IHSAN-UL-HAQ CHAUDHRY, J. - The petitioner through this Constitutional petition has prayed that the raid, search, seizure and all subsequent proceedings carried out by respondent No. 1 in violation of Sections 162 and 163 of the Customs Act, 1969 (hereinafter to be referred as "Act, 1969") without obtaining search warrant or preparing statement of grounds of belief are void, illegal and without lawful authority. The petition came up for limine hearing on 9.12.1999 when it was admitted to regular hearing and notices were issued to the respondents. Kh. Saeed-uz-Zafar, learned Deputy Attorney General has entered appearance on behalf of respondents Nos. 1, 2 and 4 while Mr. A.
Karim Malik, Advocate appeared on behalf of respondent No. 3.
2. Mr. S.M. Zafar, learned counsel for petitioner argued that the raid and seizure could either be effected by securing warrants or preparing the statement of ground of belief in view of the provision of Section 163 of the Act, 1969 and not otherwise, It is argued that this is jurisdictional defect, therefore, all the actions are illegal and void. Learned counsel in this behalf has placed reliance on S.M. Yousuf Vs. Collector of Customs (PLD 1968 Kar. 599), S.M. Yousuf Vs. The Collector of Customs, Karachi (1972 SCMR 87), Shaukat Hussain Vs. Zulfiqar Ahmad (PLD 1981 Lah. 13), Iqbal Akhtar Vs. Ch. Muhammad Mushtaq (PLD 1977 Lah. 1318), Muhammad Mahfooz Vs. Collectors of Customs (Preventive), Customs House, Karachi (PLD 1986 Kar. 28) and Collector of Customs (Preventive) Vs. Muhammad Mahfooz (PLD 1991 SC 630). It is added that the above- noted judgments have been considered by this Court in the case of Majid Bukhari Vs. The State (Crl. A. No. 100 of 1999) but the judgment is not relevant because in that case violation of provisions of Section 159 of the Act, 1969 which is a procedural Section, was in issue.
3. On the other hand, learned Deputy Attorney General argued that the raid was conducted by the F.LA. Therefore, Sections 162 and 163 of the Act, 1969 are no. Relevant. The F.I.A, has vast and wide powers under S. 5 of the F.I.A. Act, 1974 (hereinafter to be referred as "Act, 1974"). It is added that for this reason the cases relied upon by the learned counsel for the petitioner are not relevant, It is argued that the petitioner cannot be absorbed from the payment of customs duty, In this behalf, reference is made to the case of Gull Muhammad Vs. The Assistant Collector, Central Excise and Land Customs (PLD 1982 Pesh. 30). It is added that the petitioner is guilty of indulging in smuggling and anti-social activities, therefore, not entitled to any relief in Constitutional jurisdiction, In this behalf, reliance is placed on Brig. (Retd.) Imtiaz Ahmad Vs. Government of Pakistan (1994 SCMR 2142).
4. Mr. A. Karim Malik, learned counsel for respondent No. 3 argued that respondent No. 3 is proceeding with the matter strictly in accordance with law and petitioner would be liable to pay duties if required by law.
5. Learned counsel for the petitioner concluded the arguments with the submission that he is pressing the petition only to the extent of. Relief prayed for against respondents Nos. 1 and 2.
6. I have given my anxious consideration to the arguments, gone through the record, relevant provisions of law and the precedent cases relied by the learned counsel for the parties. The admitted position is that respondents Nos. 1 and 2 raided the godown of the petitioner, searched and seized the articles lying therein without warrants and without recording report, It is maintained on their behalf that the action is legal and in accordance with the provisions of Section 5 of the Act, 1974, which 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 person and se:izure 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.
(underlined by me)
7. It is clear from sub-section (1) supra that the FIA for purpose of inquiry and investigation under this Act, 1974 has same powers regarding search, arrest of a person and seizure of property as officer of Provincial police have in relation to the investigation of offences under the Code or any other law of the time being in force. The only difference is this power is available to the Agency throughout the Pakistan. The Agency wrongly, illegally and without legal basis has become a 'super police' and in the past responsible for serious violation of the rights of citizen including fundamental rights, It is made clear that the Agency does not possess any extra-ordinary powers.
The patience of the people have been exhausted and now any official can over-stepping its jurisdiction and the authority have to suffer serious consequence in the form of disciplinary proceedings, criminal action and suit for damages.
8. The learned Deputy Attorney General then referred to sub-section (3) of Section 5 of the Act, 1974 which reads as under:-
(3) Without prejudice to the generality of the provisions of sub-section (1) and sub-section (2), any member of the Agency not below the rank of a Sub-Inspector authorised by the Director-General in this behalf may arrest without warrant any person who has committed, or against whom a reasonable suspicion exists that he has committed, any of the offences referred to in sub-section
(1) of Section 3.
This only pertain to arrest of a person who has committed, or against whom a reasonable suspicion exists that he has committed, any of the offences referred to in sub-section (1) of Section 3 of the Act, 1974, therefore, reference to this sub-section is not relevant.
9. Learned Deputy Attorney General then referred to sub-section (5) of Section 5 of the Act, 1974 to canvass the theory of extra-ordinary powers. The same reads as under:-
(5) If, in the opinion of a member of the Agency conducting an investigation, any property which is the subject-matter of the investigation is likely to be removed, transferred or otherwise disposed of before an order of the appropriate authority for its seizure is obtained, such member may, by order in writing, direct the owner or any person who is, for the time being in possession thereof not to remove transfer or otherwise dispose of such property in any manner except with the previous permission of that member and such order shall be subject to any order made by the Court having jurisdiction in the matter.
(underlining by me)
10. It is Clear from the plain reading that for any action under sub-section (5) of S. 5 of the Act, 1974 the Agency must be conducting the investigation and not otherwise. The Agency admittedly was not investigation so far this writ petition is concerned, therefore, reference to this sub-section is also not relevant.
11. This brings the discussion to the point where the actions of the Agency were legal or not? The Agency has no powers to search and seize the articles in customs cases without complying with the provisions of Section 162 and 163 of the Act, 1969. It is clear from sub-section (1) of Section 5 of the Act, 1974 that the Agency has same powers to search, arrest of person and seizure of the 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, It is not the case of the respondents that the Act, 1969 is not the law in force for the time being, therefore, in customs matters the provisions of Act, 1969 have to be complied with, In nutshell the Agency has powers as available under the Criminal Procedure Code or relevant law.
12. Mr. S.M. Zafar, Advocate for the petitioner has rightly referred to the judgment in the case of S.M.
Yousuf (supra). The relevant portion of the judgment reads as under:- "15....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 ground 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."
(Emphasis supplied)
In the precedent case it was further observed as under:- "18........ The real safeguard to the individual citizen lies in the fundamental requirements that a statement in writing must be prepared by the Customs Officers before he marks 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 guarantees 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."
(Underlined by me)
13. The FIA has wrongly and illegally become a super police as unfortunately it was readily available for mis-use by the executive, It is not possible to permit any Agency to assume the role of Gestapo, It cannot be allowed to become a symbol of terror in the County and to tremble rights of the citizen guaranteed by the Constitution of Islamic Republic of Pakistan.
14. The upshot of this discussion is that this writ petition is accepted to the extent of actions of respondents Nos. 1 and 2 with costs. The result is that the raid, search, seizure and all actions thereafter taken by the FIA are declared illegal, without jurisdiction and of no legal effect.