' Anita HUSSAIN, C. J.-Objections were called from public in regard to the vires of the Motor Vehicles Act, 1939 and the Baluchistan, N.-W. F. P., Punjab and Sind Motor Vehicles Ordinance, 1965 vis-a-vis the holy Qur'an and the Sunnah of the holy Prophet. Mr. Abdul Malik Irfani, Advqcate, Member Council of Islamic Ideology in his comments stated that no provision of the Act is repugnant to the holy Qur'an and the Sunnah. He has discussed the legality of the provisions about insurance in the light of Sharia but this point is not relevant for the purposes of this Court since its jurisdiction does not extend to insurance.
2. The Act of 1939 was repealed by the Ordinance of 1965 except to the extent of Chapters 7th and 8th and section 125. Chapter 7th of the Act of 1939 deals with the rule making powers of the Government. Chapter 8th deals with insurance while section 125 provides for punishment for driving an uninsured Motor Vehicle in contravention of the provisions of section 94 which is in Chapter 8. There is nothing in Chapter 7 which may be treated to be in any way repugnant to Sharia. Chapter 8 and section 125 are beyond the ambit of the jurisdiction of this Court and consequently these provisions have not been considered.
' Another comment was received from the Pakistan Motor Transport Federation, Badami Bagh, Lahore. It appears that the main objection is to the provisions of section 67 of the Ordinance of 1965 which provides for compensation to be paid by the holder of a route permit or in case no permit is granted, by the owner of the stage-carriage, in case of death or injury to a passenger (including the driver) of a stage or contract carriage, other than a contract carriage constructed, adapted or used to carry out not more than six passengers, arising out of the use of such carriage. The compensation payable is the one specified in the 13th schedule and is payable in the case . Of death of a passenger to his legal representatives and in case of injury to a passenger, to the injured passenger. The objection is that in case of accident the party responsible for accident should be made liable and not an innocent party. The second objection is about Chapter VIII pertaining to offences and it is urged that the owner of the vehicle should not be, held responsible for any omission or commission of the drivers and the conductors. The third objection is that all the orders under the Motor Vehicles Ordinance should be made appealable since the concept of appeal is universal to all civilized legal systems and the bar of the jurisdiction of the Courts in section 66(3) is most unwholesome since the Regional Transport Authority have a bias in favour of departmental officers. However, none of these objections are supported by any verse of the holy Qur'an or any Hadis.
4. The question of appeal or bar of jurisdiction does not pertinently raise any objection of which we can take note of. However the Ordinance does provide for appeals against relevant orders and decisions and the authorities seized of the matter are better equipped with the knowledge of the working of the Transport business and are in a better position to act as appellate authority. No point of repugnance with Sharia arises in this respect.
5. No particular provision in Chapter VII to which the second objection pertains has been pointed out. However the regulation of Transport business by licensing requires that the Permit Holder must insure the running of the business in accordance with the conditions of the license. There must be sanction for the achievement of this object which is inter alia provided by Chapter VIII. There is nothing in that chapter on this point which may be deemed to be repugnant to the Sharia.
6. We have very carefully considered the vises of section 67 of the Ordinance. Section 50 provides for insertion of a condition in every stage carriage, permit for such compensation as is payable in case of death or injury of a passenger, by the permit holder, and is provided in the 13th Schedule.
Section 53(2) provides for insertion of a similar condition in every contract carriage permit. The issuance of permit, therefore, is subject to the agreement of the applicant for permit to undertake the liability to pay compensation as provided in section 67. There is no compulsion on any person to apply for such permit. Before applying for it he has been put on an inquiry by the law whether the business of transport will in view of this provision, be profitable to him or not.
7. The applications for permit submitted despite this provision prove that the business is so profitable that such compensation may be paid by the permit holder.
8. The matter can be looked at in two other manners also. This provision does not affect a person's right to take proceedings under the Fatal Accidents Act or in tort against the person responsible for any accident which causes the death or injury to a passenger. It is merely a compensation payable to a passenger in order to alleviate immediately the suffering of the family of the deceased or of an injured person by helping them financially. Looked in this light it is a salutary provision introduced in the public interest and for the good of the travelling public. Secondly it also puts the owner and driver of the vehicle to more caution so that as far as possible the transport business may be accident free. The Government has the right not only to regulate such business as the transport business in public interest but also to make laws for the greater benefit of the customers or other members of the public affected by such business. We do not find any ground to interfere with this provision.
9. Apart from those portions of the Motor Vehicles Ordinance, 1965 and the unrepealed portion or the Motor Vehicles Act, 1939 which relate to insurance and to which we have not adverted on account of bar of jurisdiction, we, do not find any provision of these laws, except two and those also in the Motor Vehicles Ordinance, 1965 which attract the principle of repugnance with Sharia. The first provision is of section 72 and the others of section 117.
10. Section 72 of the Ordinance of 1965 deals with power of the Road Transport Corporation to acquire property, immovable, used in, or for, or ancillary to, the operation of any Motor transport conducted by the Corporation. It is provided that the acquisition may be made by serving a notice of acquisition on the owner of the property, or if such owner is not readily traceable or the ownership is in dispute, by a notice of acquisition published in the official Gazette and shall take effect from the beginning of the day on which the notice is served or published. For such acquisition there shall be paid compensation to be calculated in such manner as Government may prescribe and in case of dispute in regard to the amount of compensation it shall be referred to the arbitration and the award of the arbitrator shall be final and shall not be questioned in any Court.
11. There can be no objection about conferment of right of acquisition of property for the purpose laid down in the section but the Corporation being a commercial organisation it must pay full compensation according to the market value. 1 he principle of payment of compensation to this basis is provided for but the manner of calculation is the one which may be prescribed by the Government.
12. This manner is provided in rule 149(a) of the Motor Vehicles Rules, 1949. The market value of land is determinable according to this rule on the basis of genuine mutations of land or registration of sale of land similarly situated and in similar use during the period of 12 months preceding the date of acquisition. But the superstructure on the land is to be assessed in accordance with the P. W. D.
Manual minus the depreciation calculated at 2 1/2 per cent. ; 6 per cent. And 7i per cent. Annually for 1st, 2nd and 3rd class construction, respectively, from the date of its completion.
13. Since the calculation on the basis of P. W. D. Manual minus the depreciation may be much less than the actual market value of the property. This method of calculation is most arbitrary and amounts to forfeiting the property of the owner without fully compensating him. This is contrary to the Qur'anic injunctions in relation to sanctity of private property.
4 : 2 Exchange not the good for the bad (in your management thereof) nor absorb their wealth. Lo!
That would be great sin.
2 : 188 And eat not up your property among yourselves in vanity.
' See also Hafiz Muhammad Amin v. Islamic Republic of Pakistan in which at p. 66 it was laid down that " the payment of full compensation which should be equal to the market value of the land, should be the rule".
14. Section 100 provides for offence of driving under the influence of drink of drugs. The offence is punishable with imprisonment for a term which may extend to six months or with fine which may extend to 1,000 rupees or with both. It also provide for a higher punishment for subsequent offence.
15. Section 177 places certain restrictions on conviction of a person committing an offence under section 10) and provides that no person prosecuted in an offence punishable inter alia under section 100 shall be convicted unless :
(a) he was warned at the time the offence was committed that the question of prosecuting him would be taken into consideration ; or
(b) within fourteen days from the commission of the offence, a notice specifying the nature of the offence and the time and place where it is alleged to have been committed was served or sent by registered post to him or the person registered as the owner of the vehicle at the time of the offence ; or
(c) within twenty-eight days from the commission of the offence, a summon for the offence was served on him : Provided that nothing in this section shall apply where the Court is satisfied that-1
(a) the failure to serve the notice or summons referred to in this subsection was due to the fact that neither the name and address of the registered owner of the vehicle could with reasonable diligence have been ascertained in time ; or
(b) such failure was brought by the conduct of the accused.
16. Drinking and use of drugs both are prohibited in Sharia and for this reason Prohibition (Enforcement of Hald Order) No, IV of 1979 was enforced on the 9th of February, 1972. This question has been discussed in detail by this Court in Nosher Rustam Sidhwa v. Federation of Pakistan . A person who in addition to contravening the Qur'anic Injunctions and the provision of the President's Order No, 1V of 1979 also drives a vehicle under the influence of drink or drugs and endangers the life and the property of the citizens must be awarded exemplary punishment but section 117 puts a premium on the use of liquor and drugs and provides for an absolutely B uncalled indulgence or favour for the offender. This is certainly repugnant to the Injunctions of the holy Qur'an and the Sunnah of the holy Prophet I regard to the use of drugs and liquor. Section 117, therefore requires to be amended by deletion of the following words : "Or section 100" from its opening sentence.
17. We therefore, direct that in section 72 the words "to be calculated in such manner as Government may prescribe" be deleted. We also direct that the words "or section 100" be deleted from the opening line of section 117 of the Motor Vehicles Ordinance, 1965. These amendments shall be made by the 31st of December, 1982.
PLD 1981 SC 23 PLD 1981 F SC 245