P L D 1969 Supreme Court 153 (PLP)

MUHAMMAD YAQUB ALI, J.‑

This appeal was heard at: Karachi and disposed of by a short order dated 28th January 1969. We now proceed to give reasons on which the judgment of the Court rests. A number of writ petitions filed in the High Court to challenge the validity of certain simultaneous searches conducted in Karachi by the Customs authorities between the 27th and the 29th of March 1967, at the premises of cloth dealers including Messrs S. M. Yousaf & Brothers, the appellant herein, were heard together by a Division Bench. Both the learned Judges agreed that the searches were illegal, but they differed on the question as to whether the goods so illegally seized should be returned to the appellant. Anwarul Haq J., was of the opinion that they should not be returned as that would prejudice contemplated proceedings under the Sea Customs Act. Faruqui, J., was, on the other hand, of the opinion that the seizure having been found to be illegal the Court had no other alternative but to direct the return of the goods, but he laid down certain conditions for such return. These conditions were as follows :‑ (i) that a complete inventory of the goods should be prepared and be signed by both the claimants and the‑ Customs Collector ; (ii) that each party shall retain one copy of the inventory ; (iii) that it will be open to the Collector to have each of the pieces seized marked in one place by the customs seal or otherwise so as to ensure its identity ; and (iv) that such of the goods as may be directed by the Collector of Customs shall not be sold or disposed of within a period of three months. Because of this difference of opinion the matter was referred to Khamisani, J, who was nominated as a third Judge under clause 26 of the Letters Patent of the High Court. The latter agreed with Faruqui, J., that the goods could not be retained after the seizure had been held to be illegal, but as regards the validity of the conditions laid down by Faruqui, J., he expressed the view that he was precluded from going into this question, as it was not one of the questions referred to him. The final order in the writ petition was then drawn up on the basis of the conditions laid down in the judgment of Faruqui, J. In support of the appeal Mr. Tufailali A. Rehman contended that the High Court had no jurisdiction to impose conditions for the release of the goods after it was found that the goods had been seized illegally. He also complained that he had no opportunity of placing his arguments at any stage against the imposition of conditions which in effect amounted to denial of the right of the appellant to which he had, unanimously by all the three Judges of the High Court, been found to be entitled. It was pointed out by the learned counsel that unlike Article 170 of the 1956‑Constitution which inter alia empowered High Courts to issue : "directions, orders or writs" including writs in the nature of mandamus, prohibition, and certiorari (i) directing a g person performing in the Province functions in connection with the affairs of the Center, the Province or a local authority to refrain from doing that which he is not permitted by law to do, or to do that which he is required by law to do ; or (ii) declaring that any act done or proceeding taken in the Province by a person performing functions in con nection with the affairs of the Center, the Province or a local authority has been done or taken without lawful authority and is of no legal effect, or . . ." By this comparison it was made out that Article 98 confined the jurisdiction of the High Court to giving directions and making declarations for implementing the provisions of the law invoked in a given case while under Article 170 the High Court could give any direction and make any order besides issuing the writs named therein. In other words High Court cannot give a direction which is not specifically provided for in law. Reference was also made to the provisions of Order XXXIX rules 1 and 2, C. P. C. which empower Courts while issuing temporary injunctions "to make such other order" and "may by order grant such injunction on such terms as to duration of the injunction, keeping an account, giving security or otherwise as the Court thinks fit". It was urged that the absence of similar provisions in Article 98 too implied that the jurisdiction of High Court was limited to giving only those directions which are provided for in law. In imposing the conditions complained of Faruqui, J., had in view certain proceedings under the Sea Customs Act which the Department had in contemplation in respect of the goods seized. The conditions were, therefore, imposed so that the order of restoration may not frustrate the con templated proceedings. There are, however, no provisions in the Sea Customs Act under which the Customs authorities could take the action which these conditions provided for. For example that "such of the goods as may be directed by the Collector of Customs shall not be sold or disposed of within a period of 3 months". It was contended that as there is no provision in the Sea Customs Act under which the Collector of Customs could give such a direction to the appellant, the High Court whose jurisdiction in this behalf was confined to directing him "to do that which the law requires him to do" had no authority to impose this condition. The contention raised is plainly correct and there appears to be no escape from the position that the High Court can give only those directions for which provision is made in law. As to the remaining three conditions Mr. Tufailali A. Rehman pointed out that an Inventory of goods was prepared at the time of seizure of goods by the Customs authorities in which full particulars of the cloth pieces are mentioned. Their identity was, therefore, already fixed and no contemplated action under the Sea Customs Act would be frustrated by removal of these conditions. Mr. Ali Ahmad Fazed, appearing for the Department, drew our attention to the observation appearing in the judgment delivered by Anwarul Haq, J., that there were reasonable grounds to believe that smuggled goods had found their way into the market. Nothing specific was, however, said in respect of the goods seized from the appellant. On the contrary it is the case of the appellant that the goods seized were imported under a licence issued by the Government of Pakistan and they applied, in writing, to place before the Customs authorities the relevant documents in proof of this assertion at the earliest. The Customs Officer refused to examine the documents relating to import of the goods, but later on he received the application with an endorsement that he was not competent to examine the evidence which should be produced before the appropriate authorities in Customs House. It is unnecessary to dwell on the facts leading to the illegal seizure of the goods from the appellant and the order passed by the High Court declaring the action taken as without lawful authority as we are concerned in this appeal only with the conditions imposed by the High Court on the restoration of the goods. If the High Court was of the view that the goods seized in the instant case were smuggled in contravention of the provisions of the Sea Customs Act then no order for their restoration should ever have been passed. The jurisdiction conferred by Article 98 on the High Court is discretionary in nature and designed to enforce the laws of the land. A fortiori an order calculated to facilitate B breach of any law or to defeat the ends of justice is foreign to this beneficial jurisdiction and as such should never be passed by a High Court. As a result of the foregoing discussion, we find no warrant in law for the conditions imposed by the High Court on the restoration of the goods seized by the Customs authorities on the 27th March 1967, from the appellant. The appeal is, therefore, allowed and the impugned conditions are set aside. In the circumstances we make no order as to costs. K.B.A. Appeal accepted.