Zahid Khan VS ETO etc

ORDER SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

I.C.A. No.143 of 2021 Zahid Khan Versus Excise and Taxation Officer Islamabad and others S. No. of order Date of order/ Order with signature of Judge and that of parties or counsel / proceedings Proceedings where necessary. 08.03.2021 Sajjad Haider Malik, Advocate for the appellant.

Through the instant appeal, the appellant, Zahid Khan, has impugned the order dated 29.01.2021, passed by the learned Judge-in- Chambers, whereby writ petition No. 3627 of 2020, filed by the appellant was dismissed. In the said writ petition, the appellant had sought direction to respondent No.1 / Excise and Taxation Officer (“E.T.O.”), Islamabad to transfer vehicle bearing registration No. MQ- 019-ICT (“Vehicle in question”) in the appellant’s name.

2.Learned counsel for the appellant submits that the appellant is bona fide purchaser of the vehicle in question; that he had purchased the vehicle against consideration on 11.01.2019; that respondent No.1 vide order dated 16.03.2020 refused to transfer the vehicle in the appellant’s name on the basis of F.I.R.s No. 4 and 5 of 2019 dated 12.01.2019 under section 9- C of the Control of Narcotic Substances Act, 1997, registered at police Station A.N.F. R.D. North Rawalpindi; that the said F.I.R.s had been registered subsequent to the purchase of vehicle in question by the appellant; that the suspension of the vehicle’s registration as well as refusal of respondent No.1 to transfer the

same against appellant’s name are arbitrary and illegal; and that the impugned order has been passed without considering the material facts of the case. Learned counsel for the appellant prayed for the impugned order to be set aside and the writ petition to be allowed in terms of relief sought therein.

3.We have heard the contentions of the learned counsel for the appellant and have perused the record with his able assistance.

4.The record reveals that in writ petition No. 3627/2020, the appellant had challenged respondent No.1’s order whereby the latter had refused to transfer registration of the said vehicle in the appellant’s name. Alongwith the present appeal, the appellant has annexed copy of comments filed by respondent No.1. In the said comments respondent No.1’s version was that last owner of the vehicle in question was respondent No.3 who is an absconder in a narcotics case and the registration of the vehicle has been blocked on the direction of Regional Directorate Anti Narcotic Force. The comments submitted by Anti Narcotic Force/respondent No.2 show that the registered owner of vehicle in question i.e., respondent No.3 is absconder in F.I.R.No.4 of 2019 dated 12.01.2019 registered at police station A.N.F. R.D. Rawalpindi. It has also been mentioned in the said comments that the vehicle in question had been attached under section 8 of the Anti- Money Laundering Act, 2010 (“AMLA, 2010”). Now an order for refusal to register as well as suspension of registration of a vehicle is an appealable order under section 36 of the Provincial Motor Vehicle Ordinance, 1965.

Similarly an order under section 8 of the AMLA, 2010 is subject to a decision by the special Court under section 9 (3-A) of the said Act. Such a decision is further appealable before this Court under section 23 of the AMLA, 2010.

5.An intra Court appeal is competent only in a case in which the statutory remedy of appeal, revision or review is not available at the time of the passing of the original order in the proceedings. Section 3(2) of the Law Reforms Ordinance, 1972, provides that an appeal shall lie to a Bench of two or more Judges of a High Court from and order made by a single Judge of that Court under clause (1) Article 199 of the Constitution not being an order made under sub- paragraph (i) of the paragraph (b) of that clause. The proviso to Section 3(2) is reproduced herein below:- “Provided that an appeal referred to in this sub-section shall not be available or competent if the application brought before the High Court under Article [199] arises out of any proceedings in which the law applicable, provided for at least one appeal [or one revision or one review] to any Court, Tribunal or authority against the original order.”

6.In the cases of Karim Bibi etc. Vs. Hussain Bakhsh etc. (PLD 1984 SC 344), Muhammad Abdullah Vs. Deputy Settlement Commissioner (PLD 1985 SC 107) and Nawazul Haq Chowhan Vs. The State (2003 SCMR 1597), it was held inter alia that if a remedy in the form of an appeal, review or revision was available under the law and despite such fact the remedy was not availed before the filing of a writ petition, the intra Court appeal would not be competent / maintainable against the order of the single

Judge of a High Court. In the instant case, since remedy of appeal is available to the appellant this intra court appeal is not maintainable.

7.In view of the above, this appeal is dismissed being not maintainable. We have refrained from discussing the merits of the case since we have found this appeal not to be maintainable.

(LUBNA SALEEM PERVEZ) (MIANGUL HASSAN AURANGZEB)

JUDGE JUDGE

Sultan*