2005 PCr .LJ 1510) reaffirm the above view .
24. From the above discussion it follows that accident cases are governed by Section 95 of the Ordinance and the vehicle must be returned to the owner after inspection without unnecessary delay and in no case later than 48 hours of its removal.
25. In the instant case, the police claim that they took Bus No. LRC-3155 into custody on 10.2.2020 while the Petitioner alleges that it was on 6.2.2020. However , the fact remains that they are still keeping it which is much beyond the prescribed period. If inspectio n by the Motor Vehicle Examiner was required, they ought to have got it done and returned the bus to the Petitioner after 48 hours. Since this has not been done, its current detention is without lawful authority and is declared as such. It is accordingly ordered that the bus shall be returned to the Petitioner forthwith.
26. The learned Additional Advocate General submitted that the Petitioner has made alterations in the bus for which proceedings are liable to be initiated against it. The Petitioner has denied the allegation. This issue involves factual inquiry which cannot be undertaken by this Court while exercising constitutional jurisdiction.
Any way, if the Petitioner has committed any delinquency , the competent authority may proceed against him in accordance with law .
27. This petition is disposed of in the above terms. . Hamid Khan, Principles of Administrative Law , A Comparative Study (2012).