1968 SCMR 189 (PLP)

HAMOODUR RAHMAN, J.-This is a petition for special leave to appeal from the judgment and order of the High Court of West Pakistan in a writ petition filed to challenge the validity of certain simultaneous searches conducted in Karachi by the Customs Department between the 27th and the 29th of March 1967, at the premises of cloth dealers. A number of petitions filed by various cloth dealers 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 petitioner. Anwarul Hach 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 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 Col lector ; (ii) that each party shall retain one copy of the inventory, 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 (iii) that such of the goods as may be directed by the Collec tor of Customs shall not be sold or disposed of within a period of three months. Because of this difference of opinion that 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 Fauruqi, J. The petitioner, who was one of the persons whose shop at Elphistone Street, Karachi, was searched during this raid, has now come up for special leave to appeal. His contention is that the High Court had no jurisdiction to impose conditions for the release of the goods after it had found that the goods had been seized illegally. It is his further complaint that he had no oppor tunity of placing his arguments at any stage regarding the validity of the conditions. According to the learned counsel appearing in support of this petition the conditions imposed in fact amount to a denial of the right of the petitioner to which he has unanimously, by all the three Judges of the High Court, been found to be entitled. The question raised is one of considerable public importance involving examination of the true scope of the powers granted to the High Court by Article 98 of the Constitution. A large number of the dealers in Karachi are involved in these cases, hence the question is bound to recur in their cases also. Hence leave is granted to examine the validity of these conditions. In the meantime, the operation of the High Court's order will remain stayed so that no inventory need be made no the goods returned to the petitioner, but during the pendency o the appeal in this Court the Customs Department will take no other step either in pursuance of the order of the High Court or otherwise to deal with the seized goods which shall be kept under seal by the Customs Department. Since this appeal involves only questions of law no further papers need be filed. The paper book filed for the petition will be treated as the paper book for the appeal, and expeditious steps will be taken to make the appeal ready for hearing at the next session of the Court at Karachi Security-Rs. 1,

000. Petition allowed.