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P L D 1968 Karachi 599

Before Illahi Bakhsh Khamisani, A, S. Faruqui and Anwarul Haq, JJ

S. M. YOUSUF AHD OTHERS‑Petitioners

versus

COLLECTOR OF CUSTOMS AND OTHERS---Respondents

Petitions Nos. 123 to 127, 132; 133 to 144 and 158 of 1967, decided on 14th September 1967.

(a) Sea Customs Act (VIII of 1878)

, S. 172sA (i)‑Search without warrant‑ Reasonableness of grounds to entertain belief as laid down in S.172‑A(i)‑Question amenable to judicial review -Court to adjudicate upon reasonableness of material and not upon its sufficiency‑[Per Anwarul Hag, J.].

While exercising the power of judicial review it is not the function of the Court to decide factual controversies, but merely to ascertain whether there was any material available to the relevant authorities which could furnish reasonable grounds for believing that action under section 172‑A of the Act was called for. The sufficiency of the material is not to be adjudicated upon by the Court but merely the reasonableness thereof.

(b) Sea Customs Act (VIII of 1878)

, S. 172‑A(i)(ii) & (iii) read with Constitution of Pakistan (1962), Art. 2‑Search without warrant‑Requirements of S. 172‑A‑‑ Safeguards‑Notice of search stating that credible information has been received without the grounds of belief having been recorded beforehand‑Such notice does not fulfil requirements of S. 172‑A‑Safeguards provided in S. 172‑A can be effective only if procedure prescribed is faithfully and honestly followed by application of mind in indivi dual case‑Customs Officer must prepare statement in writing of his belief before embarking upon search‑‑Failure amounts to breach of statutory provisions of S.172‑A‑Violation of constitutional guarantees provided in Art. 2, Constitution of Pakistan (1962)‑‑ Search and seizure so made, held, invalid‑‑‑[Per Anwarul Haq, J.]

L. O. Clarke v. Brajendra Kishore I L R 36 Cal. 433; I L R 39 Cal. 953; Maruti Sakra Gond and others v. Emperor A I R 1944 Nag. 328 and Nazir Ahmad v. Emperor ' A I R 1936 P C 253 (2) rel.

(c) Sea Customs Act (VIII of 1878)

, S. 172‑A (iv)‑Search without warrant‑Omission in delivering signed copy of statement to the occupier of premises at time of search or thereafter‑Does not have a; material bearing on legality of search‑[Per Anwarul Haq, J.].

(d) Sea Customs Act (VIII of 1878)

, Ss. 172‑A & 178‑Search without warrant‑Seizure of goods in consequence of illegal and invalid search under S. 172‑A‑Cannot be validated by S. 178 [Per Anwarul Haq, J.].

If the searches are held to be illegal, the same infirmity would attach to the seizure which is only in the nature of a necessary consequence of the searches immediately preceding the seizure.

Yusuf Ali v. Muhammad Aslam Zia and two others P L D 1958 S C 104; K. Hoshide and another v. Emperor A I R 1940 Cal. 97; In re: Muhammad Tahir A I R 1934 Born. 104; Tar Muhammad & Co. v. Crown P L D 1952 Sind 61; The Crown v. Nur Alain P L D 1955 Lah, 667; The Crown v. Subhan P L D 1956 B J 9; Kurma v. The Queen P L D 1957 P C 32; Radha Kishan v. The State of Uttar Pradesh A I R 1963 S C 822 and Mst. Sadan v. The State P L P 1965 B J 12 rel.

(e) Sea Customs Act (VIII of 1878)

, S.112‑A read with Constitution of Pakistan (1962), Arts. 2 & 98‑Goods seized in consequence of illegal and invalid search under S. 172‑A Petition tinder Art. 98, Constitution of Pakistan (1962), fore restoration of such goods‑Cannot be refused ‑Refusal of restoration- Nullification of constitutional guarantees under Art. 2, Constitution of Pakistan (1962)‑[Per A. S. Faruqui and ‑ Ilahi Bakhsh Kbamisani, JJ.].

Prabhu v. Emperor A I R 1944 P C 73; The Crown v. Mehar Ali P L D 1956 F C 106;11. S. K. Ibrat v. Commander‑in‑Chief, Royal Pakistan Navy P L D 1956 S C 264; Sh. Abdul Majid v. The State P L D 1958 Kar. 86; Abdul Noor alias Nur Meah v. The State P L D 1958 Dacca 145; H. N. Rishbud and another v. State of Delhi A I R 1955 S C 196; Din Dayal Sharma v. The State of U. P. A I R 1959 S C 831; Ex parte Susanna Scott (1829) 9 B & C 446; Queen v. Nelson and Brand, Charge to the Grand Jury, 2nd Edn., p. 118 and S. A. Haroon v. Collector of Customs Karachi P L D ,1959 S C 177 ref.

(f) Constitution of Pakistan (1962)

, Art. 98‑Principles for exercise of extraordinary jurisdiction of High Court under Art.98--- Different from principles of adjudication under Criminal Procedure Code (V of 1898)‑‑[Per A. S. Faruqui and Ilahoi Bakhsh Khamisani, JJ.].

(g) Constitution of Pakistan (1962)

, Art. 98 read with Art. 2 --Jurisdiction of High Court‑‑Explained.

The violations of the rights of people given to them under Article 2 are to be safeguarded under Article 98 of the Consti tution and the power to safeguard the violation of such rights is conferred upon the‑High Court. 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 aggrieve 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 the High 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 the Court for issuing writs of mandamus and prohibition under the late Constitution. The power given to the Court under Article 98(2)(a)(ii) is entirely a new power and is not relatable to the power 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)(1i). This part of Article 98 is very wide in scope and has 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 the country against infringement of any provision of law or of the 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 citizens of this country can only be given when the illegal order complained against is set at naught by a declaration of the High Court.

Mahboob Ali Malik v. Province of West Pakistan P L D 1963 Lah. 575 rel.

(h) Constitution of Pakistan (1962),

Art. 98‑‑Relief‑ Discretion of High Court‑Bona fide executive action done illegally-- Cannot be pressed into service as defence‑Executive action declared as illegal and without lawful authority‑Further declaration has to be made that such action is of no legal effect‑ [Per A. S. Faruqui and Ilahi Bakhsh Khamisani, JJ].

Article 98(2)(a)(ii) of the Constitution 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 is 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. Bona fade action of a functionary 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 inten tion to harass any one or without any ulterior motive has to be set aside without any regard for the intention of that function ary. 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 of 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 not. An illegal action, on the other hand, even when taken bona fide, has to be set aside.

A. K Brohi, Tufail Ali, Zia G. Shaikh and M. Safdar for Petitioners.

Shah Jamil Alam and Naeemuddin for Respondent.

Dates of bearing : 26th, 27th and 28th April 1967.

JUDGMENT

ANWARUL HAQ, J.

‑This judgment will dispose of Writ Petitions bearing Nos. 123 to 127, 132 to 144 and 158 of 1967, all of which raise a question of considerable importance regarding the validity of simultaneous searches conducted by Customs Officers at the premises of the petitioners and of several others, from the 27th to the 29th of March 1967. The petitioners are dealers in cloth, and their premises were searched with a view to unearthing and seizing cloth of foreign origin alleged to have been brought into Pakistan in contravention of various restrictive regulations, and without the payment of Customs duty. In some cases a detailed inventory of the cloth seized was prepared and witnessed by Mashirs; whereas in several others the cloth was packed in sealed boxes supplied by the petitioners and taken away to the Customs House at the Karachi Port, and the petitioners directed to attend on the following day for the purpose of assisting in the preparation of detailed inventories. In some of the petitions a lengthy narrative is given complaining of the unreasonable attitude of some of the Officers conducting the searches, but it seems to me unnecessary to mention those details, as nothing turns upon them. It is common ground between the petitioners and the Customs authorities that at the time of commencing the search a cyclostyled notice was supplied to the owners or occupiers of the premises; and it will be useful to reproduce the same at this stage:---

"Notice for search under section 172 (A) of the Sea Customs Act;‑Whereas credible information as beers received that certain documents/prohibited and restricted goods/gold bullion forged to effect illicit import of foreign goods have been prepared and secreted in‑‑‑‑the premises known as‑‑ and whereas it is not expedient to take a search warrant, the said premises are being searched under section 172 (A) of the Sea Customs Act, after serving this notice on you."

2. In the blank spaces indicated in the above reproduction the particulars of the premises to be searched and of the owner or occupier thereof have been inserted in each case. This notice purports to be signed by Superintendent/Inspector, Special Branch, Customs House, Karachi.

3. In Petition No. 132 of 1967 on behalf of Manchester House it is asserted that even this cyclostyled notice was not supplied to the petitioner, but in the counter‑affidavit filed by the Lays Officer of the Customs Department it is stated that the petitioner created such a row that the Customs Officers conducting the search forgot to leave the notice at his premises. However, even in this case I shall proceed on the assumption that such a notice was supplied to the petitioner, as it is clear from the facts appearing in all these cases that this was the procedure adopted by the Customs authorities at the time of conducting the search.

4. At one time during the course. of arguments it was suggested by Mr. Shah Jamil Alam, the learned counsel appearing for the respondents, that as a matter of fact detailed reasons had been recorded by the Customs Officials concerned before leaving the Customs House for the purpose of conducting these raids, and a file was produced before us containing some sort of a, report prepared by one of the Officers conducting the searches. It was, however, submitted by Mr. Shah Jamil Alam that the report was in the nature of a secret document and should not be shown to the petitioners or their counsel. The Law Officer of the Customs Department also made a statement before us in an effort to explain the procedure adopted by the Collector off Customs before organising these raids. According to him, certain launches had been intercepted while bringing goods to Pakistan, and on the interrogation of the members of ‑, their crews it transpired that a lot of smuggled goods were being brought to Karachi and sold in the, market. Through informers the names of the petitioners and others were gathered and it was on this basis that the Collector of Customs deputed several Officers to hold further investigations and to organise the raids in question. However, even from the statement of the Law Officer the tangible position which emerges is that as far as the petitioners were concerned the only document supplied to them was the cyclostyled notice which had been previously signed by an Officer at the Customs House, and the particulars of the petitioners and their premises were filled in the blank spaces at the time the searches were commenced. In these circumstances, I do not propose to take note of the secret report which was so generously placed before us by Mr. Shah Jamil Alam. In any case, as no copy of the report in question had been supplied to the petitioners at the time the searches were carried out, this report is irrelevant for the purpose of section .172 (A) of the Sea Customs Act (hereinafter referred to as the Act).

5. The case for the petitioners was argued before us by Messrs A. K. Brohi and Tufail Ali Abdur Rehman, who submitted that the searches in all these cases were conducted in utter violation of the statutory provisions contained in section 172 (A) of the Act and must, therefore, be declared to be without lawful authority and of no legal effect, with the necessary consequence that the illegally seized cloth must be restored to the petitioners. The learned counsel submitted that section 172 (A) was never intended for permitting large scale terrorisation of respectable merchants dealing in foreign goods; and that the disregard of statutory provisions has had the effect of violating the guarantee contained in Article 2 of the Constitution of the Islamic Republic of Pakistan which lays down that "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 every other person for the time being within Pakistan"; and in particular that "no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law." It was emphasised by the learned counsel that the illegal searches and raids carried out by the Customs Officials had not only resulted in unlawful seizure of property belonging to the petitioners, but had also damaged their reputation and standing in the commercial world by insinuating that the petitioners were indulging in anti‑social activities by dealing in smuggled cloth.

6. In order to appreciate the contentions raised on behalf of the petitioners it is necessary to reproduce here sections 172 and 172 (A) of the Act. Section, 172 runs as under :‑--

"Any Magistrate may, on application by a Customs Collector, stating his belief that dutiable or prohibited goods or any documents relating to such goods are secreted in any place within the local limits of the Jurisdiction of such Magistrate, issue a warrant to search for such goods, or documents.

Such warrant shall be executed in the same way, and shall have the same effect, as a search‑warrant issued under the law relating to Criminal Procedure."

7. Section 172 (A) is in the following terms :‑‑

"(1) Whenever any officer of Customs or person duly employed for the prevention of smuggling has reasonable grounds for believing that smuggled goods are concealed or kept in any place and that there is a danger that they may be removed before a search can be effected under the provisions of section 172 he may, after preparing a statement in writing of the grounds of his belief and of the goods for Which search is to be made, search or cause search to be made for smuggled goods in that place. Any Officer or person who makes a search, or causes a search to be made, under the foregoing provision shall leave a signed copy of the afore‑mentioned statement in or about the place searched and shall, at the time the search is made or as soon as is practicable thereafter, deliver furthermore a signed copy of such statement to the occupier of the place at his last known address. All searches made under this section shall be carried out mutatis mutandia in accordance with the provisions of the Code of Criminal Procedure, 1898.

(2) ...

(3) .

(4) "

8. It will be seen that the normal procedure envisaged dry section 172 of the Act is that the Customs officials shall obtain a search‑warrant from a Magistrate of competent jurisdiction, and that such warrant shall be executed in the manner prescribed by the Code of Criminal Procedure. Section 172 (A) constitutes a departure from this normal procedure and it is for this reason that the Legislature has, in its wisdom, placed certain limitations on the power so conferred on the Customs officials. The requirements contained in section 172 (A) may be listed as follows :‑--

(i) The Customs Officer should have reasonable grounds for believing that (,a) smuggled goods are concealed or kept in any place, and (b) there is a danger that they may be removed before a search can be effected under the provisions of section 172,

(ii) he shall prepare a statement in writing of the grounds of his belief on both the points mentioned above, and of the goods for which search is to be made,

(iii) after preparing such a statement he may search or cause search to be made for smuggled goods in that place,

(iv) at or about the time of conducting the search the Officer shall leave a signed copy of the aforementioned statement in or about the place searched,

(v) he shall also deliver, at the time the search is made or as soon as is practicable thereafter, a signed copy of such statement to the occupier of the place at his last known address, and

(vi) that all searches made under this section shall be carried out in accordance with the provisions of the Code of Criminal Procedure, 1898.

9. The case for the petitioners is that none of the require ments prescribed by section 172 (A) of the Act were complied with by the' Customs officials, as there‑ were no reasonable grounds for the belief mentioned in the section, nor was any written statement of such grounds of belief prepared by the officials concerned before embarking on these searches, and no copy of the required statement was supplied to the petitioners at the time of the search; nor was any such copy delivered to them after the search. On behalf of the respondents Mr. Shah Jamil Alam submitted that reasonable grounds were available to the Collector of Customs and his subordinate Officers for believing that smuggled goods were concealed or kept in the places belonging to the petitioners, and that these goods would be removed before a search could be effected under the provisions of section 172; and that the notice under section 172 (A) of the Act prepared and signed by the Customs Officers before commencing the searches was in the nature of the written statement envisaged by the section. It was further submitted by Mr. Shah Jamil Alam that the failure of the officials concerned to deliver a signed copy to the occupier of the premises at his last known address was really not germane to the legality of the search, and was only in the nature of something which had to be done after the event. The learned counsel for the respondents further contended that, in any case, the omissions pointed out on behalf of the petitioners amount to mere irregularities which would not vitiate the search, as the power to search without warrant was not dependent on the recording of the statement of the grounds of his belief by the Customs official, but arose from the statutory recognition of the necessity to search without warrant in certain situations calling for immediate preventive action.

10. During the, course of arguments Mr. Brohi drew our atten tion to certain reports appearing in two newspapers of Karachi, namely, the Daily "Anjam" and the Daily "Morning News", of a Press Conference said to have been held by the Collector of Customs to explain the background of the largo scale raids carried out by the Customs Department. In these Press Reports the Collector of Customs is stated to have explained that the raids had been organised to discover the source of smuggled goods, by compelling the petitioners and others to disclose the manner in which they obtained these goods. Several other statements regarding the desirability of putting an end to smuggling operations are also attributed to him, and then certain facts and figures are given to show that foreign cloth of certain types had not been allowed to be imported into Pakistan for the last several years, thus raising a presumption that any cloth of this variety found in the market had originated from illegal sources. In a counter‑affidavit filed by the Law Officer of the Customs Department the report appearing in the Daily "Anjam" was denied altogether, whereas the one appearing in the "Morning News" was partly owned and accepted. Messrs Brohi and Tufail Ali Abdur Rehman contended that they could demonstrate, by reference to Government's own re6ords, that some of the assertions made by the learned Collector of Customs at his Press Conference were incorrect, and that large quantities of the relevant types of foreign cloth had been permitted to be imported into Pakistan over the last several years, thus making it legally available to the petitioners for sale in the open market.

11. Basing himself on these Press Reports and the material said to be available with the petitioners, Mr. Brohi contended that there did not exist reasonable grounds for the belief said to have been entertained by the Customs officials that smuggled goods were lying concealed in the premises belonging to the petitioners and that they would be removed if recourse was had to the normal procedure mentioned in section 172 of the Act. The learned counsel also referred to several authorities in support of the proposition that whenever the requirement is regarding the existence of "reasonable ground for believing", the matter is justiciable. In particular he placed reliance on Ahmad Zafar v. The District Magistrate, Rawalpindi (P L h 1960 Lah. 952) and Abut Al'a Maudoodi v. The Government of Pakistan, etc. (P L D 1964 S C 613).

12. In the first‑mentioned case a Division Bench of this Court observed, "with reference to section 12(1)(ii) of the Security of Pakistan Act, that 'reasonable ground' means reasonable in fact. The wording of this section shows that it is not merely the subjective satisfaction of the authority passing the order that would validate an order. The amendment of section 12, by which the words 'reasonable ground' were inserted in it, was made in order to give effect to the provisions of the late Constitution, and apparently, words referring only to a subjective satisfaction were deliberately not used . . . . : '

13. In the case of Maulana Abut A'la Maudoodi, the learned Chief Justice examined at some length the concept of what is usually described as "a purely subjective judgment or satisfaction" in the exercise of certain administrative functions by the Executive, and observed that he found it difficult to agree with most of the decided cases in which the opinion had been expressed that in acting under various restrictive laws the Provincial Government exercised a purely subjective judgment. He observed that "the scope for exercise of personal discretion is extremely limited. It is indeed difficult to make any appreciable allowance for the play of a personal equation where the judgment has to be formed as to matters relating to the administration of law, the maintenance of law and order and prevention of danger to public peace, such as attract the exercise of judgment by a host of Government officials at all levels, as a part of their ordinary day‑to‑day duties. Should, therefore, the Courts be asked to shut their eyes to all the facts and circumstances, and to consider themselves bound to hold the action to be within the section merely because the section employs the word 'opinion', there would be involved a denial of the judicial function in a field where that function is most directly attracted, namely, the maintenance of liberties of the subject under a written Constitu tion and where moreover the judicial mind is both apt and accustomed to travel with the utmost confidence " His Lordship ''then went on to review some English cases and reached the conclusion that the question whether in a given case there was a reasonable cause, as distinct from sufficient cause, was open to judicial review, and that the Court would confine its inter ference to a case which was destitute of evidence. The other Wined Judges of the Supreme Court do not appear to have adverted to this question, but it. is clear that the observations made by the learned Chief Justice are entitled to the utmost weight.

14. Respectfully following these observations, would agree with Mr. Brohi that the question whether in the instant case there were reasonable grounds for the customs officials to' entertain the belief mentioned in section 172 (A) of the Act amenable to judicial review. From the counter‑affidavits placed on the record by the officials of the Customs Department and also from the Press Reports produced by the petitioners themselves it does appear that there ware reasonable grounds for the Officials concerned to believe that smuggled goods had found their way into the market and that they were lying concealed in the premises of the petitioners. It has already been stated that the Law Officer of the Customs Department has clarified in his counter‑affidavit as well as in his statement recorded by us that concrete information had been obtained by the investigating officers that the petitioners and others had smuggled cloth in their possession. It is true that the learned counsel appearing for the petitioners offered to demonstrate that the allegations were not correct, but while exercising the power of judicial review it is not the function of the Court to decide factual controversies, but merely to ascertain whether there was any material available to the relevant authorities which could furnish reasonable grounds for believing that action under section 172 (A) of the Act was called for. As pointed out by the learned Chief Justice the sufficiency of the material is not to be adjudicated upon by the Court but merely the reasonableness thereof. Judged in the light of these principles, I would hold that in the instant case reasonable grounds did exist for the belief entertained by the Customs officials for proceeding under section 172 (A) of the Act.

15. The petitioners are, however, on firmer ground when they contend that the second requirement contained in section 172 (A) to the effect that the Customs Officer shall prepare a statement in writing of the grounds of his belief, has not been complied with in these cases. As already pointed out, the only document available in these cases is the so called notice under section 172 (A) of the Act. I am clear in my mind than this notice falls far short of the relevant requirement laid down by the statute. In the first place, this is a cyclostyled Ann stereotyped document merely stating that "credible information has been received . . . . . ", thus showing beyond doubt that the Customs Officer concerned did not apply his mind to each individual case. The notices were already available at the Customs House and they were filled in at the spot by the officer concerned before commencing the search of a particular premises. In many cases they had already been signed by officers who neither searched the premises, nor caused the search to be made. Such a procedure can, hardly satisfy the requirement of the law that before embarking upon a search without warrant the Customs Officer shall prepare a statement in writing f the grounds of his belief that smuggled goods are concealed or kept in any place and that there is a danger that they may be removed before a search can be effected under the provisions of section 172 of the Act. The law further require that the statement must also mention the goods for which the search is to be made. These are stringent requirements prescribed by law in order to ensure that the enormous power of search without warrant given to Customs Officers is exercised honestly and judiciously. By insisting that the grounds, for his belief shall be recorded before hand by the Customs Officer concerned the law seeks to ensure that the search without warrant is made for a bona fide purpose and on reasonable grounds which can be tested later, if challenged by the aggrieved party. To put it differently, it seems to me that this is a safeguard prescribed by the Legislature to ensure that the rights of the citizen in respect of private property are interfered with only for genuine reasons related to the prevention of smuggling and evasion of Customs duty, etc. This safeguard can be effective only if the procedure prescribed by law is faithfully and honestly followed by application of mind in each individual case. The notice relied upon by the Customs authorities does not fulfil these requirements.

16. This conclusion is further strengthened by the fact that the Customs officials concerned did not even take the trouble of scoring out those portions of the notice which were not applicable in these cases. The words "certain documents/ prohibited and restricted goods/gold bullion forged to effect illicit import of foreign goods have been prepared" were allowed to stand in all the notices served on the petitioners. On a plain reading of the notice it is difficult to make out whether the search was being conducted for "certain documents" or "prohibited and restricted goods" or for "gold bullion"; and it is also difficult to make out whether each of these articles were suspected to have been "forged to effect illicit import of foreign goods". There is no mention at all in these notices that the search was to be for foreign cloth of certain varieties. It was submitted by Mr. Shah Jamil Alam that as the raids were carried out on cloth shops, it would be apparent that the object of the search was to recover foreign cloth and, therefore, the failure of the officials to score out the words and phrases which were inapplicable did not vitiate the notice or the statement in question. I regret I cannot subscribe to this view, as it is not difficult to envisage a situation where reasonable grounds may exist for the belief that forged documents or smuggled gold bullion or other prohibited and restricted goods are concealed in a shop which ostensibly deals in cloth.

17. The omnibus character of the notice served by the Customs Officers on the petitioners does indeed support their contention that the object of the raids was merely to embark upon what is called "a fishing process" in the hope that something incriminating might be discovered. This is clearly not the object underlying section 172 (A) of the Act. I have no difficulty or hesitation in agreeing with Mr. Brohi that the power conferred by this section is of a particular and specific nature, authorising the search of specified premises for goods of a specified type. It Is, of course, clear that no one could insist that a minute description of the goods to be searched should be included in the written statement; it would obviously suffice if the description of the goods to be searched is as explicit or specific as it is possible in the circumstances of the case so as to permit a proper and reasonable identification of the goods concerned. While holding this view, I am, however, willing to agree that there is nothing in law to prohibit simultaneous searches of a large number of premises for an identical purpose, provided that in each case the requirements of the section were honestly, diligently and faithfully complied with.

18. It was conceded by Mr. Shah Jamil Alam that apart from leaving this notice at the premises of the petitioners no further copy of the statement or notice in question was supplied to the occupier of the place at his last known address as contemplated by the last part of section 172 (A). However, the omission to do so does not appear to me to have a materia bearing on the legality of the search, for the reason that this is an additional requirement which has to be complied with after the event, and its omission could be made good even a later stage. The real safeguard to the individual citizen lies in the fundamental requirement that a statement in writing must be prepared by the Customs Officer before he embarks upon the search. It is clear that if this is not done, then there is not only a breach of the relevant statutory provision as contained in section 172 (A) of the Act, but there is also a violation of the Constitutional guarantee contained in Article 2 of the Constitution, namely, that "no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law." The power conferred by section 172 (A) on the Officers of the Customs Department being of a drastic nature, capable of doing immense harm to the rights and reputation of the individual, the Courts must insist that the requirements of the law be strictly complied with before the search is undertaken, and failure to do so must invalidate the search.

19. There is no merit in the contention advanced by the learned counsel for the respondents that the omission to record the necessary statement in writing merely amounts to an irregularity such as would not invalidate the search. It has been seen that this requirement is in the nature of a fundamental safeguard against an arbitrary encroachment by the Executive Officers on the rights and liberties of the subject, and accordingly it is not a mere matter of procedure, the disregard of which would not invalidate the search. In L. O. C. Larke v. Brajendra Kishore (I L R 36 Cal. 433) the learned Judges were considering the question of the legality of a search purporting to have been conducted under section 25 of the Indian Arms Act (XI of 1878) which contained a provision that before making the search the Magistrate should first record the grounds of his belief in terms of the section. The majority held that according, to principles of equity, justice and good conscience the search constituted an actionable trespass unless warranted by some statute, and in the circumstances of the case search was warranted by no statute, as reasons were not recorded before embarking upon the search. The learned Judges observed that "when Executive Officers are invested with statutory powers of a special or drastic nature, before exercising these powers, they must strictly comply with the provisions o: the Act which created them." This view was upheld by their Lordships of the Privy Council in I L R 39 Cal. 953, when the above Case went up in appeal there. A similar view was adopted in Moruti Sakra Gond and others v. Emperor (A'I R 1944 Nag. 328) while dealing with certain provisions of the Public Gambling Act, 1867. A Police officer had entered and searched a premises without obtaining a warrant; under section 5 of the Act, and in these circumstances it was held that the procedure laid down in section 10 of the Act empowering a Magistrate to examine an accused person as a witness on certain conditions could not be invoked, as one of the conditions, namely, that the person must be found in a place which has been entered upon the provisions of the Act, was not fulfilled.

20. Again, in Nazir Ahmad v. Emperor (A I R 1936 P C 253) the Privy Council, while considering the admissibility of oral evidence given by a Magistrate with regard to a confession made by the accused person, observed that "the role which applies is that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden . . . . . ." It, therefore, follows that if an essential condition prescribed by law for carrying out a search without warrant has not been observed, the search must be held to be invalid, especially when it is remembered that the procedure embodied in section 172 (A) of the Act is a departure from the normal procedure contained to section 172 which enjoins recourse to a Magistrate, thus ensuring that a judicial mind is brought to bear on the question of the necessity and desirability of a search.

21. Having found that the searches carried out in these cases were not in accordance with law, the question still remains as to what order should be made in the matter of the grant of the relief to the petitioners. On behalf of the petitioners it was, of course, emphasised' that once it is found that the Customs officials have hated ; without lawful authority in conducting these searches, the only order that the Court can make is to direct the restoration of the cloth illegally seized by these officials, for the reason, that any superstructure built on the basis of an unlawful/act must collapse. In this behalf strong reliance was placed by Mr. Brohi on Yusuf Ali v. Muhammad Aslam Zia and two others (P L D 1958 S C 104) in which it was observed by their Lordships that "if on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities the whole series of such orders, together with the superstructure of rights and obligations built upon them, must, unless some statute or principle of law recognising as legal the changed position of the parties is in operation, fall to the ground because such orders have as little legal foundation as the void order on which they are founded." It was submitted by Mr. Brohi that the seizure of the cloth in question having been effected as a result of an illegal search, must not be allowed to stand, otherwise the petitioners will be seriously prejudiced for the reason that the presumption envisaged by section 177‑A of the Act will be drawn against them, 'and the burden of proving that the goods had been lawfully imported into Pakistan would be on the petitioners.

22. Mr. Tufail Ali Abdur Rehman also drew our attention to at least three cases in which documents illegally seized were ordered to be returned. All these cases related to proceedings under the Sea Customs Act, in which a search had been carried out on a warrant issued under section 96 of the Criminal Procedure Code. In K. Hoshide and another v. Emperor (A I R 1940 Cal. 97) it was held that the third clause of section 96 (1) of the Criminal Procedure Code had nothing whatsoever to do with an investi gation. It did not provide for any step to be taken in aid of an investigation. It provided for something which the Magistrate might do for the purpose of serving an inquiry, trial or other proceedings under the Code, clause (3) did not empower the issue of the warrant to help investigation by the police and the Customs authorities. It was further observed that "when it appears that a Magistrate has not applied his mind in the manner required by law, and when it appears that action has been taken on insufficient material, the High Court will always interfere". On this view of the matter, it was directed that the documents seized from the petitioners should be returned to them forthwith. It may be stated that the documents in question were needed by the Customs authorities for carrying out investigation into alleged offences connected with evasion of customs duty by under‑valuation of cotton‑piece goods. The same view was adopted in re: Muhammad Tahir (A I R 1934 Bom. 104) and the documents were ordered to be returned. Both these cases were followed in Tar Muhammad & Company v. Crown (P L D 1952 Sind 61) and the consequential order made was in same terms.

23. On behalf of the respondents it was submitted by Mr. Shah Jamil Alam that even if the searches in these cases be held to be invalid or illegal, that would not provide sufficient justification for ordering a restoration of the goods which had been seized by the Customs authorities as a result of these searches, because the cloth in question was now the subject matter of an inquiry into the alleged commission of offences made punishable under item 81 of section 167 of the Act. It was contended by the learned counsel for the respondents that the illegality of the search did not, by itself, vitiate proceedings which were in the contemplation of the Customs authorities and which could not be started because of the stay order issued by this Court. Finally, the learned counsel made the point that, in any case, there was a distinction under the Act between a search and a seizure, and that goods could be seized under section 178 of the Act independently of any search conducted under sections 172 and 172 (A) and, therefore, it could be presumed that the goods had now been seized by the Collector of Customs under section 178 of the Act. In support of his contention that an illegal search did not vitiate subsequent proceedings under the law Mr. Shah Jamil Alam placed reliance on The Crown v. Nur Alam (P L D 1955 Lah. 667), The Crown v. Subhan (P L D 1956 B J 9), Kuruma v. The Queen (P L D 1957 P C 32), Radha Kishan v. The State of Uttar Pradesh (AIR 1963 S C 822) and Mst. Sadun v. The State (P L D 1965 B J 12). As regards the burden of proof imposed on the petitioners under section 177‑A of the Act, Mr. Shah Jamil Alam submitted that the same position obtains under item 81 of section, .167 of the Act, and therefore, not much importance could be attached to the grievance of the petitioners that section 177‑A would be invoked against them if the seizure of the goods was allowed to stand.

24. I do not find much substance in the argument that in a case of the present kind it is possible to draw a distinction between a search and a seizure on the ground that the power of seizure is given by section 178 of the Act, which is independent of the provisions contained in sections 172 and 172(A). It is true that section 178 provides that "anything liable to confiscation under this Act may be seized in any place, either upon land or water, by any officer of Customs or other person duly employed for the prevention of smuggling", and that section 181 further provides that "when anything is seized, or any person is arrested under this Act, the officer or other person making such seizure or arrest shall, on demand of the person in charge of the things so seized, or of the person so arrested, give him a statement in writing of the reason for such seizure or arrest", yet these two sections cannot be said to stand independently if the seizure is not made directly upon land or water, but is effected as a result of a search carried out under the provisions of section 172 or 172 (A) of the Act. It will be seen that the necessity for a search under either of these two sections arises only when the goods are not directly available for seizure under the power conferred and procedure envisaged by section 178 of the Act. In these circumstances, the search and the subsequent seizure cannot be separated from each other so as to constitute two distinct processes, such as would enable the seizure to be viewed independently of the search. The facts brought out by the respondents themselves show that the seizure of the goods was possible only because of the searches carried out under section 172 (A) of the Act. If, therefore, the searches are held to be illegal, the same infirmity would attach to the seizure which is only in the nature of a necessary consequence of the searches immediately preceding the seizure.

25. But the question which does need serious consideration in the present context is whether the contemplated proceedings under item 81 of section 167 of the Act can be said to be vitiated for the reason that the searches and seizures preceding the initiation of those proceedings were illegal and without lawful authority. In the cases relied upon by Mr. Shah Jamil Alam it was held that any illegality or infirmity attaching to the investigation stage did not vitiate the subsequent trial, nor did it create any jurisdictional defect in the trial Court. The Question was dealt with, at some length, by S. A. Rahman, C. J. in The Crown v. Nur Alum and the conclusion reached by the learned Judge was that even if the investigation had not been in conformity with the legal provisions of the proviso to section of the Prevention of Corruption Act, it did not necessarily follow that the subsequent trial was vitiated, and this in spite of the fact that the prosecution could not invoke section 156 (2) the Code of Criminal Procedure in respect of an un-authorised investigation. The learned Chief Justice further held that the trial Court had to decide the case on the basis of the evidence led before it, and the mere fact that the agency which collected such evidence was in law not authorised to do so, should not introduce an inherent jurisdictional defect in the Trial Court. The learned Judge concluded his discussion on this point by observing that "infringement of the proviso to section 3, Prevention of Corruption Act, should be regarded merely as an irregularity falling within the ambit of section 537 of the Criminal Procedure Code, and unless it has caused actual prejudice to the accused, it should not be held to vitiate the trial." While reaching this conclusion his Lordships also took note of the fact that under section 190 (1) (b) of the Criminal Procedure Code a Magistrate could take cognizance of a case on a report made by a Police Officer in a non‑cognizable offence which he had not been duly ordered by a Magistrate to investigate. While referring to the large number of authorities cited at the Bar, his Lordship placed particular reliance on the dictum of the Privy Council in Prabhu v. Emperor (AIR1944PC73) in which it was held that the illegal arrest of the accused in an Indian State by a Police Officer from British India did not vitiate the subsequent proceedings.

26. The same view was reiterated in the cases of The Crown v. Subhan and Kuruma v. The Queen. In the latter case the question was regarding the admissibility of evidence obtained as a result of a search conducted by an officer who was not authorised to do so, and their Lordships observed that "the test to be applied in considering whether evidence as to a search held by an un-authorised person is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the Court is not concerned with how the evidence was, obtained." In Mst. Sadan's case again the question was whether investigation in a non‑cognizable offence by a police officer not authorised to do so vitiated the subsequent trial, and, it was held that "the investigation by the police is an antecedent proceeding. It does not serve as the foundation stone, nor as a sine qua non of a valid trial in Court. A police officer who investigates an offence which be is not empowered to investigate or makes an arrest where he is not so empowered, may find himself in difficulty during investigation if he is defied or resisted, and the law may not give him any protection, or he may make himself liable to criminal or civil action in certain circumstances, but it is difficult to see why this disability should attach itself to the proceedings in Court, or prevent a Court of lave from taking cognizance of the offences on a report submitted by him under clause (1) (b) of section 190 of the Code of Criminal Procedure or prevent a Court from assessing the value of evidence placed before it in the absence of a clear enactment, express or implied, preventing the Court from doing so. There is nothing in law to prevent a police officer from making a complaint in a case of which the facts have come to his knowledge and which he cannot ‑investigate. In any case, the jurisdiction of a Court cannot be ousted merely because a report was submitted by a Police Officer who was not authorised to investigate."

27. Finally fn the case of Radha Kishan while dealing with the effect of an alleged illegality of a search conducted under the Code of Criminal Procedure, the learned Judges observed that "so far as the alleged illegality of the search is concerned, it is sufficient to say that even assuming that the search was illegal the seizure of the articles is not vitiated. It may be that where the provisions of sections 103 and 165, Code of Criminal Procedure, are contravened the search could be resisted by the person whose premises are sought to be searched. It may also be that because of the illegality of the search the Court may be inclined to examine carefully the evidence regarding the seizure. But beyond these two consequences no further consequence ensues." It may be stated here that section 165 of the Criminal Procedure Code is couched practically in the same terms as section 172 (A) of the Act, inasmuch as section 165 of the Criminal Procedure Code also enjoins the police officer to record in writing the grounds of his belief for carrying out a search without warrant, before embarking upon the search, and in this written statement he has to specify, so far as possible, the thing for which the search is to be made.

28. Apart from the cases cited by Mr. Shah Jamil Alam, there are several others as well in which a similar view has been taken, namely, that any illegality in the investigation preceding a trial does not invalidate the trial itself. Mention may be made of The Crown v. Mehar Ali (P L D 1956 F C 106), M. S. K. Ibrat v. Commander‑in- Chief, Royal Pakistan Navy (P L D 1956 S C 264), Sh. Abdul Majid v. The State (P L D 1958 Kar. 86), Abdul Noor alias Nur Meah v. The State (P L D 1958 Dacca 145), H. N. Rishbud and another v. State of Delhi (AIR 1955 S C 196) and Din Dayal Sharma v. The State of U. P. (AIR 1959 S C 83)).

29. It is correct that in some of the cases cited above .the validity of the trial was also saved on the ground that even though the investigation' was conducted by an officer not authorised, the Magistrate could take cognizance under the relevant clause of section 190 ((1829) 9 B & C 446) of the Code of Criminal Procedure, but the principle enunciated in all these cases is that the jurisdiction of the Court is not dependent upon the legality of the antecedent investigation. This principle was forcefully brought out by the Privy Council in Prabhu v. Emperor where the proceedings had been initiated on the basis of an illegal arrest, and again by our own Supreme Court in the case of M. S. R. Ibrat. In that case his Lordship the Chief Justice, who delivered the judgment of the Court, referred with approval to the dictum in ex parte Susanna Scott (1) and to the obser vations of Lord Cockburn, C. J. in his charge to the jury in the. Queen v. Nelson and Brand charge to the Grand Jury, 2nd Edn., p. 118 to the following effect:

"Suppose a man to commit a crime in this country, say murder, and that before he can be apprehended he escapes into some country with which we have not an Extradition Treaty, so that we could not get him delivered up to us by the authorities, and suppose that an English Police Officer were to pursue the malefactor, and finding him in some place where be could lay hands upon him and board a ship and brought him to England, and the man were to be taken in the first instance before a Magistrate, the Magistrate could not refuse to commit him. If he were brought here for a trial, it would not be a plea to the jurisdiction of the Court that he had escaped from justice and that by some illegal means he had been brought back. It would be said Nay you are here; you are charged with having committed a crime and you must stand your trial. We leave you to settle with the party who may have done an illegal act in bringing you into this position; settle that with him."

30. Now, it is common ground between the parties that the ultimate object of the searches carried out in these cases is to take proceedings under item 81 of section 167 of the Act, which provides two alternative procedures for dealing with such a matter, namely, (a) by the Collector of Customs ordering confiscation of the goods and the levy of a penalty not exceeding five times the value of the goods and (b) prosecution in a Court of law entailing a sentence of imprisonment and/or fine on conviction. It seems to me that in view of the over whelming weight of authority the prosecution of the petitioners in a Court of law could not be held to be vitiated on account of the illegal search and seizure of the goods, and it had to be held that the Court would have jurisdiction to try the offence and the offenders in respect of the goods seized as a result of the illegal search in question. Of course, it would be for the Court to take note of the illegality attaching to the search for the purpose of determining whether the presumptions mentioned in section 177‑A and item 81 of section 167 of the Act could be raised against the petitioners in the peculiar circumstances thus created. But the fact would, however, remain that the jurisdiction of the Court to proceed with the trial could not be denied on the ground that the goods had been illegally seized by the Customs authorities antecedent to the prosecution of the petitioners.

31. Such being the legal position with regard to the validity of a trial before a Criminal Court, I have anxiously considered whether the position is materially different if instead of being prosecuted in a Court of law the petitioners are dealt with departmentally by the Collector of Customs purporting to act under item 81 of section 167 read with section 182 of the Act. It has already been stated that show‑cause notices could not be issued in this behalf by the Collector‑ of Customs on account of a stay order granted by this Court in these petitions. It seems to me that the liability of the petitioners to be dealt c with under item 81 of section 167 of the Act, and the jurisdiction of the Collector of Customs to proceed under this item, are not dependent upon the actual seizure of the goods from the petitioners possession, but on the allegation that the petitioners were in possession of actionable goods or that they were in any manner concerned in carrying, removing, depositing, harbouring, keeping or concealing or, dealing with such goods. I am unable to discover any appreciable distinction, in the present context, between a trial in a Court of law and departmental proceedings before the Collector of Customs acting under the relevant statute. I would, therefore, hold that 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.

32. The three cases on which Mr. Tufail Ali Abdur Rehman relied to show that the documents illegally seized were ordered to be returned to the persons concerned appear to me to be distinguishable for the reason that in those cases the question about the legality of the subsequent proceedings by way of trial or departmental inquiry by the Collector of Customs was not considered. Another distinguishing feature seems to be that the learned Judges, who dealt with those cases, held that the searches were without jurisdiction as section 96 of the Code of Criminal Procedure was not intended to be used in aid of the Customs authorities during the investigation stage. In the instant case, the allegation is not that the Customs officials who carried out the searches did not have the jurisdiction to act under section 172 (A); on the contrary the complaint is that they acted illegally in the exercise of that jurisdiction. 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. 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.

33. It was submitted by Messrs Drohi and Tufail Ali Abdur Rehman that if the illegal seizure is allowed to stand, the petitioners would be seriously prejudiced for the reason that the Collector of Customs would then invoke the presumption arising under section 177‑A‑ of the Act. It was pointed out by the learned counsel for the petitioners that in several of these cases there was an averment in the petitions that the petitioners had offered at the spot to satisfy the Customs officials concerned regarding the genuineness of their import documents relating to the cloth seized, but the officials did not afford any such opportunity on the ground that this was a matter to be decided later by the Collector of Customs. The reply of Mr. Shah Jamil Alam on this point was that irrespective of section 177‑A certain presumptions could be raised against the petitioners under item 81 of section 167 of the Act. I consider that in the present proceedings I am not called upon to answer the question whether in the circumstances brought out on the record in these cases the presumptions mentioned in section 177‑A and item 81 of section 167 of the Act can legitimately be raised against the petitioners. The proceedings have not yet commenced before the learned Collector of Customs, and it would be for him to decide this question in the first instance. I would not, therefore, express any opinion on this question at this stage, except to add that the mere fact that the mere fact that the custom authorities may draw the presumptions mentioned. In the two sections concerned does not seem to me to justify a departure from the view so ably and exhaustively expressed in the large number of authorities regarding the validity of subsequent legal proceedings of trials.

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.

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