' The facts leading to the institution of this writ petition in brief are that respondent No, 1 in exercise of his powers of Customs Officer raided the house of the petitioners and seized two V. C. Rs, two radio tapes, one remote controller and 36 cassettes of films of Indian and Pakistan origin.
According to the petitioners, these articles had been brought from Kuwait by the son of the petitioner No, 2 who is employed there. Respondent No, 1 got a case registered at Police Station, Nawankot, Lahore under section 156 (89) of the Customs Act, 1969. Through this constitutional petition it is prayed that a direction be issued to the respondents to return the seized articles to the petitioners.
2. The learned counsel for the petitioners argued that after the seizure of the goods, under the Customs Act, respondent No, 1 was duty bound to deliver the seized articles to the Customs Officer authorised to receive the same but he failed to do so. He further submitted that as required by subsection 168 (2) no notice under section 180 of the Customs Act, within two months of the seizure, was served on the petitioners, therefore,' they are entitled to the return of the articles. In support of the submission he cited some precedents.
3. The learned Assistant Advocate-General did not dispute the correctness of these arguments. He, however, submitted that as some of the goods were imported into Pakistan unauthorisedly and some without payment of duty, the petitioners cannot be permitted to take advantage of their own illegality. He further argued that as Sharafat Ali or for that matter the petitioners were guilty of committing an illegal act, no relief in exercise of writs jurisdiction can be given to them. He relied on Gut Muhammad's case (1). It was further submitted that out of the seized goods which were placed in the custody of the Customs Department under the orders of this Court, those articles the import whereof was not banned would be released to the petitioners after collecting the import duty.
4. After hearing the parties and going through the precedents cited on behalf of the respondents and also some other case law on the subject, I find merit in the contention of the learned Assistant Advocate-General. In PLD 1982 Pesh. 30, a Division Bench of the Peshawar High Court despite holding that notice under section 168 read with section 180 was not served on the petitioners before the Court, refused to issue writ and maintained : "jurisdiction of this Court under Article 199 of the Constitution is discretionary and no writ can be issued in favour of a person in possession of ill-gotten gain. If we issue any direction then it would amount to giving the petitioner the custody of the car without discharging the liabilities to make the payment of dues which he is legally, as well as, morally bound to pay."
In Wali Muhammad and others v. Sakhi Muhammad and others (2) it was laid down : "It is well- settled principle that the High Court's writ jurisdiction can be involved in aid of justice and not to help retention of ill-gotton gain." I have also gone through the precedents cited by the
(1) PLD 1982 Pesh. 30 (2) PLD 1974 SC 106 ' learned counsel for the petitioners. The points urged by him find support therefrom but the question of refusing relief on account of improper conduct and illegality committed by petitioners therein, was not urged and discussed in those cases. There is no material on the record to show that the import of the goods was made in accordance with law. It is obvious that the petitioners are seeking the release of the goods on the strength of technical pleas. The writ jurisdiction is essentially discretionary. In the circumstances of the case, I do not feel persuaded to allow relief as prayed for by the petitioners. As stated by the learned Assistant Advocate-General, the petitioners can be given only those articles the import of which, under the Import Laws, is not completely prohibited and for taking the delivery of such goods they shall have to pay the import duty, if any. I order accordingly.
' With these directions, the writ petition disposed of. The parties are left to bear their own costs.