P L D 1984 Karachi 269 (PLP)

ABDUL HAYEE KURESm, ACTG. C. J.-The petitioner, Abid Hussain, claims to be a respectable businessman, dealing in Real Estate and owning a packing factory and workshop, besides being the Chairman of a textile Mill and a Construction Company. The petition recites that, in 1975-76, the petitioner was harassed and falsely implicated in various cases on account of being in bad books of the past regime. the petitioner, therefore, thought of going abroad to save himself from the harassment. In regard to such harassment, it is stated that the Federal Investigation Agency raided and occupied the house of the petitioner, the friends and relatives of the petitioner, including his married daughter and two real brothers were also detained under the Defence of Pakistan Rules. It is alleged that even their property was seized. It is then the case of the petitioner that before leaving Pakistan he had placed a sum of Rs. 51,72,000 to trust with Naseem Hasan Shah, respondent No. 2, who was a close friend of the petitioner. The said Naseem Hassan Shah was residing in House No. 228/A, Block `D', North Nazimabad, Karachi. It is then alleged that, on the night intervening 21st and 22nd September, 1976, some officers of the Federal Investigation Agency at Karachi, raided the house of respondent Naseem Hassan Shah with a view to arrest the petitioner. The petitioner was not there, but the house of Naseem Hassan Shah was searched in presence of Mashirs Muhammad Anwar and Riaz Mohiuddin. It is stated by the petitioner that the amount of Rs. 51,72,000 entrusted by him to respondent Naseem Hassan Shah was seized by the Raiding Party from the said house. Naseem Hassan Shah and one Muhammad Akbar, who were present in the house at the time of search, were arrested and detained under the Defence of Pakistan Rules. A Mashirnama was prepared by the Federal Investigation Agency's staff, and a copy of the same has been placed on record as Annexure 'A-1'. It is stated in the Mashirnama that the amount of Rs. 51,72,0 ,0 was, in fact, seized by Abdul Haque, Deputy Director, Federal Investigation Agency, but it is further stated that the said amount was found to be wrapped in four white cloth bags, and had been thrown from a car in front of House No. 228/A, Block `D', North Nazimabad, Karachi. This house, it may be recalled, is the house, where Naseem Hassan Shah resides. This Mashirnama has been signed by Muhammad Anwar and Mohiuddin. The petitioner alleges that, at the time of recovery and seizure of this amount, respondent Naseem Hassan Shah and Muhammad Akbar immediately informed the Raiding Party that the amount belonged to the petitioner, who had deposited the same with respondent Naseem Hassan Shah as a trust. the petitioner has submitted copies of the affidavits of respondent Naseem Hassan Shah, Muhammad Akbar, who was in the house of Naseem Hassan Shah at the time of seizure, and Mashirs Muhammad Anwar and Riaz Mohiuddin. These documents have been marked as Annexures `A-2' to `A-5' on the record, and each one of these documents states that the sum of Rs. 51,72,000 was, in fact, seized from the house of Naseem Hassan Shah. It is also stated in these affidavits that, on the same night in the same search, Police had also recovered 40 Dollars, 20 Sterling pounds and 10 Dutch Gilders, and the foreign exchange was claimed by Naseem Hassan Shah. The amount of Rs. 51,72,000 was retained by the Federal Investigation Agency for a period of three and half months, and ultimately, on 6-1-1977, an application was made in the Court of the Additional City Magistrate No. 5, Karachi. The said application reads as follows :- "It is submitted that on the night between 21st and 22nd September, 1976 on credible information that one Nasim Shah resident of North Nazimabad provides facilities to Abid Hussain in his nefarious activities and harbours him, a said was organized to haul up Abid. During this operation, when the police party reached near House No. 228-A/D North Nazimabad, Karachi, party viewed a car from which some bags were being unloaded under the cover of darkness. When police party rushed towards the car, the persons busy in unloading the bags started the car and made good their escape. The bags left over lying in the darkness, were checked and were found to contain Pakistani Currency Notes as under :- As. 51,72,

000. These notes alongwith bags were taken possession of as an unclaimed property. Investigation, enquiries and efforts were made, but the amount in question remained unclaimed. Since the unclaimed property are Pakistan Currency and as such right of possession of this property can only be of Pakistan Government. It is, therefore, prayed that the Pakistan Currency as mentioned above may kindly be ordered to be confiscated in favour of Government of Pakistan and to deposit the same in the State Bank of Pakistan." The Magistrate, on the same day, ordered the issue of a proclamation under section 523(a), Cr, P. C. and directed the Assistant Director of Federal Investigation Agency to retain the amount in safe custody. A proclamation was issued on 11-1-1977 by the said Magistrate, calling the person having a claim to this amount to appear before the Magistrate and establish his claim. This proclamation is Annexure `B/1', and the same shows that the amount was seized near House No. 228-A, Biock `D', North Nazimabad, Karachi. The proclamation further shows that the notice was ordered to be pasted on public places by the Assistant Director of the Federal Inves­tigation Agency and by the Station House Officer of North Nazimabad Police Station. It is not stated that notice was ordered to be pasted at a conspicuous place near the place, where the amount in question was seized. No claimant appeared, and therefore the Magistrate, by an order, dated 16-7-1977, forfeited the amount and kept the same at the disposal of the Central Government. The petitioner returned from abroad on 29-9-1977, and thereafter surrendered himself before the Martial Law Authority, and defended himself in some cases that had been instituted against him in Karachi and Lahore, and he states that he had been acquitted in all the cases, which had been instituted against him by the previous Government which, as alleged, was hostile to the petitioner. The petitioner thereafter filed an appeal before the 3rd Additional Sessions Judge, Karachi, against the order of forfeiture. This appeal was dismissed on 20-5-1978 on two-fold grounds that the appeal was barred by time, and that the petitioner not having lodged his claim, had no locus standi in the matter. It seems argument was raised before the learned Additional Sessions Judge that the order of forfeiture was illegal, and the placing of the money at the disposal of the Central Government was also illegal. The learned Additional Sessions Judge stated that the order was not illegal, or, ultra vires, but at most irregular, so that the irregularity could be cured under section 537, Cr. P. C. Consequently, the order of the learned Magistrate was modified in the manner that the work 'forfeiture" in the initial order of the Magistrate was deleted and substituted by the word "the amount of Rs. 51,72,000 is placed at the disposal of the Provincial Government." Aggrieved by the order of the Additional Sessions Judge, the petitioner filed a Criminal Revision Application in this Court, which was registered as Criminal Miscellaneous Application No. 601/1978. This application was fixed before Mr. Justice Muhammad Zahoor-ul-Haq, who dismissed the same on 25-3-1980. The learned Single Judge held the order of the Additional Sessions Judge to be proper, but, in the penultimate paragraph of the order, it was stated as follows :- "This order has not prejudiced the applicant in any manner. His appeal has been merely dismissed on the technical ground of limitation and he is not, therefore, under any apparent disabillty from moving the Provincial Government to provide him the necessary relief if he can convince them of his genuineness and bona fides and provide the necessary proof of his ownership." The petitioner thereafter made some applications to the Government of' Sind in the Service and General Administration Department, requesting for release of the said amount. By a letter, dated 22-7-1980, the Government stated that, in case the petitioner wanted to convince the Government about bona fides of his claims, he should establish his title before a Civil Court, and produce the decree of his ownership before the Government for release of the money. Subsequently, by two successive letters, dated 4-12-1980 and 9-3-1981, the same stand of the Sind Government was reiterated, placed in these circum­stances, the petitioner filed a suit against the Government- of Sind and Naseem Hassan Shah as the pro forma defendant on the Original Side of this Court for recovery of the said amount. This suit has been registered as Suit No. 302/1981. We had examined the record of this suit at the time of hearing, and the position is that, till date, even the issues have not been framed. The fact of the filing of the suit has been mentioned in this petition, and it is stated that the remedy by way of a suit is neither speedy nor efficacious, and, on the other hand, the delay leads to huge losses arising out of the blocking of the capital of the petitioner. Before adverting to the respective contentions of the two parties, it would be proper to refer to some other documents, which are available on the record in this petition, or, on the record in the earlier case being the Criminal Revision Application, which was disposed of by Mr. Justice Muhammad Zahoor-ul-Haq. In fact, by consent, reference has been made to several documents, which are available on the record of the case. The first document is a reference made by Mr. Abdur Rashid Khan, Director of of the Federal Investigation Agency on 8-10-1976. The reference was exhibited on the record of Suit No. 278/1978 in the Court of the 5th Additional District Judge, Karachi. A certified copy had been obtained, and a photostat thereof has been placed on record of this petition as Annexure 'C'. The very first paragraph of this reference reads as follows "F. I. A. Karachi was moved into the major operation for the arrest of Seth Abid for the first time on 15th September, 1976. For this purpose, a group of most reliable and intelligent officers was formed for conducting this most sensitive operation. .The initial raid conducted in this connection resulted in arrest of a very important associate of Abid namely Nasim Hussain Shah from North Nazimabad. The raiding party also recovered Rs. 51,72,000 during this operation." It is significant that, for arresting the petitioner, efforts were made by the Federal Investigation Agency, and, in a raid, respondent Naseem Hassan Shah, who is stated to be an important associate of the petitioner, was arrested from North Nazimaband, and, during this operation, the sum of Rs. 51,72,000 was also recovered. The other document, to which reference needs to be made, is marked as Annexure 'D' in Criminal Miscellaneous Application No. 601/1978, which is a letter by Mr. Abdur Rashid Khan, Director of Federal Investigation Agency, to the petitioner. This letter, which was written on 2-3-1978, is in reply to a letter written by the petitioner 27-12-1977, claiming the return of the amount in question. It is stated that the amount has been treated as unclaimed and deposited in the State Bank. It may be mentioned that this reply was made to a letter written by the petitioner on 27-12-1977. The next document is a Report lodged by Mr. Abdul Haque, Deputy Director, Federal Investigation Agency on 22-9-1976, stating that, on the. night intervening 21st and 22nd September, 1976, searches and raids were conducted, and respondent Naseem Hassan Shah was arrested from House No. 128-A, Block `D', North Nazimabad, and some foreign exchange was seized. !n respect of this seizure, Naseem Hassan Shah was tried by the 8th Additional Sessions Judge, Karachi, and was convicted on his plea of guilt on 20-12-1976. The other documents, to which reference may be made, are the orders of detention of respondent Naseem Hassan Shah under the Defence of Pakistan Rules on 22-9-1976. There are documents to show that even the daughter of the petitioner was ordered to be detained in her house on 8-11-1976.

2. The respondent, Naseem Hassan Shah, has not contested this petition. On the other band, he had filed an affidavit in the Revision Application, a photostat copy of which has been placed on record as Annexure `A/2'. In this affidavit, he has stated that, on the night between 21st and 22nd September, 1976, a raid was made by the Federal Investigation Agency to secure petitioner Abid Hussain from his (respondent No. 2's) house. He has stated that the amount in question was entrusted to him by the petitioner, Abid Hussain, and the said amount was seized by the Police.

3. On behalf of respondent No. 1, Mr. Aftab Ahmad Siddiqi, a Section Officer, has filed a counter-affidavit, wherein it has been averred that the currency notes of about Rs. 52,00,000 were abandoned on the road by some unidentified persons, who frightfully ran away in a car, leaving the money on the road. It is stated that the affidavit of respondent Naseem Hassan Shah is designed to oblige the petitioner. It was further stated that the petitioner did not take expeditious steps for return of the amount in dispute. It is further averred that the petition was not maintainable on account of the filing of a suit by the petitioner.

4. Mr. A. Sattar G. Shaikh, the learned Additional Advocate-General, was pointedly asked by us if any person other than the petitioner claims this amount, and he has stated that none other than the petitioner is claiming this amount, He has, however, stated that the amount having been placed at the disposal of the Sind Government now belonged to the Sind Govern­ment. The learned Additional Advocate-General has averred that, for the reason of availability of an alternate remedy, this petition is not maintainable. He has further averred before us that the matter involved disputed question of fact, which cannot be resolved in the restricted scope of a Constitutional petition. This case was heard by a Bench of which one of us was a member. However, before tire judgment could be announced, it was brought to our notice that Federal Investigation Agency (hereinafter referred to as F. I. A.) had not deposited the amount with the Sind Government as directed by the Additional Sessions Judge, which order had also been confirmed by Mr. Justice Zahoor-ul-Haq. It was stated that for such reason it was necessary to join F. I. A. and the Federal Ministry of Interior. The amended petition was then filed on 36-6-1983. Mr. Aziz Munshi appeared on behalf of the newly joined respondent. This order was passed on 19-4-1983. Counter-affidavit was filed on behalf of the freshly joined respondent by Muhammad Sadiq, an Assistant Director, Crimes Circle 1.1, Karachi, on 18-10-1983. the facts, as are stated above, were reiterated. It was stated that the petitioner had no locus stand!, as the amount had not been seized from him. I he ownership of the petitioner was denied although it was not stated as to who was the owner. It was stated that the claim of the petitioner having been made for the first time on I 1-3-1983 was belated. It was stated that the petitioner having filed a civil suit could not invoke constitutional jurisdiction. It was averred that until the petitioner proved his rights of ownership the newly ­joined respondents were entitled to remain in lawful possession of the amount. It was stated that the petitioner was also guilty of laches. It was stated that the petitioner was not a respectable businessman, because the record of the Government of Pakistan shows that he had been involved in various criminal cases and unlawful activities, as he alongwtth his associates operates business directly, or, indirectly in London, Dubai, India and other places without disclosing his sources of foreign exchange and income. It was denied that the petitioner had been harassed by the previous Govern­ment. It was admitted that the house of the petitioner bad been acquired by respondent No. 4 for official use, and it was also admitted that the daughter of the petitioner, his two real brothers and his Manager had been detained under the Defence of Pakistan Rules, but such detention was lawful. It was not denied that the house and property of the petitioner had been seized. It was admitted that the house of Naseem Hassan Shah had been raided and some foreign exchange was secured. It was also admitted that Naseem Hassan Shah alongwith Muhammad Akbar was detained under the Defence of Pakistan Ordinance. It was stated that Naseem Hassan Shah pleaded guilty on the charge of having foreign exchange in his possession, but it was averred that during that trial Naseem Hassan Shah made no submissions regarding the amount which is involved in this case. It may, however, be stated that Naseem Hassan Shah was not put on trial in connection with this amount. The affidavits of Naseem Hassan' Shah, Muhammad Akbar, Muhammad Anwar and Riaz Mohiuddin were stated to be false. It was stated that the proceedings before the Magistrate were legal. Such lengthy affidavit of Muhammad Sadiq, which runs in 17 pages, however, does not state that Muhammad Sadiq was a member of the raiding party. However, to confirm such fact, we asked Mr. Aziz Munshi and Muhammad Sadiq himself (who has been present in Court all along), and it was confirmed that he was not a member of the raiding party. Alongwith the affidavit of Muhammad Sadiq photostat copies of two affidavits of Muhammad Anwar and Riaz Mohiuddin (the Mashirs of seizure) were also filed. These affidavits came from the custody of the F.

1. A. and are couched in the same words. It will be profitable to re-produce the same. Those read as under :- "I solemnly affirm before this Hon'ble Court that between the night of 21/22 September, 1976, the F. I. A. Karachi seized Pakistani currency notes bundles, from the road opposite House No. 228-A/D, North Nazimabad, found as unclaimed. the F. I. A. Police counted the currency notes which were 51,72,000 and prepared Mashirnama which bears my signature. I see the Mashirnama, it is the same "and bears my signature. I am making this affidavit with the intention that the same may be used as and when required." The stamp paper is dated 31-1-1979, and it is signed by a First Class Magistrate at Karachi on the same date. No one seems to have identified the two deponents, but that is not material, because the two deponents admit their signatures. Since these two affidavits ran contrary to the affidavits of the same witnesses, by consent of counsel, we called the two deponents, and examined them m Court. They were identified by Muhammad Sadiq. In their evidence, they have stated that the money was not found on the road, but in a bungalow. In regard to the affidavit, Muhammad Anwar stated that he had been taken to the Magistrate by some Police Officer, but the contents of the affidavit had not been read over to biro. He went on to state that Magistrate did not know him; nor had he asked the Police Officer as to who identified the deponents. He went on to state that the Police Officer that had taken him to .Magistrate did not know him before. In regard to the affidavit sworn by Muhammad Anwar in the High Court, he has stated that he bad been brought by some policeman, but there was an Advocate, who was present at that time. He stated that the affidavit obtained by F. I. A. had not been read over to him, but the affidavit sworn by him in the High Court had been read over to him He has also stated that when the money was recovered, it was stated by one Muhammad Akbar that it belonged to Abid Seth. Riaz Mohiuddin in his evidence has stated that the affidavit produced by F. I. A. was got signed from him outside the Court, and not in presence of Magistrate. However, he also stated that money had been recovered from the house of Naseem Hassan Shah, and not from the road. When this matter came up before us on 14-3-1984, Mr. Aziz Munshi invited our attention to still another counter-affidavit that had been presented in the office of this Court on 11-3-1984. We may state that arguments had already been heard and one of the points, that has been raised by Mr. Sharaf Faridi, was that none from the raiding party had filed any counter­affidavit to rebut the assertion of the petitioner, and witnesses that the amount had not been recovered from the road. Thereafter, Syed Habib Ali, an Inspector of F. I. A. made an affidavit, which was brought to our notice. He has stated that, when F.

1. A. party reached near the house of Naseem Hassan Shah, they saw some car from which some bags were unloaded under the cover of darkness. It was stated that, when the police party rushed towards the car, the persons busy in unloading the bags made good their escape. He stated that Naseem Hassan Shah and Muhammad Akbar did not disclose that the money belonged to the petitioner. At the request of Mr. Sharaf Faridi, Syed Habib Ali was allowed to be cross-examined. He has stated that the F.

1. A. party started from office at mid-night intervening 21/22 September, 1976, and it took them 45 minutes to reach North Nazimabad, and the two Mashirs were picked up somewhere on the way. He went on to state that, when the F. I. A. party was at the distance of 20/25 yards from the house of Naseem Hassan Shah, they found some bags, which were unloaded from a car, and such bags were thrown at the distance of 4 or 5 paces from the door of house of Naseem Hassan Shah. 1t would thus seem that the alleged car, from which bundles were taken out, was at distance of 30 yards, when the F.

1. A. party spotted it. He went on to state that the F. I. A. party tried to chase the car, but could not succeed. However, he could not give the give number of that car; nor its colour ; nor could he mention how many people might be in the car. He went on to state that it must hove taken about half a minute for throwing the bundles from the car, and before the said car had come to a dead stop, it had gradually slowed. It seems that underlying purpose of such cross-examination was to show that the story about throwing the bundless and such throwing being witnessed by F.

1. A. party was not reliable, because the time that must have been consumed for the purpose of throwing the bundles would have been sufficient for the F. I. A. also 'to reach that place. This witness also could not give the dimensions of four bags, in which money was contained. He also went onto state that for the purpose of throwing each one of these four bags only one door had been opened. He admitted that no Mashirnama of seizure was prepared at the spot. He stated that the money was counted in the F. I. A. office, but admitted that the Mashirnama of seizure does not show the place of counting of the money. Original Mashirnama has been placed on the record.

5. The first point, on which contest has centered, is that the case involves disputed questions of fact, and therefore, relief cannot be given in these proceedings. We must initially state that, in every case, which come before this Court by way of a Constitutional Petition, a sort of factual dis­pute is always involved. It must also be stated straightway that, if a matter involves substantial questions of fact, which cannot be resolved, except by way of a factual enquiry, or, proceedings, a writ would normally not issue. On the other hand, it can be said without hesitation that the High Court in exercise of constitutional powers can look into all the matters appearing from the record, and then arrive at its own findings. The rule then is that the High Court will refrain from substituting its own findings on facts for the findings that have been recorded by the inferior Tribunal. But to say that, if there is a dispute on facts, the jurisdiction of this Court would be completely barred, would be stating the law too broadly. Taking such a view may even persuade a party to set up a sort of semblance of disputes on facts, and urge before the Court that jurisdiction should not be exercised. This obviously could not be the intention of the Constitution makers. On the other hand, when the High Court calls for the record of judicial, or, quasi judicial authorities, or, tribunals, it has the full power to do justice, although it will not ordinarily substitute its own decision for the decision of the interior tribunal. Reference may be made to the case of Syed Azmat Ali v. The Chief Settlement an I Rehabilitation Commissioner (PLD1964SC264). In the case of Abdul Jabbar v. Abdul Waheed Khan (PLD1974SC331), the principle was enunciated in the following words :- "It is not necessary to dilate on these cases, for the season that the principle is well established that if a statutory Tribunal fails to exercise jurisdiction vested in it by law, such a failure would be open to correction in the exercise of the power of judicial review vesting in the superior Court under the Constitution. The Court may, in appropriate circumstances, remit the case to the Tribunal concerned for deciding the question left undecided, or it may itself proceed to determine the matter if the relevant material is already present in the record and such determination does not entail an enquiry into disputed questions of fact:"

6. The point in regard to the interference on facts was considered by the Baluchistan High Court in the case of Miss Nasreen Fatima A wan v. Principal, Bolan Medical College (P L D 1978 Quetta 17). The judgment in that case has been written by one of us. The passage, appearing at page 28 of the Report, would seem to recapitulate the circumstances under which interference even on facts is justified. In that very case, the following principle has been stated in paragraph 28 of the said judgment "However, it would be laying too broad a proposition, if it is stated that this Court cannot at all interfere with the decision on facts recorded by administrative tribunals. A wealth of case law is avaliable on the point. There have been instances when the High Courts have travelled into the realm of facts in exercise of its cons­titutional jurisdiction. The High Courts have interfered when findings based on insufficient evidence, misreading of evidence, non­consideration of material evidence, erroneous assumption of facts, patent error of law, consideration of inadmissible evidence, excess or abuse of jurisdiction,' arbitrary exercise of power and unreasonable views on evidence, has been taken. It cannot be said that every finding of executive tribunal is beyond the scope of interference of the High Court, because if that were so, the concept of certiorari would virtually become redundant and meaningless. We are sure such helplessness on the part of the superior Courts was not con­templated by the vast body of case law that has come to occupy the field over the years. To our mind the answer has to be in the negative because then entire concept of judicial control over administrative actions will undergo such radical change as to destroy the very structure of writ jurisdiction. We do not wish to be misunder­stood as meaning that the High Court in such case will convert itself into a Court of appeal and determine the minutes confabu­lations in the evidence, but the High Court has to be satisfied that reasonably correct conclusion has been recorded and the decision does not suffer from perversity. To adopt any other view would neither be according to dictates of law nor founded in principles of. justice and an attempt to find an apology for such refrain would only be in vain." Another case on the point is a judgment of the Supreme Court in the case of M. Y. Khan v. M. M. Aslam (1974 S C M R 196). In this case, the Supreme Court was taken through the entire facts of the case and heard elaborate argu­ments advanced in support of the various contentions. It seems an objection was taken that the High Court cannot enter upon appreciation of evi­dence. The Supreme Court, however, stated that, where complicated facts of the case have to be investigated, the same should be left open by the authorities concerned, and not be undertaken by the High Court in writ jurisdiction. However, the Supreme Court stated that there was no bar to the High Court taking evidence, or, even additional evidence at the writ stage in order to consider, whether the impugned order is based upon relevant evidence, or, when the additional evidence is not of a complicated nature. Even in the case of Rahim Shah v. Chef Election Commissioner (P L D 1973 S C 24), the Supreme Court laid down principles that in cases of no evidence, or, bad faith, or misdirection, or, failure to follow judicial procedure, the case would be treated as a case involving act done without lawful authority as would vitiate the act done, or, the proceedings undertaken. The Sup­reme Court took the view that, if the High Court was of opinion that there was no proper evidence to support an order of conviction, writ could be granted.

7. Summing up the legal position, the correct view appears to be that, in cases, where the inferior Tribunal has given a finding on facts, the same small not normally be substituted by a finding arrived at by .the High Court, though, in exceptional circumstances, the High Court could be completely justi­fied in arriving at its own conclusions, provided all the material is available on the record. In the instant case, we must say at the very outset that] neither the Magistrate, nor the Additional Sessions Judge, nor the learned who heard the Criminal Miscellaneous Application, decided, Single Judge, the question of entitlement of the petitioner one way or the other. On the other hand, the learned Single Judge had made an observation in the judgment that it was open to the Provincial Government to consider the request of the petitioner. It would appear from such a direction that the learned Single Judge was of the view that, despite the appeal being out of time,, the petitioner should not suffer on such account. The learned Judge went on to say that the appeal of the petitioner had been dismissed on the technical ground of limitation, and the Provincial Government was free to provide the necessary relief, if he can convince the Provincial Government of his genuineness and bona fide. This would show that even the Pro­vincial Government has not arrived at any findings, but, by three separate letters. it has asked the petitioner that the only course open to him was to establish his title before a Civil Court and produce the decree of owner­ship. It is thus clear that no finding has been recorded in regard to the case of the petitioner. Now, the question arises, whether this Court can enter into facts and arrive at findings.

8. All the material relating to seizure of money, and the proceedings in the various Courts is available on the record of this case. In fact, we had asked the learned Additional Advocate-General and Deputy Attorney ­General if there was any other claimant to this money, and they had to state frankly that none other than the petitioner has laid any claim to this money. As far as the Provincial Government is concerned, the learned Additional Advocate-General has stated that the amount has been kept at the disposal of the Provincial Government, but that circumstance, by itself, does not mean that the amount stands forfeited, or, that the Government in any manner, becomes the owner of this amount. In these circumstances, it would appear that there is hardly any contest in regard to the petitioner's claim. It appears to us that the learned Single Judge, while permitting the petitioner to make a representation to the Provincial Government, felt that a reconsider­ation in regard to entitlement was necessary, and would advance the cause of justice. Even the three letters by the Government of Sind do not appear to dispute the claim of the petitioner. But the letters seem to indicate that the Government wanted the matter to be decided by a Civil Court in spite of a direction by the learned Single Judge that the Government should decide this matter.

9. A reference to the facts now becomes necessary. There is no dispute on the point that this amount was seized by the Officers of Federal Investigation Agency on the night between 21st and 22nd September, 1976. A mashirnama in regard to the seizure was prepared, which is Annexure 'A/1'. In this document, it was stated that the amount in question was contained in "4 white cloth bags thrown from a car and found lying in front of House No. 228-A, Block 'D', North Nazimabad, Karachi". The next document, which deserves consideration, is the Report by Assistant Director, Federal Investigation Agency, dated 6-1-1977, in which it is stated that the Police had credible information that Naseem Hassan Shah provided facilities to petitioner Abid Hussain in his nefarious activities, and harbours him, and therefore a raid was organised to haul up Abid Hussain. It was stated that, during this operation (underlining* is ours), when the police party reached near the house of Naseem Hassan Shah, they viewed a car from which some bags were being unloaded under the cover of darkness, but, when policy party rushed towards the car, the persons, who had unloaded the bags, started the car and ran away. The next document is Annexure `G' on the record, which states that the Federal Investigating Agency was moved into the major operation for the arrest of Seth Abid, and an initial raid was conducted in this connection, which resulted in arrest of a very important associate of the petitioner, namely, Naseem Hassan Shah from North Nazimabad. This document goes to state, in the same context, that the saiding party also recovered Rs. 51,72.000 during this operation (underling* is ours). In this document recovery is not shown from the road.

10. The above facts lead to no other conclusion, except that, on the night of 21st and 22nd September 1976, the Federal Investigation Agency had gone to the house of Naseem Hassan Shah for the purpose of arresting the petitioner, Abid Hussain. The second fact that emerges is that the amount in question had been found on that very night in the same operation, viz. arrest of Naseem Hassan Shah. In the counter-affidavit, which has been filed by Mr. Aftab Ahmad Siddiqi, a Section Officer from the Services and General Administration Department, Government of Sind, it has been stated that Naseem Hassan Shah's residence was searched on the same night, and some foreign currency had been secured from there. The record in Criminal Miscellaneous Application No. 601/1978 was also referred to by the advocates on either side, and there are documents on the record to show that Naseem Hassan Shah was actually arrested on the same night, and tried under the Foreign Exchange Regulation Act for being in possession of 40 U. S. Dollars 20 Pounds Sterling and 10 Dutch Gilders. The above facts would clearly show that the only dispute is in regard to the place, where this money was found. The version of the petitioner is that it was found from the house of Naseem Hassan Shah, whereas the opposite version is that the money was found lying on the road in front of the house of Naseem Hassan Shah. The material that is available on the record is sufficient to record conclusions. Initially, it must be stated that the story about the car being parked out­side the house of Naseem Hassan Shah, from which four bundles of currency notes containing more than half a crore of rupees were thrown out, and, on seeing the police party the car should have speed away, appears to be most unconvincing and untrue. As it is, the four bundles found lying outside the house of Naseem Hassan Shah contained Pakistan currency, the keeping whereof is not punishable under any law. What is more that no number of the car, or, any description of the same has been given. There appears to be hardly any reason why the person having so much money with him should run amuck, so as to throw the money on the road and speed away. What is more that the Reports submitted by the Federal Investigation Agency speak of arrest of Naseem Hassan Shah and recovery of money as a single "operation " On the other hand, the case of the petitioner is that he had mortal fear of being involved in some cases on account of displeasure of Mr. Bhutto, so that he had made up his mind to leave the country, and therefore he had deposited the money with Naseem Hassan Shah. Naseem Hassan Shah filed an affidavit (photstat copy is Annexure 'A/2'), wherein it is stated that petitioner Abid Hussain, apprehending danger to his life and property, had deposited this amount with him, and raid was conducted by Federal Investigation Agency Police on the night in question, during which every not and corner of the house of Naseern Hassan Shah was searched and the amount in question was found. The affidavit further states that, after the recovery of this money, Naseem Hassan Shah was arrested and involved in a false case under the Defence of Pakistan Rules. In similar words is the affidavit of Muhammad Akbar, which was also filed in the High Court in Criminal Miscellaneous Application No. 601/1978 (copy produced as Annexure 'A/3'). It is stated by Muhammad Akbar that a raid was conducted by the Federal Investigation Agency, in which the amount in question was found. He has stated that this amount. belongs to the petitioner. The mashirnama of seizure of this money has been placed on record as Annexure 'A/1', and the same shows that Muhammad Anwar and Riaz Mohiuddin had acted as mashirs. Both these mashirs have sworn affidavits (copies as Annexures 'A/4' and 'A/5'), supporting the case of the petitioner. Both the mashirs stated that, on the night in question, the Federal Investiga­tion Agency Police had taken them to Bungalow No. 228/A, North Nazimabad, Karachi, where they found Naseem Hassan Shah and Muhammad Akbar. Both of them state that the said bungalow was searched, and this amount was found from the said bungalow. They also state that Naseem Hassan Shah and Muhammad Akbar had instantaneously disclosed to the raiding party that the amount belonged to petitioner Abid Hussain, who had kept the same as a trust with Naseem Hassan Shah. They have also stated that, in the same search, at the same time and at the same place, foreign currency, namely, 40 D. S. Dollars, 20 Sterling Pounds and 10 Dutch Gilders were found from Naseem Hassan Shah, and such foreign currency was seized and a mashirnama prepared. On the other hand, even if it is held that this amount was found lying on the road, still basically the question to be determined is not altered. It would show that the amount was seized by the Officers of the Federal Investigation Agency as unclaimed property, and therefore proceedings under sections 523, Cr. P. C. would need to be taken. The scope and object of these provisions of the Code of Criminal Procedure is also to find out and fix the identity of the person, who may be entitled to the property. In the context of the present circumstances, it is admitted case that none other than the petitioner is claiming this amount. The learned Additional Advocate-General has, however, raised a point before us that. thel amount having been kept at the disposal of the Provincial Government, in fact, belongs to it. Such interpretation cannot be placed on sections 523) and 524 of the Code of Criminal Procedure. We would consider the point after discussing the evidence that came on record at the instance of Deputy Attorney-General. It would also appear that, besides the petitioner. the two mashirs Muhammad An war and Riaz Mohiuddin, respondents Naseem Hassan Shah and Muhammad Akbar are consistent in stating that this money was not recovered from road, but from the house, of Naseem Hassan Shah. On the other hand, the evidence on behalf of respondents has been furnished by Habib Ali. Muhammad Sadiq, as stated above, was not a member of raiding party. Habib Ali's evidence has to be read in order to be rejected. He admits that masbirnama of seizure was not prepared on the spot. He admits that in spite of two cars of F. I. A. being at the distance of 30 yards, they were not able to reach up to the car from which the bundles were thrown and it is common knowledge that a car can cover a distance of 30 yards within at most 10 to 15 seconds. What is more that he is neither able to give the colour of the car ; nor its number ; nor the number of the persons in the car. He wants to satisfy this Court by just making a bald statement that he saw bundles being thrown out from the vehicle. Initially, this story appears to be completely doubtful, for there was hardly any reason for the persons to throw away four bundles containing Pakistan currency to the extent of money in excess of half a crore. In any case, possession of Pakistani currency is no offence at all, and for such reason also the story about throwing the money is unbelievahle. If, on the other hand, the person, throwing the money was scared of the cars following him, he should best have speeded away, and Habib Ali's evidence shows that the car, from which the money was thrown, was indeed capable of speeding away. Moreover, the entire evidence in regard to seizure of this amount can be-termed to be no better than evidence of chance witnesses which is also looked upon with suspicion. The Station diary maintained by F.

1. A. has also not been produced. The belated attempt of producing the affidavit of two Mashirs is also suspicious. It is indeed very rare that a Police Officer should have to fall back on the idea of obtaining affidavits from their mashirs. The Magistrate has not been produced ; nor were the two mashirs known to the Magistrate. The Magistrate seems to have obliged the Police Officer by attesting affidavits without any person identifying the deponents. The affidavits were not read to depondents. The respondents made no request for cross-examination of Naseem Hassan Shah, or, Akbar, or, even the petitioner. In regard to this enquiry as to the place where the money in question was found, the dispute centres around the place of seizure I.e. to say whether it was from the house of Naseem Hassan Shah, or, out side his house, which is stated to be 3, or, 4 paces from his house. This dispute has not been resolved either by the Sessions Court, or by the High Court. The High Court, however, directed that the petitioner could make an application before the Sind Government who could decide this matter. The petitioner did make more than one application, but the same was not decided. Ultimately, the Government directed the petitioner to file a suit. Mr. Sharaf Faridi states that, in fact, the petitioner had been goaded to file the suit, because the petitioner's refrain might have prejudiced his case and even show that the conduct of the petitioner was suspicious. In any case, Mr. Sharaf Faridi urges that the suit was not an alternate remedy inasmuch as it was more cumbersome, time consuming and inefficacious. We shall consider this aspect of the case in the later part of this judgment. We must, however, state that all the material for determination of that point is before us, and that is sufficient. Even Mr. Aziz Munshi has not stated affirmatively that the money did not belong to the petitioner. At best, his case is that the petitioner should establish his ownership. We fail to see what further proof can be given in a non-contested case of this nature, particularly when the respondent's own affidavit states that the petitioner has business in London, Dubai, Pakistan and India. Sections 523 and 524 of the Code of Criminal Procedure read as follows :- "

523. Procedure by Police upon seizure of property taken under section 51 or stolen.-(1) The seizure by any police officer of property taken under section 51, or alleged or suspected to have been stolen, or found under circumstances which create suspicion of the commission of any offence, shall be forthwith reported to a Magistrate, who shall order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or, if such person cannot be ascertained, respecting the custody and production of such property. (2) Procedure where owner of property seized unknown.-If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit. If such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation.

524. Procedure where 'no claimant appears within six months.-(1) If no person within such period establishes his claim to such property, and if the person in whose possession such property was found, is unable to show that it was legally acquired by him, such property shall be placed at the disposal of the Provincial Government, and may be sold under the orders of the District Magistrate or Sub-Divisional Magistrate, or of a Magistrate of the first class empowered by the Provincial Government in this behalf. (2) In the case of every order passed under this section, an appeal shall lie to the Court to which appeals against sentences of the Court passing such order would lie." In the scheme of the above provisions, it would appear that, if the Police seizes any property either by reason of section 51 of the Criminal Procedure Code, or on the allegation, or, suspicion that the property is stolen, or that the property has been found under circumstances, which creates suspicion of the commission of any offence, such fact has to be reported to a Magistrate. This would mean that section 523, Cr. P. C. would be attracted in a case, where the property seized is upon search of a person arrested under a warrant (section 51, Cr. P. C.), or the property is alleged, or suspected to be stolen, or that the same is suspected to be such property which indicates the commis­sion of an offence. In the instant case, admittedly the property was not found on the person of any person arrested, unless' it is said that the property was found with Naseem Hassan Shah, who had been arrested on that very night. There is absolutely no evidence, or, allegation that this property hay. been stolen, and likewise there is nothing to indicate that this property is indicative of the commission of any offence. In fact, no such allegation is made. Prima facie, therefore, section 523, Cr. P. C. does not appear to be attracted to the facts of this case, and therefore it is doubtful if subsection (!) of section 523 applies to the facts of the instant case. However, even if it is assumed that seizure of the property was legal, and that the Police acted correctly in reporting the fact of seizure to a Magistrate, the next question, that arises, is what action could the Magistrate take, and, in case the property is kept at the disposal of the Provincial Government, what is, correct meaning, import and consequence of such order. Under subsection (2) of section 523, the Magistrate has the power to order delivery of the property to the person, who, according to the Magistrate, is known to be entitled t . the property. However, if such person is not known, the Magistrate may detain the property, and issue proclamation, requiring any person to appear before him and establish his claim within six months. In the instant case, the petitioner did appear before the Sessions Court and lay a claim, but his petition was dismissed, and likewise a further Revision before the High Court also failed. These remedies were denied to the petitioner solely on the ground that the application before the Sessions Court was time-barred. Now, the question, that arises is, whether, on such application being held to be time-barred, the claimant stands disentitled. Section 524, Cr. P. C. would, in such circumstances, indicate what is to be done with such property in respect of which no claimant appears within the time of six months as allowed, or, the claim is false. Under section 524, Cr. P. C., if no person appear to establish his claim within a period of six months, or, if a person, in who possession such property was found, is not able to show that the property legally belongs to him, then such property had to be kept at the disposal of the Provincial Government. In the instant case, it has not been stated that the petitioner has not been able to show that he was entitled to the property, but the Sessions Court rejected his application on the ground that the application was time-barred. The learned Single Judge, however, allowed the petitioner to establish his claim before the Provincial Government. In an case, the property had been kept at the disposal of the Provincial Government. Next, the question that arises is, whether the words "kept at the disposal off the Provincial Government" would mean, or, imply that the property ha been confiscated. This would be completely out of accord with the existing state of law, because, if the Legislature had intended confiscation of such property, the Legislature would have expressed itself in these words. If reference is made to subsection (1) of section 517, Cr. P. C., it would be clear that, in given cases, the Court could pass orders of confiscation of any property. The use of the words "at the disposal of the Provincial Government" would clearly indicate that the property has not been confiscated, but its custody is transferred to the Provincial Government as a trustee for the' true owner. Unfortunately, there is a paucity of the case law on the subject, but, if a reference is made to the commentary on the Code of Criminal Procedure by Woodroffs, Vol. III, Pakistan Edition published in 1977 at page 3150, assistance would be available. The learned author has stated that the Criminal Court could make' arrangements for the custody and protection of the property, and can make a transfer of the property to such person as it thinks proper. The learned author has proceeded to interpret the words "at the disposal of the Government" as meaning that the Government shall be free to sell the property, or, to hold it as a trustee for the true owner. It would thus mean that the mere fact of the Court having passed an order, placing the property at the disposal of the Government, does not seek to destroy the title of the owner, or, create a tile in the Government, but such order only finds a custodian for the property. In the instant case, the F. I. A. or Government is holding the properly only as a trustee and cannot be termed as owner, nor can it claim any tile to the property. On the other hand, none other than the petitioner has laid a claim to the property, and such claim is also not disputed. In these circumstances, even if it is believed, which we do not believe, that the property was found lying on the road, the right and! title of the petitioner is not affected. The next point that needs to be considered is in regard to the objection raised by the respondents that alternate remedy was available and had indeed been invoked. Mr. A. Sattar G Shaikh has stated that primarily the petitioner was seeking to obtain money, and therefore he should have filed a suit for recovery of the same. He pointed out that in fact a suit had been filed on the Original Side of this Court, and the same was pending. On the other hand, Mr. Sharaf Faridi has stated that, without prejudice to his argument that a suit was not necessary in every case, where a demand for money was made. He stated that, in fact, the petitioner was not claiming return of a debt, or, money on account of a contractual obligation, or, damages which might accrue on account of breach of contract, but the petitioner was, in fact, seeking an order from this Court to oblige the respondents to perform their statutory duties, which they are in law bound to perform. In short, the learned Advocate was distinguishing between a claim for mere return of money as distinct from a right to exact performance of a public duty in accordance with law. He stated that the return of the money was a consequence. The learned Advocate has also pointed out. that a suit was likely to take a very long time to decide. Additionally, he has stressed that Mr. Justice Muhammad Zahoor-ul-Haq had directed the Sind Government to consider the request of the petitioner and provide him the necessary relief, if the demand of the petitioner was genuine. The grievance is that instead of considering the grievance of the petitioner, the Government had asked the petitioner to go and file a suit. It is further averred that, by its very nature, the order in question has been passed by the Sind Govern­ment solely with a view to prolonging the period of deprivation of the property of the petitioner. In order to arrive at conclusions, a background in the contest may be reiterated. The amount in question was seized on the night intervening Ast and 22nd September, 1976. The case was referred to the Magistrate, on 6-1-1977, who passed the order, forfeiting the amount on 16-7-1977. The petitioner thereafter filed an appeal before the Court of Sessions, and a Revi­sion before the High Court. The High Court decided the case on 25-3-1980, and, by its final order, the earlier order of the Magistrate, forfeiting the amount, was varied, so that the order was brought in accord with the provi­sions of the Criminal Procedure Code. The petitioner thereafter made three separate applications to the Government of Sind, when he was asked to establish his claim in the Civil Court. The petitioner then filed a suit on 19-4-1951, but, till the date of hearing of this case in Court, even the issues had not been framed, and, on the contrary, after a lapse of ninety days, the respondent had sought one month's time on 1-2-1952 to file the written statement. The above chronology - would snow that nearly eight years have elapsed since the seizure of the property, and, in the meantime, the petitioner has sought his remedy before the Court of Sessions, the High Court in its revisional jurisdiction, the Government, by representations, and ultimately is obedience has even filed a suit. Suffice to say that the petitioner has not yet obtained any relief, nor has it been adjudged that the petitioner has no claim to the money. On the other hand, Mr. Justice Muhammad Zahoor-ul-Haq, having regard to the facts of the case, permitted the petitioner to make an application before the Sind Government, and directed the Sind Government to grant the relief, if it was convinced. The Sind Government, without applying its mind to the facts, refused to comply with the order of Mr. Justice Muhammad Zahoorul Haq, and directed the petitioner to file a suit. The learned Additional Advocate-General appeared to be canvassing a point of view that, in all cases, where a person seemed to claim any money, no relief could be granted in a Constitutional Petition, and invariably the party has to file a suit. To say the least, this is patently an incorrect view of law. Ferris in the treatise on the Law of Extraordinary Legal Remedies (Law publishing Company Edition) at topic No. 215, appearing on page 249, has considered the position with a view to distinguishing actions seeking perform­ance of ministerial duty legally imposed upon a public officer as distinct from actions for bare recovery of money, and has summed up the position in the following words :- "Where an ordinary action at law is equally specific and adequate, mandamus will not, of course, lie. So an action for damages may, as in the case of refusal to transfer stock or issue a certificate, preclude the remedy. But where the act sought to be enforced by an ordinary action at law is a plain ministerial duty legally imposed upon a public officer, and the ordinary functions of such an action have already been determined or fixed, and there still remains the legal duty to be, performed, then such an action is not such a speedy and adequate remedy as will bar mandamus, for it is not then in and of itself capable of directly affording and enforcing the relief sought. So an ordinary action at law to compel payment of a sum of money, where by statute the amount is established and defendant's liability fixed, is not such an adequate and speedy remedy as will bar mandamus ; for the immediate end sought in an action at law is the fixing of liability and the ascertainment of the amount found due, not the collection of a debt. The ordinary functions of an action at law have, therefore, up to judgment been fixed by statute. If petitioner be compelled to resort to a deter­mination by a jury, if favourable to him, he would be in his present position ; if judgment be not paid, mandamus might be had, but the case would be same as before judgment. The case is analogous to those where the salary of a public officer is fixed by law, and the duty to pay is a ministerial act." Again, at page 253 in the same volume, the learned author has expressed himself as follows "However, where one has a substantial right to protect or enforce, and this may be accomplished by mandamus, and there is no other plain, speedy and adequate remedy in the ordinary course of the law, while it does not issue as a matter of right, it would be an abuse of discretion to refuse it." One has to distinguish between mere demand for money, whether on account of a loan, or, a contract from situations, where a person, although entitled to recover money, is neither seeking enforcement of a contract nor exacting a financial liability, but ,is asking for the performance of a public duty. The question that arises in these cases is, whether, even for the purpose of enforcing public duty, a person must necessarily invoke the ordinary action at law by way of a suit. It would seem that the proper course would be to allow him relief on a writ rather than march him to the Civil Court to establish his claim. In the present case, the petitioner is only exacting perfor­mance of a public duty by the Government. Admittedly, there is no contest in regard to ownership of the money, and, that being so, the respondents were in duty bound to restore the money to the claimant. Normally, suits are filed when a party disputes the right, or, title of another, or sets up a title in himself. In the present case, the respondent has not rejected the right of the petitioner, nor does the respondent say that the amount does not belong to him. On the other hand, the circumstances in which this amount has been sized by the Federal Investigation agency casts duty on them to determine was the person entitled to this amount. On the other hand, the question in regard to the adequacy of the remedy Nay of a suit is no less significant in circumstances. As stated above, the money was seized nearly eight years back, and the suit, as we know, will :eke inordinately long time. As it is, a suit and in intra-Court appeal take of less than a decade to decide, and, with a possible appeal to the Supreme court, the matter may take even longer. In the meantime, the value o money depreciates, and the petitioner will have no means to compensation himself. Could this remedy then be termed to be efficacious, or, adequate, particularly in the circumstances of this case where there is no rival claimant. The concept of alternate remedy has also been considered by the superior Courts of this country. The first case for consideration is the case of Mehboob All Malik v. The Province of West Pakistan (P L D 1963 Lah. 575). This case was heard by a Full Bench of five Judges, and the judgment was delivered by Mr. Justice Manzur Qadir. In regard to the principles, governing the grant of relief in cases where alternate remedy was available, criterion was laid down in paragraph 13 of the judgment appearing at page 581 of the Report. It profitable to re-produce the relevant passage :- The correct position therefore, seems to be-the adequacy of an alterna­tive remedy is to be judged in relation to the requisite relief. If the relief available through the alternative remedy, in its nature or extent is not what is necessary to give the requisite relief, the alternative remedy is not an other adequate remedy" within the meaning of Article

98. If the relief available through the alternative remedy, in its nature and extent, is what is necessary to give the requisite relief, the 'adequacy' of the alternative remedy must further be judged, with reference to a comparison of the speed, expense or convenience of obtaining that relief through the alternative remedy, with the speed, expense convenience of obtaining it under Article

98. But in making this comparison those factors must not be taken into account which would themselves alter if the remedy under Article 98 were used as a substitute for the other remedy." The case of Mehboob Ali Malik was referred to and approved by the Supreme Court in the case of Salahuddin and 2 others v. Frontier Sugar Mills & Distillery Ltd. (PLD 1975 SC 244 ). The relevant aspects of the case appear at pages 262 and 263 of the Report. In this case, the appellants had already filed a suit on the same cause of action, although a prayer bad been made to prevent the defendants from holding a meeting. Mr. Justice Anwarul Haq, who wrote the judgment on behalf of the Court, considered the words "no other adequate remedy", as used in the 1962 Constitution, and quoted the following passage from the case of Mehboob Ali Malik v. Province of West Pakistan with approval :- "adequacy of an alternative remedy is to be judged in relation to the requisite relief. If the relief available through the alternative remedy, in its nature or extent is not what is necessary to give the relief, the alternative remedy is not an "other adequate remedy" within the meaning of Article

98. If the relief available through the alternative remedy, in its nature and extent, is what is necessary to give the requisite relief, the adequacy of the alternative remedy must further be judged with reference to a comparison of the speed, expense or convenience of obtaining that relief through the alternative remedy, with the speed, expense or convenience of obtaining it under Article

98. But in making this comparison those factors must not be taken into account which would themselves alter if the remedy under Article 98 were used as a substitute for the other remedy...". In an earlier case from the Supreme Court, namely, Anjuman-e-Ahmadia, Sargodha v. The Deputy Commissioner, Sargodha (PLD 1966 SC 639), the Supreme Court had granted leave to consider whether the remedy byway of a suit was an adequate alternate remedy, as the order complained of appeared to be "one purporting to be made in exercise of public power, and suitable prima facie for scrutiny in the prerogative jurisdiction." It seems that the petitioners had filed some case before the Revenue Authorities in regard to their title to some land, and the Government had taken the position that the proper remedy was by way of a civil suit. A question arose, whether remedy by way of a suit disentitled a person from invoking the constitutional jurisdiction. Hamood-ur-Rehman, J., who delivered the judgment on behalf of the Court at page 647 of the Report summed up the position in the following words :- "On the other hand, if the remedy sought for is in substance a remedy which is available under the ordinary law then a suit and not the extraordinary remedy under Article 98 should be the appropriate remedy, for, the remedy provided by this Article is not intended to be a substitute for the ordinary forms of legal action. But where this is not the case the remedy by way of a suit can hardly be considered to be an adequate alternative remedy. A suit is by no means as inexpert. sive or speedy or beneficial a remedy as the remedy provided by this Article. Even in the first case where full redress can be given by an order contem­plated under sub-Article (2) of Article 98 if an alternative remedy by the law creating the right or obligations has been prescribed the Court has still to consider whether such a prescribed alternative remedy i, equally inexpensive, expeditious efficacious and beneficial." On a consideration of all the case-law and the opinion in the textbooks, it would appear that in cases where the petitioner demands performance of public duties, as distinct from private claims, the rule in regard to existence of alternate remedy cannot be applied with rigour. It would also seem that in cases, when an order in the nature of mandamus is sought, the Court would; also have to see, whether the alternate remedy available is equally efficacious, inexpensive, speedy and complete. It would be wrong to state that, if a suit could be filed on the same cause of action, a petition on the constitutional side shall not lie. If that were so, then in most cases declaratory relief, or a relief for specific performance would come to be equated with orders, normally passed by the High Court in exercise of constitutional jurisdiction, and it would not be wrong to say that, by laying down such principle, virtually the High Court would be robbed of its jurisdiction. No doubt, the High Court would be slow to grant a writ of mandamus, if an equally afficacious and speedy remedy is available in the ordinary jurisdiction, but the mere fact of remedy by way of a suit being available has never been considered to be a complete bar to the grant of constitutional remedies. The matter has to be considered from the angle, whether the demand is one for mere recovery of money,, or performance of a contract, as distinct from the petitioner seeking performance of public duty. The present case appears to be the most up case. The petitioner is not seeking money from the respondent on account of any contract, or, a debt. His case is that the Federal Investigation Agency had seized money, which he claims. His grievance is that, by the Federal Investigation Agency, or, the respondents withholding his money, they are not performing their public duties, or, at least have failed to perform their duties so that an order is sought from this Court to compel them to perform their duties by returning the amount to the petitioner. As stated above, a distinction has to be drawn in cases, where the claim is for money on account of a contract, as distinct from a claim, when the petitioner makes a claim on a public functionary. In cases of this nature, mandamus shall issue regardless c' the fact that a suit can be filed. On the other hand the remedy by way of a suit is neither equally efficacious nor speedy. In our view, the remedy by way of a suit is not expeditious and is highly time consuming. In the present set of circumstances, when there is no contest in regard to title and the petitioner is exacting only performance of a public duty, it would be vain to argue that remedy by way of a suit is a bar to this petition. The last question, that now arises, is in regard to the order that this Court can pass. The point in regard to availability of alternate jurisdiction, or, dispute on facts has been considered at length. Alternate remedy is not adequate, and, besides being time consuming, will manifestly put the peti­tioner to financial loss. Dispute on facts is illusory, and not substantial. There is no claim by any person other than the petitioner. It is not even raised as a point that the petitioner could not have been the owner of this property. In these circumstances, we direct that the amount in question shall be paid by the Federal Investigation Agency, or. the Federal Government t the petitioner. However, to safeguard against any other claimant turning u hereafter, we direct that the petitioner shall give security to the extent of the amount, and such security shall remain in force for a period of two years. If within such period any person turns up to claim the amount, the matter shall be laid before the Court once again for an appropriate order, as other wise the security shall get extinguished. after two years. We grant no relief against the Provincial Government of Sind as money in question was not even remitted to it. We also decline to grant any relief against respondent) Naseem Hassan Shah. The parties shall bear their own costs. Order accordingly.