Supreme Court directs provinces, ICT to consider amending MVO

ISLAMABAD: The Supreme Court has directed the provincial governments and chief commissioner Islamabad Capital Territory (ICT) to consider amendment(s) to the Motor Vehicles Ordinance (MVO) 1965 and the rules thereunder to prevent registration of vehicles involved in crime.

A three-member bench of the apex court, headed by Justice Manzoor Ahmad Malik, released a detailed judgment in an appeal filed against the judgment of Lahore High Court in a criminal petition of Amjad Ali Khan verses the state.

Justice Sardar Tariq Masood and Justice Syed Mansoor Ali Shah were the other bench members. The judgment, authored by Justice Syed Mansoor Ali Shah, also directed that the provincial governments and ICT may consider that the Motor Registration Authority and the police develop an online verification system to identify vehicles involved in the commission of crime.

“The transferor/transferee at the time of registration of the vehicle may be required to obtain a No Objection Certificate from the police or to submit an affidavit to the effect that the vehicle is not involved in any criminal case”, says the verdict.

The court found the order of the trial court whereby the petitioner had been allowed superdari of the vehicle not sustainable under the law and held that the high court had rightly set aside it.

“We uphold the impugned order, decline leave and dismiss this petition, with the direction to the provincial governments and ICT, Motor Registration Authority and the police”, the detailed judgment ruled.

The court held that the requirement of Section 27 regarding physical verification of vehicle prior to registration was an essential requirement and was fully applicable to subsequent registrations of vehicles under Section 32 of MVO.

“We, therefore, refer the matter relating to the registration of the vehicle in favour of the petitioner dated 21.01.2016 to the concerned Motor Registration Authority for necessary action under the law”, the court ruled.

The court noted that it saw no reason why the process of registration of a vehicle provided under Section 27 be any different for the vehicle being registered subsequently in the name of a new transferee and for any further transfers.

The court held that the importance of physical verification remained equally important in subsequent transfers, as had come to surface in the instant case, where a vehicle allegedly involved in the commission of a crime, which had been seized by the police and was a case property in a criminal case, was registered in the name of the petitioner on the basis of wrongful assumption that the transfer or holds an absolute legal title of the vehicle and was in lawful possession of the same.

The court observed that the application for registration (Form F) or the application for transfer of ownership rests upon a fundamental assumption that the vehicle is in lawful ownership and possession of the owner of the vehicle.

In order to effectively regulate the vehicles under MVO, physical verification of the vehicle at the time of registration and its subsequent registration is critical and is also in the public interest besides advancing the purposes of MVO. Physical verification of the vehicle also helps actualize Sections 34 and 35 of MVO dealing with suspension and cancellation of registration of the vehicle.

The court directed its deputy registrar at the Lahore Branch Registry to send a copy of its order to the secretaries, Excise & Taxation Departments of all the provincial governments and director Excise & Taxation Department, ICT, as well as, Inspectors General Police of the respective governments, for information and appropriate action at their end.

As per the case, the police upon a spy information conducted a raid by intercepting a vehicle, i.e. Toyota Corolla bearing registration No. UH 608 (the “Vehicle”) and apprehended its two passengers.

The police allegedly recovered narcotics and weapons from the vehicle, as well as, from the passengers. In this background, a criminal case (FIR No. 397) was registered against the two passengers at Police Station Mustafabad, District Lahore on 20.08.2015 under the provisions of the Control of Narcotics Substances Act, 1997 (the “CNSA”) and the Arms Ordinance, 1965.

The police also seized the vehicle the same day. According to the report submitted before this court by the Additional Sessions Judge, Lahore dated 24.11.2018, the trial of the case is pending adjudication and the Additional Prosecutor General has not stated otherwise.

Later, during trial, the petitioner, claiming himself to be the “owner” of the vehicle and not being an accused in the case, submitted an application to the trial court on 20.11.2015 for release of the vehicle to him on superdari.

The petitioner asserted in the application that he was the owner of the vehicle and if the vehicle was not handed over to him he would suffer an irreparable loss; besides, there was a probability that the vehicle may suffer damage in the possession of the police.

The trial court allowed the application for superdari vide order dated 18.12.2015 with the direction to hand over the custody of the vehicle to the petitioner. The state, however, challenged the order in an appeal before the High Court. As the vehicle had not been released, the petitioner also filed a writ petition praying that the police be directed to hand the vehicle over to him in compliance with the order of the trial court.

The High Court allowed the appeal of the state and dismissed the writ petition filed by the petitioner vide impugned consolidated order dated 30.10.2017, on the ground that the petitioner could not establish his ownership of the vehicle on the basis of an open transfer letter.

The detailed judgment noted that an applicant must be the owner of the vehicle prior to the commission of the offence. It observed that the registration certificate of the vehicle showed that the original owner of the vehicle was Muslim Khan, who sold the vehicle to Asif Kamal and then finally the vehicle was transferred in the name of the petitioner on 21.01.2016.

The court noted that Asif Kamal was the owner of the vehicle at the time of the offence, but did not approach the court to seek release of the vehicle.

The court observed that on 20.08.2015, when the petitioner made an application for superdari of the vehicle, he was not the owner of the vehicle and, therefore, does not pass the requirement laid down in proviso to Section 32 of CNSA.

“Further, the petitioner did not assert a word, in the application, to show that he was not an associate or relative of the accused or an individual having any nexus with the accused or the offence”, says the detailed verdict adding that his failure to explain how the vehicle, whose ownership he claims, had gone into the possession and use of the accused was fatal to his prayer for superdari of the same.

“As the petitioner has failed to establish his ownership of the vehicle, we see no reason to burden the prosecution to show if the petitioner was aware of the commission of the offence”, the court held and ruled that the application made for release of the vehicle by the petitioner was, therefore, not maintainable, and was wrongly allowed by the trial court.