' DOST MUHAMMAD KHAN, J.-Brief facts leading to this constitutional petition are that Toyota Corolla Car Registration No,G-8032 Model 1988 was seized by the Custom Squad at D.I. Khan on the information that it was a smuggled one. After completing the legal formalities, the car was outrightly confiscated to the State, which order attained finality.
2. Being a State property,, it was put to open auction in terms of section 182 of the Customs Act, 1969 which was purchased by petitioner No,2 by giving the highest bid of Rs,3,65,000. In addition to the price, CVT amounting to Rs, 18,250 was also deposited with the respondents whereafter a proper sale certificate was issued to him, copies of the same are available on record. After all these legal formalities were completed, the car was delivered to Petitioner No,2 on 7-5-2002 vide delivery certificate of the even, date issued by respondents No,5 (Inspector I/C. Custom State House D.I.
Khan).
3. Petitioner No,2 then sold the said car for Rs,4,50,000 to petitioner No,l which fact is not disputed whereafter it was registered by petitioner No, 1 in his own name with MBA, Peshawar on the basis of N.O.C. Dated 11-7-2002 of the registration book issued/delivered by the respondents to him which are available as Annex-E and F.
4. It was on 7-7-2004 that the Attock Police (Punjab), seized the said car from the possession of petitioner No,l as per computer record the same was stolen from Karachi and in that regard F.I.R.
No,216 dated 7-11-1990 was registered in Police Station Frier District South Karachi.
5. Confronted with such a calamity, the petitioners approached the respondents for the return of the amount including CVT against which the car was purchased from them by petitioner No, 2 which was adjudicated by the respondents to be a smuggled one but it proved the other way.
6. Acting on the application of the petitioners, the customs authorities made inquiry from the computer branch (Investigation Branch) - N.-W.F.P., Peshawar to get confirmation about the complaint and from the other end it was communicated by the D.S.P. Incharge of computer centre vide Letter No,794* dated 7-10-2004 that the car was stolen from Karachi in the year 1990 and proper F.I.R. Was registered to that effect.
7. The petitioners yet filed second application dated 31-5-2005 for the return of the amount by the respondents but neither they returned the amount nor contacted the concerned police for conclusive settlement of the matter thus faced with such a situation, petitioners filed the instant writ petition praying for issuance of writ to the respondents to act according to law and to return them the amount deposited with the respondents including price of the car and the amount of CVT.
8. Comments were called from respondents 1 and 2, who filed the same where they admitted almost all the facts but took the stance that the matter need thorough probe/inquiry as to whether the car seized by the Attock police and was found to be a stolen one was in fact the same one or it was some other car. They also denied the official communications made by them with the concerned police albeit the written communications made by them are available on record, which they could not deny at the time of hearing.
9. Learned counsel for the petitioners vehemently contended that respondents are functionaries of the State. The car was sold out in an open auction to petitioner No,2 after a public notice was issued in the newspaper and it was kept open for inspection of the intending bidders and that a solemn impression was given to the petitioner No,2 and all' those who participated in the bid that the car was a State property having been confiscated to it by the adjudicating officer being a smuggled one and while acting under a bona fide belief and in good faith petitioner No,2 purchased the same by giving highest bid and auction price along with the amount of CVT was deposited with the respondents whereafter it was delivered to petitioner No,2 along with all the requisite official documents and when the respondents had acted carelessly and without proper probe to ascertain that it was not smuggled one rather a stolen one then the entire ' responsibility lay with them and they are under constitutional and legal obligation to return the money received from the petitioners or to retrieve the car in the alternative from the concerned police and to be handed over to the petitioners if it is not a stolen one and that remedy by way of civil suit is fraught with many legal complications and time consuming factor, therefore, filing of this constitutional petition is not barred in the given circumstances.
10. To the contrary, learned counsel for the respondents reiterated the stance taken in the comments filed by the respondents and argued that the matter is involving factual controversy and is subject to further probe, therefore, writ petition is not maintainable and that the petitioners could avail the remedy by approaching the Collector Customs for cancellation of the auction.
11. We have gone through the available record and have fairly attended to the submissions made at the bar. The facts undeniable in nature are narrated above which are not in dispute. The only plea taken by the respondents is that it is not yet confirmed with certainty that the car seized from petitioner No,1 by the Attock police Was the same car or a different one and unless such inquiry is taken and concluded, this controversy cannot be resolved in writ jurisdiction of this Court.
12. We have before us the copy of the F.I.R. No .216 Police Station Ferier District South Karachi registered on 7-11-1990 wherein particulars given of the stolen car are one and the same, which has been put to auction by the respondents and was purchased by petitioner No,2.
13. In addition to the above, the same particulars have been communicated to the respondents by the computer centre (Investigation Branch) Central Police Officer, N.-W.F.P., Peshawar thus, we entertain no amount of doubt that the car which was put to auction by respondents and was purchased by petitioner No,2 is one and the same which is the case property of the criminal case referred to above being a stolen one and not a smuggled car.
14. As the respondents have received a handsome sale consideration from the petitioner No,2 for the car auctioned, therefore, when they were approached by the petitioners twice that the car was not a smuggled one but a stolen one and that the same has been taken into possession by the concerned police in the criminal case, therefore, it was their legal obligation to have pursued the matter with the concerned quarter for further satisfaction and verification of the matter. It is on record that the petitioners have applied twice to the respondents more than two years back and also before the filing of the present writ petition and while acting on their complaint, verification was made from the computer centre which replied that the car was not a smuggled one but a stolen one involved in the registered criminal case ibid. After receiving this reply, the respondents sat quiet and did not take a single step to take the matter to the logical conclusion by contacting the concerned police and making physical verification with regard to the model, engine and chassis number as to whether those were the same or were otherwise which is also not their case - as is evident from the written comments.
15. The plea that constitutional petition is not maintainable as the liability has arisen out of contractual obligation and the matter involves factual controversy is entirely fallacious and unfounded. In the case of Muhammad Ashraf Ali v. Muhammad Naeem and 2 others (1986 SCM R 1096) it was held by the apex Court that question of jurisdiction and competency of functionaries of Cooperative Fund being involved, jurisdiction of High Court to deal with such matters could not altogether be ruled out.
16. In the case of Gatron (Industries) Limited v. Government of Pakistan and others (1999 SCMR J072) while dealing with the proposition of filing writ petition without exhausting the available alternate remedies, it was ruled by the Honourable Supreme Court that the said rule is of convenience and discretion by which the Court regulates its own proceedings Said rule is not a rule of law affecting the jurisdiction Constitutional petition is competent if an order is passed by a Court or Authority by exceeding its jurisdiction even if the remedy of appeal/revision against such order is available, depending upon the facts and circumstances of each case.
' In a latest ruling given in the case of Mahmood Ali Butt v. Inspector-General of Police, Punjab, Lahore and 10 others (PLD 1997 SC 823) it was held by the august Supreme Court in the following terms:--- ' "Article 199---Constitutional jurisdiction of High Court--- Scope---High Court normally does not entertain a petition under Article 199 of. The Constitution to enforce the civil liability arising out of a breach of contract to pay the amount of money due to the claimant and leaves the same to the aggrieved party to agitate the question in a civil suit filed for that purpose-High Court, in its constitutional jurisdiction under Article 199 of the Constitution of Pakistan, however, can order payment of money against State or its functionaries to enforce a statutory obligation".
17. Admittedly, respondents are being functionaries of the State and that whether they have acted in bad faith or due to sheer negligence by treating the motor car in question a smuggled one and got adjudication in that regard in its favour from the special tribunal. No inquiry or proper verification by then was made from the computer centre charged with the duty of maintaining data of stolen cars about the particulars of the car .Seized, adjudicated upon as a smuggled one and then put to open auction through public notice hence, no body else but the respondents alone are responsible and liable for such act and omission while petitioner No,2 in the circumstances has acted in good faith and under a genuine impression that the car was a smuggled one duly adjudicated upon by the competent forum thus purchased the same in open auction deposited the price along with C V T amount with the respondents and after fulfilling all the codal formalities, proper transfer order, NOC and registration book was given to petitioner No,2/the purchaser who then sold it on profit to petitioner No,1 and the latter registered it in his name, therefore, in view of the established facts and in the circumstances of the case, petitioner No,2 cannot be blamed to have acted negligently, malafidely or without exercising due care and caution while purchasing the car in question.
18. As the respondents being the functionaries of the State, have deprived a citizen of this property (money) by selling out the car to him after giving absolute and firm impression that the same was pure State property free from all defects of title much less a stolen one and when they have received the money in this manner then under the constitutional mandate they are bound to return the money to him moreso, when they have failed to retrieve the car and hand over back it to the petitioner thus they have failed to discharge their legal obligations thus they in no manner are justified to withhold the amount paid to them by petitioner No,2. The remedy availed by the petitioners through this petition cannot be held to be improper in the circumstances and facts stated above because more than 3 years have passed after the respondents have received the money from petitioner No,2, therefore,' pushing back the petitioners to the civil Court or any other forum for the same relief would be against all the canons of justice.
' For what has been stated above, this petition is allowed and the respondents are directed to return the entire amount of money i.e, both price of the car and CVT amount received by them, to the petitioners positively within a period of two months failing which they will be further liable to pay interest on the withheld amount to the petitioners on the prevailing bank rates.