P L D 2007 Peshawar 22 (PLP)

MUHAMMAD RAZA KHAN, J.

By this judgment the connected Writ Petition No.820 of 2006 (M/s. Toyota Frontier (Pvt.) Limited v. Government) shall also be decided as both the petitions relate to the same dispute.

2. Vide two orders dated 11-6-2006 and 12-6-2006, issued by the Political Agent Khyber, certain property, of both these petitioners, and several others, were ordered to be sealed/attached for the reasons that "the owners are involved in creating unrest in Bara Sub-Division by supporting Mangal Bagh Group".Vide order dated 11-6-2006 the property of "Toyota Frontier Motors" (petitioners in Writ Petition No.820 of 2006) and the "office/shop in Shah Shopping Centre at 3rd floor Karkhano Market" belonging to Imdad Khan petitioner, and vide order dated 12-6-2006 the property called "Imdad Kambal House Block B Shops Nos.32 and 33, Shah Shopping Centre" belonging to Imdad Khan petitioner were ordered to be attached . Since the order was addressed to the S.S.P. Peshawar, therefore, on his direction the concerned S.H.O. Police Station Hayat Abad respondent No.4 in this petition (and S.H.O. Police Station University Town (respondent No.6 in the connected petition) sealed the said property. This action has been challenged separately by these two constitutional petitions. From the lists it appears that property belonging to several others were also similarly attached/sealed.

3. We have listened to Mr. Abdul Latif Afridi, Advocate, learned counsel for the petitioner Imdad Khan and Mr. M. Sardar Khan, Advocate, learned counsel for petitioner Toyota Frontier (Pvt.) Limited. The learned law officer for the respondents was also heard.

4. The main defence on behalf of the respondents is that under section 21 of the Frontier Crimes Regulation, 1901, the political authorities can attach the property of the persons belonging to the tribal A areas despite the fact that the properties may be situated in the settled area. For the purpose of convenience section 21 F.C.R. reads as follows: "Blockade of hostile or unfriendly tribe.

In the event of any frontier tribe, or of any section or members of such tribe, acting in a hostile or unfriendly manner towards the Pakistan Government or towards persons residing within Pakistan, the Deputy Commissioner may, with the previous sanction of the Commissioner, by order in writing, direct- (a) the seizure, wherever they may be found, of all or any of the members of such tribe and of all or any property belonging to them or any of them; (b) the detention in safe custody of any person or property so seized and; (c) the confiscation of any such property; and may, with the like sanction by public proclamation; (d)??????? ????????????.. (e)??????? ????????????..

5. The plain reading of the said section indicates that taking penal action under this provision is qualified by the phrase "action in hostile or unfriendly manner towards the Government". There is no absolute or unconditional discretion of the concerned authorities to take action against a tribe or its members. "Acting in hostile manner" is serious charge which is not applicable in this case. However the term "unfriendly manner" is a diluted but a wide term. "Creating unrest" may or may not amount to "acting in unfriendly manner". Therefore, it presupposes that before taking action, under the said statutory provisions, the concerned persons must be informed of the action proposed to be taken against them. Principles of natural justice must be followed. It has been frequently held by the Hon'ble Supreme Court that these principles should be read as part and parcel of every statute, despite the fact that they may not be specifically stated. Reference can be made to H.M. Saya & Company v. Wazir Ali Industries Ltd. PLD 1969 SC 65 NAB v. Mst. Zahida Sattar PLD 2001 Kar. 256.

6. Examining these petitions in the light of the said observation we have noticed that in the case of Imdad Khan certain notices were issued to Haji Bahadur of Bar Qamber Khel who is the father of Imdad Khan 'petitioner. He has been informed vide a notice dated 4-4-2006 that he should "stop his illegal activities and financial assistance of Mufti Group". Apparently no notice was ever issued to Imdad Khan petitioner. A notice issued to the father cannot be presumed to be a valid notice to the son. Any illegal activity of the father cannot justify penal action against the personal property of his son who is not proved to be involved in any such activity.

7. In the case of Toyota 'Frontier (Pvt.) Limited (Writ Petition No.820 of 2006) it has been stated that certain notices were issued to Haji Abdul Hanan of Bar Qamber Khel and that the said Haji Abdul Hanan has participated in the Jirga of Afridi tribe with political authorities, where they had committed that they will make every sincere effort to resolve the Mangal Bagh dispute and that in consideration thereof the said premises of Toyota Frontier Motors be de-sealed. It was stated at the bar, on behalf of the respondents, that as a result of the said compromise the property has been de-sealed. However the learned counsel for the petitioners argued that even the original impugned order of attachment and sealing of the premises was illegal and amount to misuse of authority.

8. The examination of documents annexed to the petition displays that the petitioner Toyota Frontier (Pvt.) Limited is a corporate body. Haji Abdul Hanan does not appear to be one of the directors of the said company. The present directors are Mr. Niaz Badshah Afridi, Mr.Attaullah Khan, Mr. Shahid Hameed, Mr. Gul Zada and Mr. Muhammad Shafique. There is no proof that all of them have committed anything to justify the application of section 21 to them or their property. Even if they were guilty of an offence, the notice should have been issued to them. "Audi Alteram Partem" is an established principle of equity. The service of notice on one Haji Abdul Hannan Cannot be presumed to be a notice on the owners, directors and shareholders of the petitioner company. Any action taken against the petitioner without the service of notice and without providing opportunity of hearing, is an irreversible illegality, as discussed hereinabove.

9. The corporate body is a juristic person having an independent right to own and possess property. The directors merely manage the property of the company. They are the owners of their respective shares which can be transferred to others. Thus the property of the company is not the exclusive property of the directors nor of the shareholders. The penal action against one or more of the directors does not justify the coercive action against the property belonging to corporate body. In the case of M/s. Frankson and Company v. Mian M. Hussain 1983 CLC 1042 it has been held as: "According to law a company is a separate juristic person, distinct and different from its shareholders. It is not a mere "alias" for its shareholders nor merely an agent for them. Any individual shareholder cannot indemnify the company against debts which it incurred except to the extent of his share in the capital. His liability is limited to that extent and he can only be called upon to contribute in the event of a winding up of the company to the extent of his own share. Reliance in this respect can be placed upon A. Salman and Company Ltd. v. Aron Salaman, Aveline Scott Ditcham V. James J. Miller, E.B.N. Company Ltd. v. Dominion Bank, and Ikram Bus Service and others v. Board of Revenue, West Pakistan etc. In the first case Lord Machaughten observed as follows:-- "???the company is at law a different person altogether from the subscribers to the memorandum, and, though it may be that after incorporation the business is precisely the same as it was before, and the same persons are managers, and the same hands receive the profits, the Company is not in law the agent of the subscribers or trustees for them. Nor are the subscribers as members liable, in any shape or form, except to the extent and in the manner provided by the Act."

10. Even if it is presumed for the sake of discussion that action could be taken against the property of the company, at the most the shares of the person, responsible for a penalty under section 21, F.C.R., could be attached. Thus the order of attachment of the premises belonging to a private limited company, though partly owned by some of the tribesmen, was patently illegal. We therefore, accept these petitions, set aside the impugned orders with the direction that the respondents should avoid misusing the powers under the F.C.R. S. M.B. /180/P???????????????????????????????????????????????????????????????????????????????????? Petitions accepted.