P L D 1968 Karachi 599 (PLP)

4. Before I conclude this part of the case, I would also like to remark that although I have held that the searches were not conducted in accordance with law, yet I did not get the impression that the Customs authorities had acted in a mall fide manner or merely to harass any particular merchant 'or shop keeper, The searches appear to me to have been organised as part of an honest land determined effort to check the evil of struggling. It is another matter that the Customs authorities were not properly advised as to the legal requirements embodied in section 172 (A) of the Act. This is a circumstance which, I feel, has to be taken into account in granting relief in the exercise of the discretionary powers vesting in this Court under Article 98 of the Constitution. The possession of the goods in question being admitted by the petitioners, and the jurisdiction of the Collector of Customs not having been affected by the illegality attaching to the antecedent searches, I would not block the contemplated proceedings under item 81 of section 167 of the Act by ordering a restoration of the goods and thus creating a possible opportunity for their disappearance before final adjudication by the Collector of Customs.

35. For the foregoing reasons, I would dismiss the petitions, but in view of the legal questions involved, would leave the parties to bear their own costs. FARUQUI, J.‑I have had the advantage of reading the lucid judgment of my learned brother Anwarul Haq, J. and while I am in rexpectful agreement with his findings that the search and seizure of foreign piece goods from the shops of the petitioners was both invalid, I have been unable, With great respect, to agree with the view that he has taken with regard to the prayer for the restoration of the goods seized in the search which has been held to be invalid and in consequence of which he has dismissed all the petitions. I regret this disagreement, particularly as I have very great regard for the opinion of my learned brother.

2. On the first question, which relates to the search and seizure, I would like to add a few observations of my own. During the hearing of these petitions 1 was of the opinion, to which I adhere that in this case it was not necessary to go into the question of the justiciability about the existence of "reasonable grounds for believing that goods in relation to which any of the provisions of this Act may be suspected to have been contravened or goods which may be suspected to be liable to confiscation under any such provision are concealed or kept in any place." The quotation is from section 172‑A of the Sea Custom: Act which has been reproduced in extenso with section 172 of that Act in the judgment of my learned brother. This was not necessary because it appeared to be plain that the requirements of section 172‑A had been so utterly disregarded that the search on that ground alone must be held to have been without any lawful authority. I have said this because if it was found necessary or permissible to go into the reasonableness of the grounds . . . . . a further scrutiny with regard to the assertion made on behalf of the respondent as to the nature of the opinion regarding the shops of the petitioners would have been necessary particularly as it was claimed on behalf Of the petitioners that the incorrectness of those assertions could be easily demonstrated. Neither from the counter-affidavits nor from the statement made by the Law Officer in Court nor from the file that was produced for our inspection could it be said that the Customs officials concerned could reasonably entertain the belief that smuggled goods were lying concealed in the premises of the petitioners. With this conclusion of my learned brother, therefore, I would not, with respect, agree. In the counter‑affidavits themselves filed on behalf of the respondents only in few cases the assertion was made about the information that such goods had been obtained by those petitioners. In others even that assertion was not made. On the contrary, from the report of the Press statement of the Collector of Customs as published in the "Morning News" which was produced in the case it appeared that a large scale raid on the cloth markets was organised to seize all the foreign cloths. This was upon the belief that the imported foreign cloth could not have lasted so long and there was information; when certain launches had been intercepted and seized, that certain quantities of foreign cloth had unlawfully crossed the customs barriers and come into the city. I may quote a small passage from that Press statement: "The plan of action was to seize all the foreign cloth and bring it to the Customs House. If the shopkeepers were able to prove that their goods were legally imported, the authorities would release them. Otherwise, they will be dealt with strictly in keeping with the Sea Customs Act. We have only seized the cloth which lead foreign markings on it." When this report was being read Mr. Jamil Alam, the standing counsel, was inclined to disown it and we, therefore, asked him to get an affidavit of the Collector of Customs because there had been no official denial of the report published in the "Morning News". Such an affidavit was filed and all that was said about that report was that the statement attributed to me and appearing in the "Morning News" does not reproduce verbatim what I had stated and explained in the interview." `I here was, however, no denial of even a single statement appearing in that long Press report nor was it said that any of those statements were either inaccurate or incorrect. I am, therefore, inclined to take the view that the object of the raids wets merely to embark upon what is called a fishing process in the hope that something incriminating aright be discovered as observed by my learned brother in para. 17 of his judgment.

3. With regard to the noncompliance of the Customs officials with the requirements of section 172‑A which provide a safeguard to the person whose house or shop may be searched I am in respectful agreement with what has been said by my learned brother and the conclusion which he has reached in this respect. I would only like to add that the disregard of section 172, which provides for a search‑warrant from a Magistrate before such a search can be held and the resort to section 172‑A cannot be‑said to be for bona file reasons. On their own showing the Customs officials had received information about the bringing in of smuggled cloth from the Persian Gulf days before these raids were started. There could, therefore, be no difficulty in applying for search‑warrants from a Magistrate such as is required by section

172. It may further be noted that the searches started on the 27th of March and continued up to the 29th. If it was the case of the Customs officials that going to the Magistrate for search‑warrants might lead to the leakage of news enabling the shopkeepers to conceal such cloths, it is sufficient to point out that when a number of shops had been raided on the 27th and the news was splashed in the papers the other shopkeepers, whose shops had not been raided on the 27th, would have enough information that their shops would also soon be searched, assuming of course that they hard knowledge that their shops contained smuggled goods. This, however, did not happen. Not only on the 27th but also on the 28th arid 29th many shops were raided and large quantities of foreign piece goods were recovered from the open shops where the shopkeepers were busy doing business with their customers. I or this and the ether reason given by my learned brother I would declare that the searches in all these cases were without lawful authority. I would also declare that the seizure of the goods from these shops for the same reason was also without lawful authority. I agree with my learned brother that section 178 of the Sea Customs Act does not validate these seizures.

4. I now come to the question whether the prayer of the petitioners for the restoration of the goods; which had been seized illegally should be refused. My learned brother having recorded his conclusions with regard to the illegality of the searches and the seizures started to deal with this question in pare. 25 of his judgment, He observed that the question which did need serious consideration in the present context was whether the contemplated proceedings under item 81 of section 167 of the Act could be said to be vitiated for the reasons that the searches and seizure preceding the initiation of those proceedings were illegal and without lawful authority. Re then went on to refer to the various cases which had been relied upon by Shah Jamil slam, and sonic others and has, if I may say so with respect, lucidly brought out the ratio of these cases. I do not propose to refer to them again. These are contained in pares. 25 and 79 of the judgment of my learned brother. These sire cases in which it has been held that even where the investigation was trot in accordance with the relevant provisions of law or where the search was not legally carried out or whether the arrest had been illegal it did not necessarily follow that the subsequent trial and conviction of the; accused person was vitiated. I am in respectful agreement with this view. Taut I do think I am called upon in these proceedings to decide upon the validity of the proceedings which area no doubt, contemplated by the learned Collector of Customs in, respect of these goods which have been seized. I remember having clearly told Mr. A. K. Brohi when he had, in passing, referred to the judgment of the Supreme Court in the case of Yusaf Ali v. Aslam Zia that the analogy of that judgment was not applicable to the present case. Indeed, that was not the stand of Mr. Tufailali A. Rehman who argued the case for all the petitioners except one. He stated that whether such evidence which can be furnished by these goods would be admissible or as to what would happen in the proceedings was not the question to be gone into in these petitions. The submission that was made was that if this Court reaches the conclusion that the search and the seizure was without any lawful authority then the petitioners should be restored the goods of which they had been unlawfully deprived of. He then cited the three cases to which my learned brother has referred, in all of which certain documents had been seized by the Police Officers at the behest of the Collector of Customs because they related to false declarations of the importers concerned and in which the searches were found to be illegal and order was made for the return of the documents which had been illegally seized. I may refer to these judgments because I have not been able to find any point of distinction between them and the case that we have before us.

5. The first case is that of K. Hoshied v. Emperor in which a Division Bench of the Calcutta High Court held that as section 96 of the Criminal Procedure Code did not empower the issue of warrant to help the investigation by the Police and the Customs authorities, the books and documents seized under such a search‑warrant must be returned to the person front whom they were seized. In this case, upon an information received from the Collector of Customs, Calcutta to the effect that systematic under valuation of cotton piece goods assessable to duty resulting in considerable loss of revenue to the Government was being committed by the parties whose names were noted on the margin and who were assisted by and were in conspiracy with other persons and this was being done in contravention of the Sea Customs pct to cheat the Government. Upon such an application, the Chief Presidency Magistrate, Calcutta, granted a search‑warrant which led to the search in the premises of the petitioners in that case and certain documents and books were seized which, as I have observed, were ordered to be returned. In making that order it was observed that a search‑warrant ‑ is not to be issued automatically or for the mere asking. It can only be issued when the Court considers that the purposes of an inquiry would be served. The Magistrate must apply his judicial mind to the question and must satisfy himself that the issue of the warrant is necessary and the requirements of the law for the issue of the warrant are present. It was further observed that a search‑warrant should not be issued as a matter of course on the bare statement of a police officer that a search was necessary. It was added that when it appears that a Magistrate has not applied his mind in this way and when it appears that action has been taken on insufficient material, the High Court will always interfere. Two other cases which are exactly on the same points and in which the same order was made by the High Court for the return of the seized goods are re Muhammad Tahir and Tar Muhammad de Co. v. Crown. In all these three cases the documents which had been seized were alleged to provide evidence with regard to the persons from whom they were seized defrauding the Government of Customs duty and yet these documents were returned upon the finding as to the illegality of the searches. In dealing with these cases my learned brother has referred to two points of distinction. Firstly, that the question about the legality of the subsequent proceeding by way of trial or, `departmental inquiry by the Collector of Customs was not considered in those cases and secondly, because it was held that the searches were without jurisdiction as section 96 of the Code of Criminal Procedure was not intended to be used is aid of the Customs authorities during the investigation stage. With regard to the first point I would with respect say that though it is true that the question of the subsequent proceeding does not appear to have been raised as it does not find place in the report, but may I add that there was nothing to prevent the respondent from raising that point so that notwithstanding the illegality of the search the documents could still have been made available to the Collector of Customs in the proceeding which he was contemplating. With regard to the second point I would, with respect, say that whether a public functionary has acted without jurisdiction or in excess of his jurisdiction, .the consequences in both the cases would still be the same.

6. It may be noted that in the large number of cases which has been noted in the judgment of my learned brother and in which the proceedings and the trial were held not to have been vitiated were cases where a trial had taken place and a conviction had been recorded. It was in these circumstances that it was held that the investigation or the manner in which the evidence was obtained did not necessarily invalidate" the trial. That is so, but I am not called upon to pronounce upon the validity of any proceedings. It may be noted that in most of these cases it was pointed out that where an illegal search was made or an illegal seizure or arrest was effected it could have been resisted and the Officer doing so might find himself in difficulty and may not be given any protection and may become liable to criminal or civil action. But if a person could resist an illegal search, could he not instead of doing that come to Court promptly and ask for the 'return of his goods so seized. When he does that immediately after the illegal seizure he does riot have to attack the validity of the proceedings which might be in contemplation and in which that evidence may have to be used. It may be that the officer concerned may again be able to seize the same goods provided heacts with full compliance of the requirements of law. But that would be for the authorities to consider. Therefore, when the petitioners have come to this Court promptly after the seizure of the goods and we have granted them a declaration that the search and the seizure were both illegal, I am unable to justify the refusal to restore the goods on the principle that in a subsequent proceeding which may take place, these goods might constitute evidence of contravention of the Sea Customs Act. Such a refusal might nullify the constitutions guarantee which a citizen of this country, has under. Article 2 of the Constitution to enjoy the protection of law and to be treated in accordance with law, and only in accordance with law.

7. That brings me to the last question whether in spite of the illegality of the starch and the seizure I should grant relief to the petitioners in the exercise of the discretionary powers vested in this Court under Article 98 of the Constitution: This question, 1 must freely confess, has caused me considerable anxiety. But having regard to all the circumstances of the case, I have come to the conclusion that the relief of restoration should not be refused to the petitioners though it may be necessary to impose certain terms. Now what are those circumstances which have influenced me in reaching this conclusion. I have already expressed myself about the nature and object of this wide scale raid on the cloth market. The acute controversy on the question whether the cloth seized or a great deal of it was or was not imported in violation of the Sea Customs Act, cannot, of course, be decided in these proceedings. But this must be said that the kinds of fabrics and woollen piece goods seized have, if not all most of it, been allowed to be freely imported for years under Bonus Vouchers Licences and have been freely sold in the open market. Large quantities of these and other cloths have continued to be imported as is shown by various issues of a ‑publication of the Central Statistical Office, Government of ‑Pakistan, entitled "Monthly Foreign Trade Statistics of Pakistan". This has been brought out in the affidavits filed in rejoinder in these cases. Besides reference has been made to a number of baggage receipts issued by the Customs House and Bills of entry have been produced. It is not denied by the respondents that at least some qualities of these cloths have been imported validly until 1965 and even 1966. According to the petitioners such goods have been cleared from the Customs House up to September and October 1966. But suddenly upon interception of certain launches and receipt of information most of the important shops of this city were swooped upon and every bit of foreign cloth was seized and removed to the Customs House. I have quoted from the Press statement of the Collector of Customs earlier to show that the plan of action was to seize all the foreign cloth and bring it to the Customs House, and thereafter if the shopkeepers were able to prove that their goods were legally imported the authorities would release them. In most of the petitions it is asserted and has, in fact, been indirectly admitted that when the goods were being seized the shopkeepers offered to produce evidence of their valid import but these were brushed aside and they were told that this question would be decided after the goods had beets taken to the Customs House and the matter had been investigated in such proceedings as 'might be started. Indeed, the Collector of Customs in his Press statement has himself admitted that be had instructed his staff not to adjudicate upon the cases at the spot. He has given his reasons for these instructions but it is not relevant to go into them. The fact remains that very large quantity of such goods which were being openly displayed .in the shops and had not been concealed and in fact were being sold and bought, were seized in toto and the owners were refused an opportunity to show that they had validly come by these goods, It is, therefore, not a case of the seizure of such extraordinary goods such as gold bullion with foreign marks about which no doubt could be entertained about it having been smuggled into the country, nor is this .a case where the goods had been seized in transit or from a secret place. The search itself was effected without any warrant and in utter disregard of the requirements of section 172‑A which provides safeguard to a private citizen in a matter of search of his premises, and all that the owners are promised is that they must wait until the goods are sorted out and notices are received by them to show cause why the penalties under section 167 of the Sea Customs Act may not be imposed. These proceedings would not be held in a Court of law but before the same officers who organised these searches and would naturally be interested in justifying them and it will be claimed, as indeed it was before us by Mr. Jamil Alam, that the burden of proving valid import all the time will be upon the petitioners. The difficulty and the delicacy of the performance of this task was feelingly expressed by Cornelius, J. as he then was, in the case of S. A. Haroon v. Collector of Customs, Karachi (PLD 1959SC 177). These are the circumstances which have weighed with me to reaching the conclusion that the relief of restoration of the goods should not be refused in this case.

8. Having said what I have in the preceding paragraph the question still remains whether there should be an order for restoration without any condition. There is no doubt that certain proceedings under the Sea Customs Act are in contemplation and though there is nothing to prevent the Customs Officials from seizing the goods again if so advised provided they act strictly according to law, I think I should impose certain terms so that it may not be said that by the order of restoration the contemplated proceedings have been frustrated. I would, therefore, direct that the respondent Collector of Customs or his Staff before releasing these goods to the petitioners shall make a complete inventory of the goods with proper description which should be signed by both the parties and each party shall retain one copy of this inventory. In addition, it would be open to the Collector of Customs to have each of the pieces marked upon in one place by the Customs seal or otherwise so as to ensure the identity of the goods. This having been done the goods shall be returned to the petitioners from whom they were seized with the direction that such of those goods as may be required by the Collector of Customs shall not be sold or disposed of within a period of three months. These directions, I should make it clear, are for the benefit of the respondent and it would be open to him to waive any of them.

9. In the result I would allow these petitions by granting a declaration that the search and the seizure of the goods of the petitioners was without lawful authority and they shall be restored to there subject to the directions stated above. As to the costs I would make the same order as made by my learned brother. KHAMISANI, J.‑The Customs Officers conducted searches of several shops from the 27th of March 1967 to the 29th of March 1967 with a view to unearth and seize cloth of foreign origin alleged to have been brought into Pakistan in contra vention of the Regulations restricting their import and without payment of Customs duty. Cloth from several shops was secured, inventories for some of which were made on the spot. The searches conducted by the Customs Officers were challenged in Petitions Nos. 123 to 127, 132 to 144 and 158 of 1967. As common questions of law were involved in all of these petitions, they were heard together and disposed of under one judgment.

2. The main question which was raised and which received the attention of the Division Bench before whom these petitions were argued was that the searches conducted in the shops and the cloth seized therefrom were in contravention of the provisions of law contained in sections 172 (A) and 178 of the Sea Customs Act and were, therefore,' illegal and ineffective. The learned Judges, who heard these petitions, were unanimously of the view that the Customs authorities clearly acted in excess of their jurisdiction and in violation of what was contained in sections 172 (A) and 178 of the Act in conducting the searches and seizing the goods from the shops. The learned Judges consequently held both the searches and the seizure of goods from the shops as illegal.

3. The next question which followed as a necessary corollary of the first question and was argued before the Division Bench was whether the goods seized on account of the illegal searches of the shops could in law be restored to the petitioners. The learned Judges who constituted the Bench disagreed on this question and as such the matter has been referred to me as a third Judge. The question referred to me is in the following terms: "On the finding that the search and the seizure of the goods in these cases was illegal whether the petitioners' prayer for the restoration of the goods seized should be refused ?"

4. In order to answer this question, it is not necessary to give the facts out of which these petitions have arisen because they are given in great detail in the judgment of, my learned brother Mr. Justice S. Anwarul Haq. It is also not necessary to go into the question of legality or otherwise of the searches conducted in the shops and the seizure of the goods therefrom. The reference made to me is on a limited question and I shall therefore deal with this question only.

5. Mr. Justice S. Anwarul Iraq, while dealing with this question, held that the cloth seized from the shops could not be restored to the petitioners because "the jurisdiction of the Collector of Customs to proceed under item 81 of section 167 of the Act is not taken away simply on account of the illegality of the searches carried out in these cases". He has also been of the view that the judicial authorities appear to be practically unanimous on the point that an illegality during the investigation stage does not vitiate the subsequent proceedings, and the only course open to the petitioners seems to be the one indicated by Lord Cockburn, C. J. in the quotation already reproduced. He has also observed in this connection: "It may also be that the petitioners could have resisted the searches on the ground that they were not in accordance with law, but that stage is now over."

6. Mr. Justice A. S. Faruqui who has disagreed with Mr. Justice S. Anwarul Haq has expressed himself in these words : "But if a person could resist an illegal search, could he not instead of doing that come to Court promptly and ask for the return of his goods so seized. When he does that immediately after the illegal seizure he does hot have to attack the validity of the proceedings which might be in contemplation and in which that evidence may have to be used. 1t may be that the officer concerned may again be able to seize the same goods provided he acts with full compliance of the requirement of law. But that would be for the authorities to consider. Therefore, when the petitioners have come to this Court promptly after the seizure of the goods and we have granted them a declaration that the search and the seizure were both illegal, I am unable to justify the refusal to restore the goods on the principle that in a subsequent proceeding which may take place, these goods might constitute evidence of contra vention of the Sea Customs Act. Such a refusal might nullify the constitutional guarantee which a citizen of this country has under Article 2 of the Constitution to enjoy the protection of law and to be treated in accordance with law, and only in accordance with law." Mr. Justice S. Anwarul Haq has also refused restoration of the goods to the petitioners on the ground that the relief to be given under Article 98 of the Constitution being discretionary and the Customs authorities having riot acted in a mala fide manner or merely to harass any particular merchant or shopkeeper he would not exercise discretion in favour of restoration of goods as by doing so he would be blocking the contemplated pro ceedings under item 81 of section 167 of the Sea Customs Act and creating a possible opportunity for the disappearance of such goods before final adjudication by the Collector of Customs, Faruqui, J. has, on the other hand, expressed himself in the following terms: "The search itself was effected without any warrant and in utter disregard of the requirements of section 172‑A which provides safeguard to a private citizen in a matter of search of his premises, and all that the owners are promised is that they must wait until the goods are sorted out and notices are received by them to show cause why the penalties under section 167 of the Sea Customs Act may not be imposed. These proceedings would not be held in a Court of law but before the same officers who organised these searches and would naturally be interested in justifying them and it will be claimed, as indeed it was before us by Mr. Jamil Alam, that the burden of proving valid import all the time will be upon the‑ petitioners. The difficulty and the delicacy of the performance of" this task was feelingly expressed by Cornelius, J. as he then was, in the case of S. A. Haroon v. Collector of Customs, Karachi: These are the circumstances which have weighed with me in reaching the conclusion that the relief of restoration of the goods should not be refused in this case. Mr. Justice S. Anwarul Haq in reaching the conclusion that illegal search and seizure of the goods from the shops of the petitioners will riot affect the jurisdiction of the Collector of Customs under the Sea Customs Act to adjudicate upon the contemplated proceedings under the Sea Customs Act against the petitioners is based upon the views expressed in the cases mentioned in his judgment, a list of which is given hereunder: (1) The Crown v. Nur Alam P L. D 1955 Lah. 667. (2) The Crown v. Subhan P h D 1956 B J 9. (3) Kuruma v. The Queen P L D 1957 P .C 32. (4) Radha Kishan v. The State of Uttar Pradesh A I R. 1963 S C 822. (5) Mst. Sedan v. The State P L D 1965 B J 12. (6) Prabhu v: Emperor A I R 1944 P C 73: (7) The Crown v. Mehar Ali P L D 1956 F C106: (8) M. S. K. Ibrat v. Commander‑in‑Chief, Royal Pakistan Navy PLD1956SC264. (9) Sh. Abdul Majid v. The State P L D 1958 Kar. 86. (10) Abdul Noor alias Nur Mash v. The State P L D 1958 Dacca 145. (11) Din Dayal Sharma v: The State of U. P. A I Rs 1959 S C 831. (12) H. N. Rishbud and another v. State of Delhi A I R 1955 S C

196. I have gone through all of these cases. The ratio desendi of all these cases is graphically and very lucidly given in the judgment of my learned‑brother Mr. Justice, S. Anwarul Haq. All these cases admittedly deal with the consequence and impact of jurisdictional defects in the investigation of criminal cases and the arrest of the accused persons on, the final result of criminal cases. The judgments in all these cases unmistakably reveal that the jurisdictional defects in the investigation of cases or the illegal arrests of the accused persons had not affected the jurisdiction of the Court competent to try them by virtue of the application of the provisions contained in Code of Criminal Procedure. The decision in these cases is more or less governed by the provisions contained in section 190, Cr. P. C. which reads as under:‑

"190 (1). Except as hereinafter provided any District Magistrate or Sub‑Divisional Magistrate and any other Magistrate specially empowered in this behalf, may take cognizance of any offence ‑ (a) (a) upon ,receiving a complaint of facts which constitute such offence; (b) upon a report in writing of such facts made by any Police Officer; . (c) upon information received from any person other than a Police Officer, or upon his own knowledge or suspicion, that such offence has been committed. (2) The Provincial Government, or the District Magistrate subject to the general or special orders of the Provincial Government, may empower any Magistrate to take cognizance under subsection (I), clause (a) or clause (b), of offences for which he may try or commit for trial. (3) The Provincial Government may empower any Magistrate of the first or second class to take cognizance under sub section (1), clause (c), of offences for which he may try or commit for trial: Analysing this section it becomes evident that a Magistrate can take cognizance of any offence either upon a complaint for upon a report by a Police Officer or upon information received' from any other person or upon his own knowledge or suspicion that an offence has been committed. Section 190, Cr. P.‑ C, ,therefore, is wide enough to give power to a Magistrate to take cognizance of an offence regardless of whether investigation in the 'case is illegal or whether the arrest of the accused is by an unautharised person. Whatever the process and the method by which an accused has been brought before the Court, the Magistrate can take cognizance of the offence if the case can be brought, within any of the provisions contained in section 190, Cr.P.C. All the cages, therefore, that have been referred to in they judgment of Mr. Justice S. Anwarul Haq can, in my humble opinion have no relevance to decide the question of jurisdiction of the Collector of Customs and his powers to take cognizance of the offence if the matter has been brought before him by a process which is not authorised by law as admittedly there is no provision analogous to the provision contained under section 190, Cr. P. C. in the Sea Customs Act. Mr. Shah Jamil Alam, the learned counsel for the respondents has also referred me to the case of Maruti Sakra Gond and others v. Emperor. This case also relates to a final order passed by a Magistrate under section 517, Cr. P: C. The language of section 517 as ‑well as the provisions of the Code of Criminal Procedure empower the Magistrate to dispose of the property on an application moved under section 517 regardless of how the property has been brought before him. This case also therefore will have no relevance to the facts off the present cases whatever.

7. Apart from this, the cases referred to above deal with the question of jurisdiction of a Magistrate after final adjudi cation of the matter before him. None of the cases referred to above deal with a case of a contemplated adjudication of a proceeding. The other point of distinction that appears to be quite evident is that in the cases referred to above, related to final adjudication of cases by a competent .Court of law. The Supreme Court in their famous decision in the case of S. A. Maroon v. The Collector of Customs, Karachi took a view that the Collector, acting under section 167, item 81, does not constitute a judicial tribunal though the proceedings before him are certainly of a judicial or at-least of a quasi‑judicial character. The third point of distinction between the cases referred to above and the present petitions is that the Collector of Customs when exercising the power under section 167, item 81 of the Sea Customs Act has no power to try the petitioners. All that he can do is to confiscate the goods. Confiscation of the goods by no means can be construed to be analogous to a trial of an accused before the Magistrate. The fourth point of distinction is that when an application under section 491, Cr. P. C. (habeas corpus petition) is filed by a person who has been illegally and unauthorisedly arrested but is not before a Court of competent jurisdiction, the only course open up to the High Court is to set the person at liberty. The argument that such a person will be needed in a contemplated criminal proceeding will not come in the way of his release. In such cases; however, there will be no bar to such a person being re‑arrested in accordance with law.

8. The other important reason which in. my humble view will not make, the application of the cases referred to above possible is that all of them relate to criminal offences and deal with the provisions of Code of Criminal Procedure. In the petitions before me, the extraordinary jurisdiction of the Court under Articles 98 of the Constitution was invoked. The principles for the exercise of the extraordinary jurisdiction vesting in this Court under Article 98 of the Constitution are entirely different from the principles on which matters are adjudicated in accordance with the procedure prescribed in the Criminal Procedure Cods. The petitions admittedly had been filed under Article 98 of the Constitution, the relevant part of which reads as under:‑ 98 (1) A High Court shall have such jurisdiction as is conferred on it by this Constitution or by law. (2) Subject to this Constitution, a High Court of a Province may, if it is satisfied that po other adequate remedy is provided by law‑ (a) on the application of any aggrieved party, make an order

(i) directing a person performing in the Province functions in connection with the affairs of the Centre, 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 connection with the affairs of the Centre, the Province or a local authority has been done or taken without lawful authority and is of no legal effect." A bare reading of this Article makes it abundantly clear that the exercise of the jurisdiction of this Court is uncontrolled if it is satisfied that no other adequate remedy provided by law is available to the aggrieved party and if it comes to be of the view that the case of the aggrieved party falls within Article 98 (2) (a) (i) and (ii). Before the present Constitution came into force this Court had the power to issue writs in the nature of certiorari, mandamus, prohibition, quo warranto and habeas corpus. Article 98 (2) (a) (i) may to some extent conform to the power of this Court for issuing writs of mandamus and prohibition under the late Constitution. The power given to this Court under Article 98 (2) (a) (ii) is entirely a new power and is not relatable to the power of this Court for issuing any of the writs under the old Constitution. The power to issue writ in the nature of certiorari was also limited in nature and cannot compare with power under Article 98 (2) (a) (ii). This part of Article 98 is very wide in scope and has, in my opinion, been introduced to correct the actions of governmental functionaries which suffer either from lack of jurisdiction or excess of jurisdiction. Article 98 of the Constitution is also omnibus Article under which relief can be, granted to the citizens of this country against infringement of any provision of law or of this Constitution. If the citizens of this country are deprived of the guarantee given to them under the Constitution illegally or not in accordance with law, then Article 98 can always be invoked for redress: Redress to the citizen of this country can only be given when the illegal order complained against is set at naught by a declaration of this Court.

9. Article 2 of the Constitution relates to the rights of individuals to be dealt with in accordance with law and reads as under; 2 (1) To enjoy the protection of the law, and to be treated in accordance with law, and only 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." Article 2 (1) by the use of words "to enjoy the protection of the law; and to be treated in accordance with law, and only 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" has laid emphasis on the fact that an individual shall be treated only in accordance with law. This right of individuals has been affirmed by the Constitution as inalienable. This right having been given under the Constitution and the Constitution being the supreme law of the land, the right cannot be interfered with unless such an interference is in accordance with law. Interference of such a right in total disregard for law on the Question, can therefore, never be countenanced. This right amongst others relates to protection of life, liberty, body, reputation or property of any person. Article 2 (2) goes further and reiterates with greater emphasis that actions detrimental to the property, etc. of any person shall not be taken except in accordance with law. Article 2 of the Constitution, therefore, leaves no scope for argument that an action which has been taken and which is not in accordance with law, will be in violation of this Article of the Constitution. The violations of the rights of people given to them under this Article are to be safeguarded under Article 98 of the Constitution and the power to safeguard the violation of such rights is conferred upon this Court. This point has already received the attention of the Full Bench of five Judges of this Court in the year 1963 in Mehboob Ali Malik v. Province of West Pakistan (1). The relevant part of this judgment is reproduced hereunder: "To enjoy the protection of law, and to be treated in accordance with law, is declared by Article 2 (1) of the Constitution to be the inalienable right of an individual in Pakistan. 13y sub‑article (P L D 1963 Lah. 575) of that Article, it is further provided that, in particular, no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law, and that no person shall be prevented from, or be hindered in doing that which is not prohibited by law, or compelled to do that which the law does not require him to do. In so far as action contrary to Article 2 may be taken by any public functionary, (or in respect of the personal liberty of the individual, by any other person as well) a means of correction has been provided by Article

98. The only limitation placed on the exercise of this power is the existence of another `adequate remedy.' The intention seems to be that if another remedy is provided by law, and that remedy is `adequate' that remedy cannot be bye‑passed or ignored, on the other hand, if no remedy is provided by law; or if the remedy provided by law is not `adequate' it seems to be intended that no violation of Article 2 by a public functionary (or in the case of the liberty of the individual, by any other person as well) should be suffered to remain uncorrected, to remain without being as fully or as completely redressed as is possible in the circumstances of the case. Prior to the promulgation of the present Consti tution, this Court exercised Jurisdiction (popularly referred to as the writ jurisdiction) that was conferred on it by an earlier constitutional provision, to issue, in addition to other orders and directions, writs in the nature of mandamus, prohibition, certiorari and quo warranto. The scope of those writs was not defined in the Constitution, but had to be gathered from the textbooks on the subject, and from cases decided in England and other countries where writs under those names are issued. The present Constitution by its 98th Article, appears to have made an attempt to reduce into self‑contained propositions, that which was regarded as the substance of those four writs. In the course of their evolution some distinguishing incidents had come to attach separately to some of those writs. Those distinguishing features, it seems, have not been incorporated in Article 98, apparently because they were not regarded as being of the essence of the remedy. The conditions of exercise of jurisdiction in relation to the various writs have thus become more uniform. As a consequence, in some cases the field covered by the earlier writ has become somewhat enlarged; and in others it has become somewhat curtailed. The writ of certiorari, for example, was available originally in respect of judicial or quasi‑judicial determinations only. It was not available in respect of non judicial determinations. Article 98 has not preserved any such distinction, with the result that all orders passed in excess of lawful authority, whether by judicial, quasi judicial, or non judicial functionaries, are equally liable to be declared as being of no legal effect. On the other hand, the requirement that this jurisdiction should be exercised only if there is no other adequate remedy, has become equally applicable to all the cases falling under Article

98. In the English Law, apparently, this requirement was insisted upon rigorously only in relation to mandamus. In relation to certiorari, it was frequently relaxed. Article 98, however, is not susceptible to any discrimination between mandamus and certiorari on this point." I also do not agree with respect, with Mr. Justice S. Anwarul Haq when he says that "the petitioners could have resisted the searches on the ground that they were not in accordance with law, but that stage is now over." If the petitioners could resist the searches in law, carried on in their shops, they could have done so only by way of resorting to violence and showing disrespect to the persons in authority. They could have also in that case protected their goods and continued to be in their possession. It can never be the intention of law that in the event of persons being respectful and having no recourse to violence should not only be deprived of their goods but should also not get the goods through a Court of law when they appear before it and establish that their goods had been taken away in total violation and disregard of the supreme law of the land. If the view of Mr. Justice S. Anwarul Haq were to prevail, then, the persons in authority will also receive unfettered powers. Even the checks provided under the Constitution will not control their activities. On the other hand, the citizen of this country will have to take care of himself regardless of any respect for the person in authority or law obtaining on the subject.

10. In view of what has been said above, I am in agreement with Mr. Justice A. S. Faruqui that in the event of a conclusion being reached that search and seizure of the goods is illegal, the prayer of the petitioners for the restoration of their good seized cannot be refused. For the conclusion I have reached I also adopt the reasoning given by Mr. Justice " A. S. Faruqui in addition to what I have said above.

11. The last consideration on which Mr. Justice S. Anwarul Haq has refused restoration of the goods is, as I have already said, that he would not exercise his discretionary power vesting in him under Article 98 of the Constitution for restoring the goods to the petitioners because by doing so he would not only block the contemplated proceedings under item 81 of section 167 of the Sea Customs Act but would also create an opportunity for the disappearance of the goods. He has taken this view because he has held that the Customs Officers had not acted in a mala fide manner or with a view to harass any particular merchant or shopkeeper. Bona fide action of a func tionary cannot be pressed into service as a defence to shield his illegal action. An illegal action taken by a functionary even if it is taken bona fide and without any intention to harass any one or without any ulterior motive has to be set aside without any regard for the intention of that functionary. Article 98 of the Constitution clearly postulates setting aside illegal orders or orders passed in excess of authority without creating any exceptions for it. It is quite settled that a mala fide action or a functionary even when it is in the exercise of jurisdiction vesting in him can be set aside regardless of whether the action is in accordance with law or soot. An illegal action, on the other hand, even when taken bona fide, has to be set aside. I, therefore, do not agree that the discretion vesting in the High Court under Article 98 of the Constitution should be refused to be exercised if it is established that an action taken by a functionary is illegal but without any ulterior motive.

12. Apart from this, Article 98 (2) (a) (ii) of the Constitu tion envisages that if any act done or proceeding taken, has been done or taken without lawful authority, it has to be declared by this Court as having been done without lawful authority. It further envisages that on a declaration having been given that an act is without lawful authority a further declaration has to be made that it is of no legal effect. The word `and' between the words `taken without lawful authority' and 'is of no legal effect' is conjunctive and not disjunctive. It is, therefore, quite clear that when an order has been held to be without lawful authority, the Court cannot in law stop at that without saying that it is of no legal effect. In other words, the order which has been held to be illegal has to be declared to be of no legal effect. If the searches made by the Customs authorities and the seizures of the goods by them have been held by this Court to be not in accordance with law, the obvious conclusion is that the searches were conducted and the goods were seized without any lawful authority. In the conclusion of this kind having been reached, there is no option under Article 98 of the Constitution for the Court but to hold that the searches carried out by them and the goods seized were of no legal effect. If the declaration is given that the searches and seizure of the goods were of no legal effect, then, the only way open to the Court is to restore the goods to the petitioners. Even if it be assumed that the power vesting in the High Court under Article 98 of the Constitution is discretionary, it is nowhere laid down that the discretion in favour of the petitioners shall be exercised in one part and refused in another part. As Mr. Justice S. Anwarul Haq has exercised jurisdiction by holding searches and seizure of the goods to be illegal, I am of the opinion that his view that discretion to restore the goods to the petitioners should not be exercised, is not in accordance with the phraseology used in Article 98 of the Constitution.

13. On consideration of the questions of law argued before me, my answer to the question referred to me is that the petitioners' prayer for the restoration of the goods seized cannot be refused. The goods under these circumstances have to be restored to the petitioners.

14. It has also been contended before me that Mr. Justice A. S. Faruqui while holding that the goods should be restored to the petitioners, could not impose conditions on such a restoration. As the imposition of conditions or the validity thereof does not fall within the scope of the question referred tome as a third Judge, I do not wish to give my opinion on it.

15. The result, therefore, is that the goods shall be restored to the petitioners as held by Mr. Justice A. S. Faruqui on conditions imposed by him in his judgment. A.E Petitions allowed.