1. We have heard the learned counsel for the petitioner and Deputy Attorney-General.
2. According to the Deputy Attorney-General this petition is not maintainable as the prayers in the petition could not be granted to the petitioner inter alia on the ground that the petitioner has no locus standi to file the present proceedings, which according to him are the offshoot of Crime No. 76 of 2008 of PS FIA (Crime Circle) Karachi. His next contention was that the petitioner has prayed in the petition for release of the vehicles. According to him such application should have been made before the concerned Court. He contended that this Court out of love and affection cannot grant relief to the petitioner. He further contended that the Court should not get emotional while hearing.
3. The matter. After arguing this, he tendered unconditional apology for the words, which were used by the learned Deputy Attorney-General in Court during his arguments.
4. As against this, learned counsel for the petitioner has contended that the properties seized by the Investigating Officers, were neither owned nor belonged to any of the accused either in custody or absconding. His next contention was that the acts of Investigating Officers of the FIA seizing the vehicles of the petitioner's relations were violative of the provisions of section 5 of the FIA Act read with the provisions of Criminal Procedure Code. He further contended that even in the challan, the FIA official has conceded that they have seized the vehicles to compel the absconding accused for appearance in Court.
5. We have heard the learned counsel, the learned DAG and have perused the record. The petitioner has prayed for the following relief:--
(a) To declare that the house trespassing by the respondents Nos. 1 to 4, on 3-3-2009, 5-3-2009 and 10-3-2009 are illegal, unlawful, without jurisdiction, and without lawful authority.
(b) To declare the occupation/seizure of the seven vehicles on the part respondents Nos. 1 to 4 are not the case property of case F.I.R. 76 of 2008 at FIA Karachi, and seizure of vehicles are illegal and without jurisdiction and criminal offence punishable under the law (sic.).
(c) To direct the respondents Nos. 1 to 4 to immediately produce the vehicle in the Court and further to order to release in favour of the registered owners of the vehicles.
(d) To order to prohibit/restrain the respondents Nos. 1 to 4 not to trespass the houses of the petitioner/the above these accused in custody and or not to deprive of any of their property with the prior order from the trial court in pending cases.
(e) Order to pay appropriate compensation of damages/loss of property of the petitioner to grant any other relief if this Hon'ble Court may deem it fit and proper under the circumstances.
(f) Cost of the petition.
6. We have examined provisions of FIA Act and the provisions of Cr.P.C. The powers of police have also been delegated to the FIA officials, who exercise it during enquiry and investigation. For the convenience, section 5 of the FIA Act is reproduced hereunder:-- "5. Powers of the members of the Agency. (1) Subject to any order which the Federal Government may make in this behalf, the members of the Agency shall, for the purpose of an inquiry or investigation under this Act, have throughout Pakistan such powers, including powers relating to search, arrest of persons and seizure of property, and such duties, privileges and liabilities as the officers of a Provincial Police have in relation to the investigation of offences under the Code or any other law for the time' being in force."
7. Section 5(1) of the FIA Act authorizes the members of agency (FIA) to search, arrest or seizure of property which powers are identical to the powers of Investigating Officer under the Cr.P.C.
8. Subsection (5) of section 5 of the Act provides that during investigation, the 1.0. Of the FIA can seize a property if he is of the opinion that such property is likely to be removed or transferred or otherwise disposed of, before an order of appropriate authority for its seizure is obtained. The power under subsection (2) and under subsection (5) of section 5 of the FIA Act are independent, which do not empower to the Investigating Officers of the FIA to seize the properties of the relations of the accused persons in order to compel the attendance of absconding accused persons in Courts.
9. We have perused the challan, submitted by the Deputy Director FIA (Crime Circle), Karachi on 6-3- 2009. At page-12 of the said challan, in the last paragraph it has been mentioned that:-- "during the course of further investigation. In order to compel the absconding accused persons, who have gone underground, the following four vehicles have been secured and seized vide Seizure memo dated 28-2-2009 in presence of the witnesses namely Haji Iqbal Gogu son of Wali Muhammad and Mr. Ghulam Nabi Qureshi son of Ibrahim Qureshi."
10. This authority to seize the vehicles of the accused inter alia on the ground to secure their attendance in Court is outside the scope of FIA Act. The vehicles admittedly are neither owned nor belong to the absconding accused. The ground, on the basis of which these vehicles have been seized, is neither available under the Cr.P.C. Nor under the FIA Act. No plausible explanation has been offered either the Investigating Officer or by the DAG to show that the action of seizure of vehicles not owned by the accused either in custody or absconding accused could be seized by the FIA authorities in exercise of their powers under the aforesaid laws. The vehicles are not case properties in the Crime No.76 of 2008 of PS FIA (Crime Circle), Karachi.
11. The petitioner happens to be the close relation of the owners, whose vehicles have been seized.
12. This is basically a petition wherein the action of seizure by the Investigating authority has been called in question. The question of locus standi in the given circumstances is not relevant as the petitioner in the first place is not stranger and is closely related to the persons whose vehicles have been seized. This Court in exercise of constitutional jurisdiction would not dismiss a petition, inter alia, on the ground that actual owners whose vehicles were seized have not approached the Court.
13. The DAG has failed to persuade us that the Investigating Officers of the FIA were competent to seize the vehicles. The Investigating Officers have exceeded their authority in seizing the vehicles, which act is declared to be without lawful authority.
14. We, for the aforesaid reasons, allow this petition, restraining the FIA from harassing the relations of the absconding accused or accused in custody. The parties, who claim ownership of the vehicles, sized by the Investigating Officers, possession of which has been handed over to the Nazir of this court in terms of the order of this court passed on 3-5-2010, shall be restored to them by the Nazir on verification of title documents and personal identification. The parties whose vehicles have been unauthorizedly seized by the FIA officials are at liberty to initiate proceedings against the action of the FIA authorities, if they so desire.
15. Before parting with this order we must record our displeasure over the conduct of the learned DAG, who during his arguments had used the language, which was strange and does not suit to a Law Officer. We expect that in future the learned DAG would be careful in choosing the proper words while conducting the cases.
16. This petition stands allowed in above terms.