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Petitioner: ABID HUSSAIN VS Respondent: GOVERNMENT OF SIND THROUGH CHIEF SECETARY, S&GAD JUDGMENT
Court Name: Sindh High Court Judge(s): Abdul Hayee Qureshi, Z.C. Valiani Title:ABID HUSSAIN vs GOVERNMENT OF SIND THROUGH CHIEF SECETARY, S&GAD
JUDGMENT
Reported As: PLD 1984 Karachi 269 Result: Order accordingly. Judgment JUDGMENT ' ABDUL HAYEB KURESH), ACTG. C. J.-The petitioner, Abid Hussain, claims to be a respectable businessm an, dealing in Real Estate and owning a packing factory and worship, besides being the Chairman of a fextile Mill and a Construction Company. The petition recites that, in 1975-76, the petitioner was harassed and falsely implicated in various cases on account of being in bad books of the past regime. The petitioner, therefore, thought of going abroad to save himself from the harassm ent. In regard to such harassment, it is stated that the Federal Investigation Agency raided and-occupied the house of the petitioner, the friends and relatives of the petitioner, including his married daughter and two real brothers were also detained under the Defence of Pakistan Rules. It is alleged that even their property was seized. It is then the case of the petitioner that before leaving Pakistan he had placed a sum of Rs, 51,72,000 in trust with Naseem Hasan Shah, respondent No, 2, who was a close friend of the petitioner. The said Naseem Hassan Shah was residing in House No, 228/A, Block 'D', North Nazimabad, Karachi. It is then alleged that, on the night intervening 21st and 22nd September, 1976, some officers of the Federal Investigation Agency at Karachi, raided the house of respondent Naseem Hassan Shah with a view to arrest the petitioner. The petitioner was not there, but the house of Naseem Hassan Shah was. Searched in presence of Mashirs Muhammad Anwar and Riaz Mohiuddin. It is stated by the petitioner that the amount of Rs, 51,72,000 entrusted by him to respondent Naseem Hassan Shah was seized by the Raiding Party from the said house. Naseem Hassan Shah and one Muhammad Akbar, who were present in the house at the time of search, were arrested and detained under the Defence of Pakistan Rules. A Mashirnama was prepared by the Federal Investigation Agency's staff, and a copy of the same has
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been placed on record as Annexure 'A-1'. It is stated in the Mashirnama that the amount of Rs, 51,72,0 ,0 was, in fact, seized by Abdul Hague, Deputy Director, Federal Investigation Agency, but it is further stated that the said amount was found to be wrapped in four white cloth bags, and had been thrown from a car in front of House No, 228/A, Block 'D', North Nazimabad, Karachi. This house, it may be recalled, is the house, where Naseem Hassan Shah resides. This Mashirnama has been signed by Muhammad Anwar and Mohiuddin. The petitioner alleges that, at the time of recovery and seizure of this amount, respondent Naseem Hassan Shah and Muhammad Akbar immediately informed the Raiding Party that the amount belonged to the petitioner, who had deposited the same with respondent Naseem Hassan Shah as a trust. The petitioner has submitted copies of the affidavits of respondent Naseem Hassan Shah, Muhammad Akbar, who was in the house of Naseem Hassan Shah at the time of seizure, and Mashirs Muhammad Anwar and Riaz Mohiuddin. These documents have been marked as Annexures `A-2' to `A-5' on the record, and each one of these documents states that the sum of Rs, 51,72,000 was, in fact, seized from the house of Naseem Hassan Shah. It is also stated in these affidavits that, on the same night in the same search, Police had also recovered 40 Dollars, 20 Sterling pounds and 10 Dutch Guilders, and the foreign exchange was claimed by Naseem Hassan Shah. ' The amount of Rs, 51,72,000 was retained by the Federal Investigation Agency for a period of three and half months, and ultimately, on 6-1-1977, an application was made in the Court of the Additional City Magistrate No, 5, Karachi. The said application reads as follows :- "It is submitted that on the night between 21st and 22nd September, 1976 on credible information that one Nasim Shah resident of North Nazimabad provides facilities to Abid Hussain in his nefarious activities and harbors him, a said was organized to haul up Abid. During this operation, when the police party reached near House No, 228-A/L) North Nazimabad, Karachi, party viewed a car from which some bags were being unloaded under the cover of darkness. When police party rushed towards the car, the persons busy in unloading the bags started the car and made good their escape. The bags left over lying in the darkness, were checked and were found to contain Pakistani Currency Notes as under :- Rs, 51,72,000. ' These notes alongwith bags were taken possession of as an unclaimed property. ' Investigation, enquiries and efforts were made, but the amount in question remained unclaimed. ' Since the unclaimed property are Pakistan Currency and as such right of possession of this property can only be of Pakistan Government. ' It is, therefore, prayed that the Pakistan Currency as mentioned above may kindly be ordered to be confiscated in favour of Government of Pakistan and to deposit the same in the State Bank of Pakistan." ' The Magistrate, on the same day, ordered the issue of a proclamation under section 523(a), Cr, P. C. Acid directed the Assistant Director of Federal Investigation Agency to retain the amount in safe custody. A proclamation was issued on 11-1-1977 by the said Magistrate, calling the person having a claim to this amount to appear before the Magistrate and establish his claim. This proclamation is Annexure 'BY, and the same shows that the amount was seized near House No, 228-A, Block 'D', North Nazimabad, Karachi. The proclamation further shows that the notice was ordered to be pasted on public places by the Assistant Director of the Federal Investigation Agency and by the Station House Officer of North Nazimabad Police Station. It is not stated that notice was ordered to be pasted at a conspicuous place near the place, where the amount in question was seized. No claimant appeared, and therefore the Magistrate, by an order, dated 16-7-1977, forfeited the amount and kept the same at the disposal of the Central Government. The petitioner returned from abroad on 29-9-1977. And thereafter surrendered himself before the Martial Law Authority, and defended himself in some cases that had been instituted against him in Karachi and Lahore, and
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he states that he had been acquitted in all the cases, which had been instituted against him by the previous Government which, as alleged, was hostile to the petitioner. The petitioner thereafter filed an appeal before the 3rd Additional Sessions Judge, Karachi, against the order of forfeiture. This appeal was dismissed on 20-5-1978 on two-fold grounds that the appeal was barred by time, and that the petitioner not having lodged his claim, had no locus standi in the matter. It seems argument was raised before the learned Additional Sessions Judge that the order of forfeiture was illegal, and the placing of the money at the disposal of the Central Government was also illegal. The learned Additional Sessions Judge stated that the order was not illegal, or, ultra vires, but at most irregular, so that the irregularity could be cured under section 537, Cr. P. C. Consequently, the order of the learned Magistrate was modified in the manner that the work 'forfeiture" in the initial order of the Magistrate was deleted and substituted by the word "the amount of Rs, 51,72,000 is placed at the disposal of the Provincial Government." Aggrieved by the order of the Additional Sessions Judge, the petitioner filed a Criminal Revision Application in this Court, which was registered as Criminal Miscellaneous Application No, 601/1978. This application was fixed before Mr. Justice Muhammad Zahoor-ul-Haq, who dismissed the same on 25-3-1980. The learned Single Judge held the order of the Additional Sessions Judge to be proper, but, in the penultimate paragraph of the order, it was stated as follows :- "This order has not prejudiced the applicant in any manner. His appeal has been merely dismissed on the technical ground of limitation and he is not, therefore, under any apparent disability from moving the Provincial Government to provide him the necessary relief if he can convince them of his genuineness and bona fides and provide the necessary proof of his ownership." ' The petitioner thereafter made some applications to the Government of 'Sind in the Service and General Administration Department, requesting for release of the said amount. By a letter, dated 22-7-1980, the Government stated that, in case the petitioner wanted to convince the Government about bona fides of his claims, he should establish his title before a Civil Court, and produce the decree of his ownership before the Government for release of the money. Subsequently, by two successive letters, dated 4-12-1980 and 9-3-1981, the same stand of the Sind Government was reiterated, placed in these circumstances, the petitioner filed a suit against the Government of Sind and Naseem Hassan Shah as the pro forma defendant on the Original Side of this Court for recovery of the said amount. This suit has been registered as Suit No, 302/1981. We had examined the record of this suit at the time of hearing, and the position is that, till date, even the issues have not been framed. The fact of the filing of the suit has been mentioned in this petition, and it is stated that the remedy by way of a suit is neither speedy nor efficacious, and, on the other hand, the delay leads to huge losses arising out of the blocking of the capital of the petitioner. ' Before adverting to the respective contentions of the two parties, it would be proper to refer to some other documents, which are available on the record in this petition, or, on the record in the earlier case being the Criminal Revision Application, which was disposed of by Mr. Justice Muhammad Zahoor-ul-Haq. In fact, by consent, reference has been made to several documents, which are available on the record of the case. The first document is a reference made by Mr. Abdur Rashid Khan, Director of the Federal Investigation Agency on 8-10-1976. The reference was exhibited on the record of Suit No, 278/1978 in the Court of the 5th Additional District Judge, Karachi. A certified copy had been obtained, and a photostat thereof has been placed on record of this petition as Annexure 'C'. The very first paragraph of this reference reads as follows :- . "F. I. A. Karachi was moved into the major operation for the arrest of Seth Abid for the first time on 15th September, 1976. For this purpose, a group of most reliable and intelligent officers was formed for conducting this most sensitive operation. The initial raid conducted in this connection resulted in arrest of a very important associate of Abid namely Nasim Hussain Shah from North Nazimabad. The raiding party also recovered Rs, 51,72,000 during this operation."
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' It is significant that, for arresting he petitioner, efforts were made by the Federal Investigation Agency, and, in a raid, respondent Naseem Hassan Shah, who is stated to be an important associate of the petitioner, was arrested from North Nazimabad, and, during this operation, the sum of Rs, 51,72,000 was also recovered. The other document, to which reference needs to be made, is marked as Annexure 'D' in Criminal Miscellaneous Application No, 601/078, which is a letter by Mr. Abdur Rashid Khan, Director of Federal Investigation Agency, td the petitioner. This letter, which was written on 2-3-1978, is in reply to a letter written by the petitioner 27-12-1977, claiming the return of the amount in question. It is stated that the amount has been treated as unclaimed and deposited in the State Bank. It may be mentioned that this reply was made to a letter written by the petitioner on 27-12-1977. The next document is a Report lodged by Mr. Abdul Hague, Deputy Director, Federal Investigation Agency on 22-9.1976, stating that, on the night intervening 21st and 22nd September, 1976, searches and raids were conducted, and respondent Naseem Hassan Shah was arrested from House No, 128-A, Block 'D', North Nazimabad, and some foreign exchange was seized. In respect of this seizure, Naseem Hassan Shah was tried by the 8th Additional Sessions Judge, Karachi, and was convinced on his plea of guilty on 20-12-1976. The other documents, to which reference may be made, are the orders of detention of respondent Naseem Hassan shah under the Defence of Pakistan Rules on 22-9-1976. There are documents to show that even the daughter of the petitioner was ordered to be detained in her house . On 8-11-1976. 2. The respondent, Naseem Hassan Shah, has not contested this petition. On the other band, he had filed an affidavit in the Revision Application, a photostat copy of which has been placed on record as Annexure 'A/2'. In this affidavit, he has stated that, on the night between 21st and 22nd September, 1976, a raid was made by the Federal Investigation Agency to secure petitioner Abid Hussain from his (respondent No, 2's) house. He has stated that the amount in question was entrusted to him by the petitioner, Abid Hussain, and the said amount was seized by the Police. 3. On behalf of respondent No, 1, Mr. Aftab Abmad Siddiqi, a Section Officer, has filed a counter- affidavit, wherein it .Has been averred that the currency notes of about Rs, 52,00,000 were abandoned on the road by some unidentified persons, who frightfully ran away in a car, leaving the money on the road. It is stated that the affidavit of respondent Naseem Hassan Shah is designed to oblige the petitioner. It was further stated that the petitioner did not take expeditious steps for return of the amount in dispute. It is further averred that the petition was not maintainable on account of the filing of a suit by the petitioner. 4. Mr. A. Sattar G. Shaikh, the learned Additional Advocate-General, was pointedly asked by us if any person other than the petitioner claims this amount, and he has stated that none other than the petitioner is claiming this amount, He has, however, stated that the amount having been placed at the disposal of the Sind Government now belonged to the Sind Government. The learned Additional Advocate-General has averred that, for the reason of availability of an alternate remedy, this petition is not maintainable. He has further averred before us that the matter involved disputed question of fact, which cannot be resolved in the restricted scope of a Constitutional petition. This case was heard by a Bench of which one of us was a member. However, before the judgment could be announced, it was brought to our notice that Federal Investigation Agency (hereinafter referred to as F. I. A.) had not deposited the amount with the Sind Government ,,s directed by the Additional Session" Judge, which order had also been confirmed by Mr. Justice Zahoor-ul-Haq. It was stated that for such reason it was necessary to join F. 1. A. And the Federal Ministry of Interior. The amended petition was then filed on 30-6-1983. Mr. Aziz Munshi appeared on behalf of the newly joined respondent. This order was passed on 19-4-1983. Counter-affidavit was filed on behalf of the freshly joined respondent by Muhammad Sadiq, an Assistant Director, Crimes Circle II, Karachi, on 18-10-1983. The facts, as are stated above, were reiterated. It was stated that the petitioner had no locus stand', as the amount had not been seized
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from him. I he ownership of the petitioner was denied although it was not stated as to who was the owner. It was stated that the claim of the petitioner having been made for the first time on I 1-3- 1983 was belated. It was stated that the petitioner baying filed a civil suit could not invoke constitutional jurisdiction. It was averred that until the petitioner proved his rights of ownership the newly-joined respondents were entitled to remain in lawful possession of the amount. It was stated that the petitioner was also guilty of aches. It was stated that the petitioner was not a respectable businessm an, because the record of the Government of Pakistan shows that he had been involved in various criminal cases and unlawful activities, as he alongwith his associates operates business directly, or, indirectly in London, Dubai, India and other places without disclosing his sources of foreign exchange and income. It was denied that the petitioner had been harassed by the previous Government. It was admitted that the house of the petitioner had been acquired by respondent No, 4 for official use, and it was also admitted that the daughter of the petitioner, his two real brothers and his Manager had been detained under the Defence of Pakistan Rules, but such detention was lawful. It was not denied that the house and property of the petitioner had been seized. It was admitted that the house of Naseem. Hassan Shah had been raided and some foreign exchange was secured. It was also admitted that Naseem Hassan Shah alongwith Muhammad Akbar was detained under the Defence of Pakistan Ordinance. It was stated that Naseem Hassan Shah pleaded guilty on the charge of having foreign exchange in his possession, but it was averred that during that trial Naseem Hassan Sbah made no submissions regarding the amount which is involved in this case. It may, however, be stated that Naseem .Hassan Shah was not put on trial in connection with this amount. The affidavits of Naseem Hassan Shah, Muhammad Akbar, Muhammad Anwar and Riaz Mohiuddin were stated to be false. It was stated that the proceedings before the Magistrate were legal. Such lengthy affidavit of Muhammad Sadiq, which runs in 17 pages, however, does not state that Muhammad Sadiq was a member of the raiding party. However, to confirm such fact, we asked Mr. Aziz Munshi and Muhammad Sadiq himself (who has been present in Court all along), and it was confirmed that he was not a member of the raiding party. Along with the affidavit of Muhammad Sadiq photostat copies of two affidavits of Muhammad Anwar and Riaz Mohiuddin (the Mashirs of seizure) were also filed. These affidavits came from the custody of the F..1. A. And are couched in the same words. It will be profitable to re- produce the same. Those read as under :- "I solemnly affirm before this Hon'ble Court that between the night of 21/22 September, 1976, the F. I. A. Karachi seized Pakistani currency notes' bundles, from the road opposite House No, 2%.8-A/D, North Nazimabad, found as unclaimed. The F. I. A. Police counted the currency notes which were 51,72,000 and prepared Mashirnama which bears my signature. ' I see the Mashirnaaaa, it is the same and bears my signature. I am making this affidavit with the intention that the same may be used as and when required." The stamp paper is dated 31-1-1979, and it is signed by a First Class Magistrate at Karachi on the same date. No one seems to have identified A the two deponents, but that is not material, because the two deponents admit their signatures. ' Since these two affidavits ran contrary to the affidavits of the same witnesses, by consent of counsel, we called the two deponents, and examined them in Court. They were identified by Muhammad Sadiq. In their evidence, they have stated that the money was not found on the road, but in a bungalow. In regard to the affidavit, Muhammad Anwar stated that he had been taken to the Magistrate by some Police Officer, but the contents of the affidavit had not been read over to him. He went on to state that Magistrate did not know him; nor had he asked the Police Officer as to who identified the deponents. He went on to state that the Police Officer that had taken him to .Magistrate did. Not know him before. In regard to the affidavit sworn by Muhammad Anwar in the High Court, he has stated, that he had been brought by some policeman, but there was an
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Advocate, who was present at that time. He stated that the affidavit obtained by F. I. A. Had not been read over to him, but the affidavit sworn by him in the High Court had been read over to him He has also stated that when the money was recovered, it was stated by one Muhammad Akbar that it belonged to Abid Seth. Riaz Mohiuddin in his evidence has stated that the affidavit produced by F. 1. A. Was got signed from him outside the Court, and not in presence of Magistrate. However, he also stated that money had been recovered from the house of Naseem Hassan Shah, and not from the road. ' When this matter came up before us on 14-3-1984, Mr. Aziz Munshi invited our attention to still another counter-affidavit that had been presented in the office of this Court on 11-3-1984. We may state that arguments had already been heard and one of the points, that have been raised by Mr. Sharaf Faridi, was that none from the raiding party had filed any counter-affidavit to rebut the assertiop of the petitioner, and witnesses that the amount had not been recovered from the road. Thereafter, Syed Habib Ali, an Inspector of F. I. A. Made an affidavit, which was brought to our notice. He has stated that, when F. 1. A. Party reached near the house of Naseem Hassan Shah, they saw some car from which some bags were unloaded under the cover of darkness. It was stated that, when the police party rushed towards the car, the persons busy in unloading the bags made good their escape. He stated that Naseem Hassan Shah and Muhammad Akbar did not disclose that the money belonged to the petitioner. At the request of Mr. Sharaf Faridi, Syed Habib Ali was allowed to be cross-examined. He has stated that the F. 1. A. Patty started from office at mid-night intervening 21/22 September, 1976, and it took them 45 minutes to reach North NazimabaL, and the two Mashirs were picked up somewhere on the way. He went on to state that, when the F. I. A. Party was at the distance of 20/25 yards from the house of Naseem Hassan Shah, they found some bags, which were unloaded from a car, and such bags were thrown at the distance of 4 or 5 paces from the door of house of Naseem Hassan Shah. It would thus seem that the alleged car, from which bundles were taken out, was at distance of 30 yards, when the F. I. A. Party spotted it. He went.On to state that the F. 1. A. Party tried to chase the car, but could not succeed. However, he could not give the give number of that car; nor its colour ; nor could he mention how many people might be in the car. He went on to state that it must have taken about half a minute for throwing the bundles from the car, and before the said car had come to a dead stop, it bad gradually slowed. It seems that underlying purpose of such cross-examination was to show that the story about throwing the bundles and such throwing being witnessed by F. I. A. Party was not reliable, because the time that must have been consumed for the purpose of throwing the bundles would have been sufficient for the F. I. A. Also to reach that place. This witness also could not give the dimensions of four bags, in which money was contained. He also went on to state that for the purpose of throwing each one of these four bags only one door had been opened. He admitted that no Masbirnama of seizure was prepared at the spot. He stated that the money was counted in the F. I. A. Office, but admitted that the Masbirnama of seizure does not show the place of counting of the money. Original Mashirnama has been placed on the record. 5. The first point, on which contest has centered, is that the case involves disputed questions of fact, and therefore, relief cannot be given in these proceedings. We must initially state that, in every case, which come before this Court by way of a Constitutional Petition, a sort of factual dispute is always involved. It must also be stated straightway that, if a matte involves substantial questions of fact, which cannot be resolved, except by way of a factual enquiry, or, proceedings, a writ would normally not issue. On the other hand, it can be said without hesitation that the High Court in exercise of constitutional powers can look into all the matters appearing from the record, and then
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arrive at its own findings. The rule then is that the High Court will refrain from substituting its own findings on facts for the findings that have been recorded by the inferior 1 tribunal. But to say that, if there is a dispute on facts, the jurisdiction of this Court would be completely barred, would be stating the law too broadly. Taking such a view may even persuade a party to set up a sort of semblance of disputes on facts, and urge before the Court that jurisdiction should not be exercised. This obviously could not be the intention of the Constitution makers. On the other hand, when the High Court calls for the record of judicial, or, quasi-judicial authorities, or, tribunals, it has the full power to do justice, although it will not ordinarily…
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