1. SAEEDUZZAMAN SIDDIQUI, J.--The petitioner has challenged the order of respondent dated 26-4- 1982. By the impugned order the respondent directed that vehicle belonging to petitioner will be released upon payment of fine of Rs. 5,000 as the same was allegedly involved in the removal of contraband goods. The facts of the case may be stated as follows:-- On the night between 27-12-1977 and 28-12-1977 the Customs Preventive Staff at the Airport stopped Station Wagon bearing No. KCM 2894 belonging to the petitioner which was proceeding towards freight Gate of the Airport. On search of the vehicle from among several mail bags, two mail bags were found containing suitcases wherefrom imitation jewellery valuing Rs. 86,500 was recovered and seized by the Customs Authorities. The said vehicle was driven by one of the employees of the petitioner named El Edroos and among other inmates of the vehicle was another office of the petitioner named Muhammad Saleem Abdullah Naskani. On investigation of the case by the Customs Authorities it was found that one passenger Ayaz son of A.I Muhammad, a Tanzanian national had arrived on the same day by a Swiss Air flight from Hong Kong who carried the seized imitation jewellery and handed over the same to said El Edroos and M.S. Naskani for their removal from the restricted area to a destination outside the airport. The Customs Authorities also fou0d that two other persons were also involved out side restricted area. Accordingly, on 28-12- -1977 an F.I.R. Was lodged in the case under section 2(8) of the Customs Act. The accused persons were finally challaned in the case on 10-1-1978 and upon their trial the Special Judge, Customs, Karachi, convicted only two accused out of four namely El Edroos and M.S. Naskani. It is an admitted position that do appeal to this Court against the judgment of the Special Judge, Customs, M.S. Naskani was acquitted on 9-1-1989, but conviction and sentence of other accused El Edroos was maintained. The Customs Authorities in the meantime, while the Proceedings for the trial of the accused persons in the case were going on before the Special Judge, Customs, issued show-cause notices dated 27-2-1978 to all the accused persons mentioned in the F.I.R. As well as to the petitioner. In reply to the show---cause notice the petitioner claimed before the respondents that they were not concerned with .The alleged acts of smuggling and the act done by accused persons, who were employees of the petitioner, were without their knowledge and connivance. The respondents, however, by its order dated 26-4-1982 though held that the petitioner could not be deemed to be party in the act of smu ggling yet imposed fine of Rs. 5,000 on them as condition for release of their vehicle. The above order is challenged by the petitioner in the above petition.
2. Mr. Rustom J. E. Kaikobad, learned counsel for the petitioner contended before us that on the face of the finding by the respondent that the petitioner was not involved in the act of smuggling, the imposition of fine was contrary to law. In this connection learned counsel has relied on the case of Abdul Razzak v. Pakistan (PLD 1974 SC 5). The following observation in the above case which appears at pages 10 and 11 of the report may be reproduced here on which reliance is placed by the learned counsel.
3. "It appears to us that there is great deal of force in the reasoning of the learned Judge in this case.
4. If the words "liable to confiscation" give a discretion to the confiscating authority to deprive a person of his property, then it follows that this discretion must be exercised upon the principles of natural justice; that is to .Say the persons sought to be deprived of the property must be given notice to show cause, they must be furnished with adequate opportunity of putting forward their point of view and the same must receive due consideration. Furthermore, according to one of the principles now well-accepted, no person should be deprived of his property by way of penalty unless it is clear that he is in some measure responsible for assisting of furthering the commission of the offence committed.
5. No innocent person should be unjustly punished or deprived of his property. This was the cardinal principle which was followed by the learned Judge of the Calcutta High Court in the last mentioned case. We too think that this was the correct principle upon which the authorities should proceed.
6. The question is whether that has been done in this case. The learned Attorney General maintains that this has been done, but we are unable to agree with him, for in the findings of the Government itself, involvement of the appellant in the act "was not proved by the Department." Indeed, there was no indication even that the owner of the vehicle was also involved. If that be so, then it is difficult to appreciate on what basis even a reasonable suspicion could arise as to the complicity of the appellant. The mere fact that the F.I.R. About the theft of the vehicle was lodged after the vehicle had been seized at another place by the Customs Authorities does not mean that the appellant must have had earlier knowledge of the illegal or improper use of the vehicle. The authorities should have made some attempt to show at least that the knowledge of the seizure had been conveyed to the appellant before he lodged the report at the police station.
7. Mr. Syed Inayat A.I, learned counsel for respondent is unable to support the order of the respondent in view of the observation of the Supreme Court reproduced above. We accordingly accept this petition and declare the order passed by the respondent as without lawful authority and of no legal effect. The fine, if recovered from the petitioner, should be returned to them. There will be no order as to costs.
8. S.A./S-496/K Writ issued.