SHAFIUR RAHMAN, J.---Leave to appeal was granted in these three matters as a question of general public importance was raised with regard to the scope and interpretation of Rule 218 of the Motor Vehicles Rules, 1969 for which an authoritative pronouncement of this Court was considered necessary.
2. Three separate Constitution petitions were filed by the Advocate practicing in the High Court.
Their grievance was that they had parked their cars in various areas of Karachi which were not earmarked as 'No Parking' Zones The cars so parked by them presented no obstruction or hazard to the traffic or to the public. When they returned to pick up their cars, they found it removed and with great difficulty were able to trace them in police stations. The explanation for it was that the Police had got it forklifted. The release of the cars could be obtained only after paying by each one of them Rs,100 for the cost of lifting and removal of the cars from the place they were parked to the police station, and after paying Rs,20 in each case as fine for violating the traffic laws with regard to parking. They challenged this action of removal of their vehicles and of charging them for it as without lawful authority, in the Constitutional jurisdiction of the High. Court.
3. The High Court dealt with the entire controversy without deciding the factual one, as hereunder:- "The learned Additional Advocate-General who has appeared on behalf of the respondents alongwith Mr. Habibur Rashid, Advocate, has not been able to provide any satisfactory explanation to the queries made by us in this regard. His only contention was that since the said rule authorises a police officer to remove a moter vehicle which is causing undue obstruction or danger, the power to remove such vehicle will also include the power to remove the same by a forklift to the nearest police station. We are unable to accept this contention because rule 218 does not even remotely suggest that exercising of such power by the traffic police is permitted. All that the rule authorises a police officer to do is to move the motor vehicle under the circumstances referred to in clause (1)
(a) of the said rule, to the nearest place where the vehicle will not cause any undue obstruction or danger. Needless to say, that removal of a motor vehicle to the nearest place cannot be the same as its removal to the nearest police station. No doubt, if a motor vehicle is parked in an area which is or has been declared as a no parking zone, the offender can be prosecuted for such violation, but any further action by removal of the vehicle to any police station could not be warranted by law, unless there are circumstances to attract the provision of Rule 218(1)(c) which admittedly was not the case in the present case. We are, therefore, of the view that the action taken by the traffic police was without lawful authority. Since the action taken by the police was not warranted by law, the taking of Rs,100 from the petitioner for safe custody of the motor car was also without lawful authority.
' In the result, these petitions are allowed. However, since the motor vehicle in respect of which the grievance arose have already been handed over to the petitioners, the charges of Rs,100 taken from each of the petitioners, being not justified, shall be liable to be returned to the petitioneRs,"
4. After hearing the learned counsel for the parties and respondent in C.A. 685/92 in person we have found that there appears to be some misconception on the part of the public functionaries with regard to their powers and obligations under the Constitution and the law. Article 4 of the Constitution provides as hereunder:-- "4. Right of individuals to be dealt with in accordance with law. Etc.--(1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan.
(2) In particular--
(a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law;
(b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and
(c) no person shall be compelled to do that which the law does not require him to do."
5. This salutary provision of the Constitution, so unequivocally expressed, obliges the person interfering with the property of any other person under the cover of law to explain and satisfy the Court with regard to its validity and propriety both procedural and substantive. It is clear to us that in discharging this duty the appellants pleaded Rules 218 of the Motor Vehicles Rules, 1969 read with section 82 of the Motor Vehicles Ordinance, 1965. These are reproduced hereunder:-- "218. Vehicle abandoned on the road.--(1) If any motor vehicle is allowed to stand in any other place than a duly appointed parking place in such a way as to cause obstruction to traffic or danger to any person, any police officer m ay--
(a) forthwith cause the vehicle to be moved under its own power or otherwise to the nearest place where the vehicle will not cause undue obstruction or danger;
(b) unless it is moved to a position where it will not cause obstruction or danger take all reasonable precautions to indicate the presence of the vehicle; and
(c) if the vehicle has been stationary in one place for a continuous period of twenty-four hours and adequate steps have not been taken for its repair or removal by the owner or his representative, remove the vehicle and its contents to the nearest place of safe custody.
(2) If a motor vehicle has been stationary in a duly appointed parking place for a period exceeding that specified by competent authority in respect of the said place, or, if no such period has been specified, for a period exceeding six hours, any police officer may remove the vehicle to the nearest place of safe custody.
(3) Notwithstanding any fine or penalty which may be imposed upon any person upon conviction for the contravention of the provisions of the section 82, or of any regulation made by a competent authority in relation to the use of duly appointed parking places, the owner of the motor vehicle or his heirs or assignees shall be liable to make good any expense incurred by any police officer in connection with the moving, lighting, watching or removal of a vehicle or its contents in accordance with sub-rules (1) and (2); and any police officer, or any person into whose custody the vehicle has been entrusted by any police officer shall be entitled to detain the vehicle until he has received payment accordingly and shall upon receiving such payment, give a receipt to the person making the payment."
Section 82: "82. Duty to obey traffic signs.--(1) Every driver of a motor vehicle shall drive the vehicle in conformity with any indication given by a mandatory traffic sign and in conformity with the driving regulations set forth in the Tenth Schedule, and shall comply with all directions given by any electrical traffic signalling device or by any police officer engaged in the regulation of traffic in any public place.
(2) In this section 'mandatory traffic sign' means traffic sign included in Part A of the Ninth Schedule, or any traffic sign of similar form (that is to say, consisting of or including a circular disc displaying a device, word or figure and having a red ground border) erected for the purpose of regulating motor vehicle traffic under subsection (1) of section 79."
6. The power conferred by Rule 218 of the Motor Vehicles Rules is remedial and preventive. It is not punitive. If a vehicle is parked in a 'No Parking' Zone and presents no threat to public or the traffic then the only scope left for the traffic police is to challan the derelict for violation of the rules. It is only when the vehicle so parked, whether in a 'No Parking' Zone or elsewhere, presents a threat or is a hazard to public or to traffic convenience that a power of remedying that inconvenience and of preventing its continuance is provided in Rule 218 of the Motor Vehicles Rules. The power extends to forthwith causing the vehicle to be moved under its own power or otherwise to the nearest place where the vehicle will not cause undue obstruction or danger. The safe custody of the vehicle, its removal to a police station is all not provided for in the Rules. The distinction between the meaning of "moving a thing" and "removing a thing" should be clear to the traffic police. The idea is to move the vehicle so as to remove the obstruction to traffic or danger to any person. It is for the appellants under the Constitutional mandate to show that in taking the vehicle to the police station this requirement was literally satisfied. It is not the contention of the appellants that there was no convenient and proper place nearer the spot from where these vehicles were removed. In the absence of it the responsibility would be entirely of the appellants. It is only when the shifting of the vehicle is in accordance with rules that charges for its reimbursement can be levied under sub-rule
(3) of Rule 218 of the Motor Vehicles Rules.
7. It is not the contention of the appellants that without conviction of the respondents any fine whatsoever could be levied and recovered by the Police on its own authority. This is, what the High Court has itself found. It is surprising that such a malpractice should take place or continue in spite of the Rules being so explicit and the traffic staff being looked after and managed at so many levels of control and authority. For establishing rule of law in the country, it is necessary that those possessed of power and conferred with authority should acquaint themselves with the limits of their authority and that such control should be exercised and supervised continuously by everyone concerned in the matter and at all levels.
8. By West Pakistan Motor Vehicles (Amendment) Ordinance XII of 1969, section 116-A was added in the Motor Vehicles Ordinance, which permitted after it has been applied to an area by a notification a system of ticketing and a fine of Rs,20 by a Police Officer, but it was restricted to offences specified in the Fifth Schedule. The offence complained of against the writ petitioners was one and of those contained in the Fifth Schedule. Besides, there is no indication that extension of section 116-A to Karachi local area had taken place by a notification as provided by that very section.
9. No merit is found in the appeals which are hereby dismissed.