(On appeal from the order of the Lahore High Court, Lahore, dated 28-5-2004 passed in W.P. No.2812 of 2004).

(a) Constitution of Pakistan (1973)---

----Art.199---Constitutional jurisdiction---Disputed question of fact-- Principle-- Controversial questions cannot be resolved in exercise of Constitutional jurisdiction.

(b) Customs Act (IV of 1969)----

----Ss.179, 193, 194-A & 196---Constitution of Pakistan (1973), Art. 199---Constitutional jurisdiction of High Court, exercise of-- Alternate efficacious remedy---Scope-- Constitutional jurisdiction should not have been exercised for the reason that efficacious remedies should have been invoked as were available under Ss. 179, 193, 194-A and 196 of Customs Act, 1969, which could have been conveniently availed by the importers by approaching concerned forum available in the hierarchy of customs, laws---Jurisdiction conferred upon such forum, could not be exercised by High Court under the garb of Art. 199 of the Constitution.

(c) Customs Act (IV of 1969)---

----Ss.162 & 163---Search without warrant---Principle---Importers paid customs duty on the goods imported by them but Customs intelligence Authorities conducted raid and intercepted the goods and. seized them on the ground of misdeclaration---Plea raised by importers was that all proceedings initiated against seizure of goods were ab initio void as the mandatory provisions as contemplated in S.163 of the Customs Act, 1969 were trot adhered to in letter and spirit---Validity---Search was conducted without having the search warrants for the reason that it could have been done in view of the circumstances prevalent at the relevant moment which could only be adjudged by the concerned officer under whose supervision the raid was being conducted---As such the same could not be done in a routine practice and every possible effort should be made to comply with the provisions as enumerated in Ss. 162 and 163 of Customs Act, 1969---Plea raised by the importer was repelled.

(d) Customs Act (IV of 1969)---

----Ss. 162, 163, 171, 179, 193, 194-A & 196---Notification S.R.O. No.495(I)/85-- Customs duty, levy of---Misdeclaration---Alternate efficacious remedy---Search without warrant--Apprehension of removal of smuggled goods---Registration of case against importers--- Importers paid customs duty on the goods imported by them but Customs Intelligence Authorities conducted raid without warrant, intercepted the goods and seized them on the ground of misdeclaration and registered criminal case against them---Importers assailed the order of Customs Authorities, in Constitutional petition before High Court wherein the Court directed the authorities to release the goods on furnishing of surety bond---Authorities raised the plea that in presence of sufficient and efficacious remedy Constitutional petition before High Court was not maintainable---Validity---Authorities had conducted search in view of strong apprehension of removal of the suspected smuggled goods---Notices under S.171 of the Customs Act, 1969, were also served upon the importers---All legal formalities were completed by the Customs Authorities before searching the godown---Registration of case against importers did not warrant interference by High Court in its Constitutional jurisdiction---Although under ordinary circumstances, provisions as contained in S.162 of Customs Act,1969, must be implemented yet in urgent and emergent situation, search could be conducted without having search warrant subject to conditions as enumerated in S.163 of Customs Act, 1969---Judgment passed by High Court was set aside and the importers were directed to approach the forum concerned available in the hierarchy of customs laws for the redressal of their grievance---Appeal was allowed.

Dr. Sajjad Ahmad v. Dr. Muhammad Bashir PLD 1979 Lah. 304; K.M. Asaf v. Abdullah Malik PLD 1976 Lah. 158; S.M. Yousaf v. Collector of Customs PLD 1968 Kar. 599; Iqbal Akhtar v. Ch. Muhammad Mushtaq PLD 1977 Lah. 1318; State Life Insurance Corporation of Pakistan v. Pakistan Tobacco Co. Ltd. PLD 1983 SC 280; Attaur Rehman Khan v. Dost Muhammad, 1986 SCMR 598; Muhammad Akhtar v. President, Cantonment Board, Sialkot Cantt. 1981 SCMR 291; Mian Muhammad v. Government of West Pakistan 1968 SCMR 935; Zahid Hussain v. Dharmumal 1971 SCMR 110; Zuhra Begum v. Sajjad Hussain 1971 SCMR 697; Landale and Morgan (Poak.) Ltd, v. Chairman, Jute Board, Dacca 1970 SCMR 853; Mahboob Alain v. Secretary to Government of Pakistan 1969 SCMR 217; Umar Daraz v. Muhammad Yousaf 1968 SCMR 880; Saghir Ali v. Mehar Din 1968 SCMR 145; Punjab Beverage Company (Pvt.) Ltd. v. Central Board of Revenue 2001 PTD 3929; Shahid Agency v. Collector of Customs 1989 CLC 1938; Ali Hussain v. Presiding Officer. PLD 1989, Kar. 157; Bhagan v. State PLD 1990 Quetta 41; Mojakkir Ali v. Regional Transport Authority PLD 1967 Dacca 6, Azizur Rahman v. F. A. T. A. Development Corporation PLD 1988 Pesh. 9; Collector of Customs v. Muhammad Mahfooz PLD 1991 SC 630; Shaheen Calico Printing Works v. Mumtaz Ali PLD 1975 Lah. 1442; Muhammad Yousaf v. The Collector of Sea Customs, Karachi PLD 1969 SC 153, S.M. Yousuf v. The Collector of Customs, Karachi 1972 SCMR 87; Sher Bahadur v. Chairman, Industrial Relations Commission PLD 1975 Kar. 483 and Shaukat Hussain v. Zulfiqar Ahmed PLD 1981 Lah. 13 ref.

Ahmer Bilal Soofi, Advocate Supreme Court and Faiz-ur- Rahman, Advocate-on-Record for Petitioners.

Syed Najmul Hasan Kazmi, Advocate Supreme Court for Respondents.

Date of hearing: 30th June, 2004.

JUDGMENT

JAVED IQBAL, J.---This petition for leave to appeal is directed against the order, dated 28-5-2004 passed by the learned Single Judge ,of the Lahore High Court, Lahore in Chambers, operative portion whereof is reproduced herein below for ready reference:--

"The petitioner has to be given interim relief under these circumstances and until the matter is disposed of through an adjudicatory process in law.

The goods be released forthwith upon receipt both with respect to the quality and the measurement: Pieces of cloth, duly signed by the petitioner's side and the official of the Customs side, be taken into custody and sealed for purposes of exhibiting these before the adjudicatory forum at the relevant time. Further safeguard will be that the petitioner furnishes a bond to the Customs Department, before release, of a sufficient amount covering the duty he likely to pay.

The moment the obligations on the part of the petitioner's side are met, the release shall take place within seven days."

2. The case of petitioners is that respondents "imported clothes in bulk of different quality from China by road and according to law paid payable customs duties etc., at Sust, Gilgit Customs Station, maintained by Customs Authorities for clearing of goods imported from China. Customs Authorities at Customs Station Sust, cleared the imported goods against the Bills of Entry after paying the duty and taxes levyable thereon along with other goods as mentioned in the said Bills of Entry. The petitioner after paying the Customs Duties etc., started his journey toward Punjab, when the petitioner No. 1's imported goods were intercepted by Intelligence and Investigation Staff of Customs and Excise Harripur on 1-12-2003 on a report as alleged in Order-in-Original No. 16, dated 31-12-2003. The imported goods i.e. clothes were loaded in four trucks which were intercepted by the Staff of Customs Intelligence Special Range, Harripur and consequently seized on the ground of misdeclaration. On examination as alleged by the Customs Authorities of Harripur Region (Mansehra) reported that detailed examination of the goods was carried out in comparison with the produced Bills of Entry and as a result thereof, foreign origin clothes measuring 29000 Yards was found in excess of the goods declared in produced Bills of Entry in question. The goods which were covered by Bills of Entry were handed over to the owner of the goods namely Raja Asad Hameed son of Abdul Hameed along with Truck No. 1SA-9426, H.R.-2245, GLT-1416 under proper receipt but remaining 29000 Yards foreign origin clothes not covered by the produced Bills of Entry seized along with Truck No. C-1098-Harripur under relevant provision of Customs Act, 1969. That consequently, after seizing the goods the matter was finally adjudicated by the Additional Collector of Regional Office Jamrood Road, Peshawar by passing the Order-in-Original No. 16 of 2004, dated 14-1-2004, whereby Adjudicating Authority released the imported clothes measuring 29000 Yards excess of Bills of Entry, on the ground, that special goods are freely importable and were brought through, authorized routes, as such, are not hit by section 2(s) of Customs Act, 1969 read with S.R.O. No. 495(I)/85 and consequently seized goods were redeemed to the petitioner No. 1 against the payment of Customs duty along with fine etc. The petitioner firm, after paying the Customs Duties along with fine etc., as ordered by the Adjudicating Authority in Order-in-Original No.16, dated 14-10-2004 got released the goods," which was subsequently seized without any lawful justification by the Customs Authorities and released by the learned Single Judge in Chambers vide order impugned which has been assailed by the Collector Customs (petitioner).

3. The case of Collector Customs (Petitioner No.1) is that "on 17-2-2004 at about 2:00 Hours, pursuant to an information, Customs staff intercepted a Mazda Truck No. 1RO-8961 near Electricity Grid Station, Noor Road, Badami Bagh, Lahore which was found loaded with foreign origin cloth. Two persons were found available in the Mazda Truck i.e. Muhammad Amin (driver) and. Shahadat Khan (concerned with the cloth loaded in the truck). The Mazda Truck and aforesaid persons were brought to Customs House, Lahore. A detailed examination of the, Mazda truck resulted in recovery of 177 rolls of China origin velvet cloth, width 57", plain and printed, measuring 13275 Yards. Each roll of recovered cloth was found to bear the following words printed thereon:

"Jiangus Changsh Huanhai Weaving Co. Ltd. Hakim Ghazi Ltd., Kabul-Afghanistan. "

On demand aforesaid persons could not establish lawful possession or legal import of the above recovered cloth. Therefore, the same along with truck was seized under sections 168(1) and 157 of the Customs Act, 1969 for contravention of the provisions of sections 2(s), 16 Ibid punishable under clause (89) of sections. 156(l) and 178 of the Customs Act, 1969. The aforesaid persons were also arrested. During preliminary interrogation, accused Shahadat Khan disclosed that he had loaded the seized cloth in Mazda truck from a godown.No.22-S/86 situated near Adil Weigh Bridge, Joseph Colony, Noor Road, Badami Bagh, Lahore. He further disclosed that further quantity of identical cloth was also available in the godown and .in the process of shifting to market. The above position was communicated to Deputy Collector of Customs ASO who decided to cause search of the godown immediately in terms of section 163 of the Customs Act, 1969. After completion of all legal formalities and on pointation of accused Shahadat Khan, the said godown was searched which resulted in recovery of the following goods of China origin:--

During checking of recovered goods, two persons namely Hafiz Muhammad Saleem and Haji Muhammad Hassan (present petitioner) came on the spot and claimed to be the owners of the goods. They however, could not produce any evidence showing lawful possession of legal import of the recovered goods: Therefore, the recovered good were seized under section 168(1) of the Customs Act, 1969 for offence punishable under clause (89) of section 1.56(1) read with section 178 ibid. The above persons were also arrested followed by criminal proceedings F.I.R. No.6 of 2004, dated 17-2-2004, I&P Cell, Custom House, Lahore."

4. Mr. Ahmer Bilal Soofi, learned Advocate Supreme Court appeared on behalf of Collector of Customs (petitioner No. 1) and urged vehemently that in presence of sufficient and efficacious remedy, the writ petition was not maintainable which aspect of the matter has been ignored resulting in serious miscarriage of justice. It is contended that in view of various controversial facts, the Constitutional jurisdiction should have not been exercised as it was for the forum concerned to resolve the controversial issue on the basis of evidence and hence the interim relief of a perpetual in nature could not have been granted by the learned High Court in exercise of Constitutional jurisdiction specially when F.I.R. bearing No. 6 of 2004, dated 17-2-2004 was registered against the respondents under sections 156(1)(89)(90), 157 and 178 of the Customs Act, 1969. It is argued emphatically that the view point as canvassed on behalf of petitioner No. 1 has been ignored without any rhyme and reason which has caused serious prejudice against Customs authority (petitions: No. 1). It is also argued that the pivotal question as to whether the goods seized were the same allegedly imported on valid documents or smuggled one, could have only been decided by the concerned Customs authorities and learned High Court has erred while exercising Constitutional jurisdiction to adjudicate upon such a controversial issue. It is pointed out that challan in case bearing F.I.R. No. 6 of 2004, dated 17-2-2004 is fending trial before learned Special Judge Customs and all the contentions raised before the learned High Court could have been conveniently agitated before learned Special Judge Customs.

5. Syed Najmul Hasan Kazmi, learned Advocate Supreme Court for the respondents supported the order impugned for the reasons enumerated therein with further submission that entire proceedings are ab initio void being conducted in violation of provisions as contained in section 163 of the Customs Act, 1969 as no search could be conducted without having proper search warrants. It is next contended that crushed cloth were imported on valid documents (Bill of Entry) and hence the question of seizer by the Customs Authorities does not arise.

6. We have carefully examined .the respective contentions as agitated on behalf of the parties and scanned entire record with the eminent assistance of learned counsel and perused the order impugned. It transpired from scrutiny of the record that various controversial questions are involved in the matter which cannot be resolved by invocation of the Constitutional jurisdiction such as whether Messrs Universal Gateway Trading Corporation, Giligt acquired any premises at Lahore for storage of foreign origin goods said to have been imported by them? Whether Messrs Universal Gateway Trading Corporation, Gilgit, has been registered with Sales Tax Department by means of Registration No.7-2-6911-25-37 and is bound to maintain records of sale and purchase of goods? Whether the proceedings of search of the Godown pertaining to Messrs Universal Gateway Trading Corporation, under section 163 of the Customs Act, 1969, seizer of foreign origin smuggled goods under section 168(1) of the Customs Act, 1969 and enunciation of criminal proceedings 'under section 161 of the Customs Act, 1969 were in accordance with law or otherwise? Whether there was sufficient reasons to believe the availability of smuggled goods in the Godown pertaining to Messrs Universal Gateway Trading Corporation, Gilgit? Whether a copy of statement under section 163 of the Customs Act, 1969; prepared by the authorized officer, notices under section 171 of the Customs Act, 1969, served upon respondents could have been done by the concerned Customs authorities or otherwise? What should be the importance and significance of photostat copies of 11 Bills of Entry and order in the two seizer cases produced by the respondents to substantiate their contention that the seized clothes were validly imported? Whether as per Report bearing No. 1DP/LAB/360/2004, dated 20-12-2004 seized cloth is "knitted pile fabric" which is classified under PCT Heading 6001.9200? Whether Bills of Entry indicate the import of any cloth under PCT Heading 6001.9200? Whether Bill of Entry No.494, dated 12-11-2002 shows import of Silk Noil Yarn is not in the name of respondent No.1 and thus not relevant to the seized yarn? and whether the seized cloth as well as yarn are notified by means of Notification No. S.R.O. 491(1)/85, dated 23-5-1985 issued under section 2(s) of the Customs Act, 1969 and accordingly attracts the provision of section 2(s) of the Customs Act,'1969.

7. We are of the firm opinion that the above mentioned controversial questions cannot be resolved in exercise of Constitutional jurisdiction as has been done by the learned Single Judge of the Lahore High Court in Chambers. It is not understandable how the above controversial questions could be resolved by the learned High Court while exercising its Constitutional jurisdiction under section 199 of the Constitution of Islamic Republic of Pakistan. In fact the above controversial questions were never considered by the learned High Court and the matter has been decided in a casual and cursory manner. The Constitutional jurisdiction should have not been exercised for the reason that alternate efficacious remedies should have been invoked as were available under sections 179, 193, 194-A and 196 of the Customs Act, 1969, which could have been conveniently availed by the respondents by approaching concerned forum available in the hierarchy of Customs laws. Besides that the jurisdiction conferred upon such forum, cannot be exercised by the High Court under the garb of Article 199 of the Constitution of Islamic Republic of Pakistan, because "the object of the writs is to curb excess of jurisdiction, to keep inferior Courts and Tribunals within their bounds, and the writ jurisdiction is appropriate only in all such cases where "substantial right" of an applicant has been so far invaded as to prejudicially affect him if the proceeding or judgment remains un-reversed. But where substantial justice had been done, High Court declined interference despite some irregularity in proceedings. Where orders passed by Authorities below were based on evidence on record and law applicable on the subject, it could not be interfered with by High Court in exercise of Constitutional jurisdiction where petitioner failed to demonstrate before Court as to what injustice has been caused to him, where substantial justice had been done and no prejudice of any kind caused to any party interference was declined by High Court in Constitutional jurisdiction. Constitutional jurisdiction should be exercised with extra care and caution bearing in mind that there is a basic difference between want of jurisdiction and an illegal or irregular exercise thereof. The defect, if any, in an order can, according to the procedure established by law, be corrected by appeal or revision. The jurisdiction under this Article will not be made available for interfering with the orders of the Courts below simply on procedural matters or on the plane of propriety. The power under this Article is not intended merely for correcting their errors in law or on facts". Dr. Sajjad Ahmad v. Dr. Muhammad Bashir (PLD 1979 Lah. 304). There is no cavil with the proposition that "the provision as contained in Article 199 does not empower the High Court to interfere with the decision of a Court or Tribunal of inferior jurisdiction merely because the same is wrong as in that case it would make the High Court's jurisdiction as that of the Appellate Court's jurisdiction as that of the Appellate Court which is not the intention of the Legislature." K.M. Asaf v. Abdullah Malik (PLD 1976 Lahore 158).

8. We are not persuaded to agree with the main contention of learned counsel appearing on behalf of respondents that all the proceedings initiated against them are ab inito void as the mandatory provisions as contemplated in section 163 of the Customs Act, 1969 were not adhered to in letter and spirit and the search was conducted without having the search warrants for the reason that it could have been done in view of the circumstances prevalent at the relevant moment which could only be adjudged by the concerned officer under whose supervision the raid was being conducted. It however, cannot be done in a routine practice and every 'possible effort should be made to comply with the provisions as enumerated in sections 162 and 163 of the Customs Act, 1969. It must not however, be lost sight of that such a raid could have been conducted pursuant to the provisions as contemplated under section 163 of the Customs Act, 1969, which inter alia provides that "whenever any officer of Customs not below the rank of an Assistant Collector or Deputy Collector of Customs or any other officer of like rank duly employed for the prevention of smuggling has reasonable grounds for believing that any goods liable to confiscation or any documents or things which in his opinion will be useful for or relevant to any proceeding under this Act are concealed or kept in any place and that there is a danger that they may be removed before a search can be effected under section 162 he may, after preparing a statement in writing of the grounds of his belief and of the goods, documents or things for which search in to be made search or cause search to be made for such goods documents or things in that place". (Emphasis provided) Insofar as the provisions as contemplated in sections 162 and 163 of the 'Customs Act, 1969, are concerned, the same have been interpreted in different cases on various occasions and judicial consensus seems to be that "before embarking upon a search without warrant the Customs Officer shall prepare a statement in writing of the grounds of his belief that the goods liable to confiscation are concealed or kept in any place and that there is a danger that they may be removed before a search can be effected under the provisions of section 162 of the Act. The law further requires that the statement must also mention the goods, documents or things for which fire search is to be made: 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 grounds 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 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 be effective only if the procedure prescribed by law is faithfully and honestly followed by application of mind in each individual case Legislative wisdom behind the statutory requirement under sections 162 and 163, which is legislative wisdom behind it which is to the effect that ordinarily a place is to be searched only after search-warrant is obtained from the Magistrate as is contemplated under the preceding section and only in extraordinary cases this section can be dispensed with as is permissible under section 163 but then grounds are to be stated by the Customs Officer who is allowed this facility for his belief and decision in not obtaining the search warrant. He must state the grounds which justify apprehension of danger of removal of goods. For example, information is received from such and such person that the party concerned has taken steps or is about to take steps for removal of goods and if search warrant is obtained the same will consume time or the Magistrate is not available, hence there is no other way but to go for the search without warrant. By providing such statutory requirements, the intention of Legislature is to provide safe-guard against mala fide interference with rights of citizens in respect of property and against violation of right of privacy". (S.M. Yousaf v. Collector of Customs PLD 1968 Kar. 599), Iqbal Akhtar v. Ch. Muhammad Mushtaq PLD 1977 Lah. 1318).

9. We have also examined the ground of search under section 163 of the Customs Act, 1969, as mentioned by the Deputy Collector, Customs in the order; dated 17-2-2004 which is reproduced herein below for ready reference:--

"Grounds of belief for search under section 163 of the Customs Act, 1969.

Today on 17-2-2004, the staff of ASO has seized 13275 yards of China origin velvet cloth when the same was being shifted by Mazda Truck No. LRO-8961. I have considered all the facts and circumstances of the case. I have also examined the accused namely Shahadat Khan who has arranged loading of .the seized cloth from Godown No. 22-S/86, Joseph Colony, near Adil Weigh Bridge, Noor Road, Badami Bag h, Lahore.

(2) I, Ambreen Tarar Deputy Collector of Customs (ASO), Custom House, Lahore am of the belief that further huge quantity of foreign origin cloth is available in the above godown and that there is danger of removal of the said goods in case course under section 162 of the Customs Act, 1969 is adopted.

(3) In view of the aforesaid, I exercise my powers conferred upon me under section 163 of the Customs Act, 1969 and order to cause search of the above premises by Mr. Muhammad Saleem Ch. Inspector Customs ASO in accordance with law. A copy of this memo. is also retained in my office.

Dated: 17-02-2004 (Sd.)

Deputy Collector

Customs A.S.O."

10. A bare perusal of the said order would reveal that search was conducted in view of strong apprehension of removal of the suspected smuggled goods. Notices under section 171 of the Customs Act, 1969, were also served upon the respondents. In our view, all the legal formalities were completed by the Customs authorities before searching the godown and registration of case against the respondents, which, hardly warrants interference by the High Court in its Constitutional jurisdiction because "Superior Courts should not involve themselves into a thorough probe or in-depth investigation of disputed questions of fact which necessitate taking of evidence-In depth investigation can conveniently and appropriately be done by the forums available in the hierarchy-Constitutional jurisdiction is primarily meant to provide expeditious and efficacious remedy in a case where illegality, impropriety and flagrant violation of law regarding action of the authority is apparent and can be established without any comprehensive inquiry into complicated, ticklish, controversial and disputed facts- Controversial questions cannot be decided by High Court in exercise of powers as conferred upon it under Art. 199 of the Constitution." (State Life Insurance Corporation of Pakistan v. Pakistan Tobacco Co. Ltd. PLD 1983 SC 280; Attaur Rehman Khan v. Dost Muhammad, 1986 SCMR 598; Muhammad Akhtar v. President, Cantonment Board, Sialkot Cants. 1981 SCMR 291; Mian Muhammad v. Government of West Pakistan 1968 SCMR 935; Zahid Hussain v. Dharmumal 1971 SCMR 110; Zuhra Begum v. Sajjad Hussain 1971 SCMR 697; Landale and Morgan (Pak.) Ltd. v. Chairman, Jute Board, Dacca 1970 SCMR 853; Mahboob Alam v. Secretary to Government of Pakistan 1969 SCMR 217; Umar Daraz v. Muhammad Yousaf 1968 SCMR 880; Saghir Ali v. Mehar Din 1968 SCMR 145; Punjab Beverage Company (Pvt.) Ltd . v. Central Board of Revenue 2001 PTD 3929). It hardly needs any elaboration that "where a particular statute provides a self-contained machinery for the determination of question arising under the statute where law provides a remedy by appeal or revision to another Tribunal fully competent to give any relief, any indulgence to the contrary by the High Court is bound to produce a sense of distrust in statutory Tribunals-Petitioner without exhausting his remedy provided by the statute filed Constitutional petition-Constitutional petition, in circumstances, was not maintainable." (Shahid Agency v. Collector of Customs 1989 CLC 1938; Ali Hussain v. Presiding Officer PLD 1989 Kar. 157; Bhagan v. State PLD 1990 Quetta 41; Mojakkir Ali v. Regional Transport Authority PLD 1967 Dacca 6, Azizur Rahman v. F.A.T.A. Development Corporation PLD 1988 Pesh. 9).

11. It is worth-mentioning here that the provisions as contained in sections 162 and 163 of the Customs Act, 1969 were examined by this Court in case titled Collector of Customs v. Muhammad Mahfooz (PLD 1991 SC 630) wherein it was held that "so far powers under section 163 of the Customs Act, 1969 are concerned, they are to be read along with section 162 of the Customs Act. Requirement of section 162 of the Customs Act is that on application by a gazetted officer of Customs, in which grounds were stated, search-warrant was to be obtained from the Magistrate having local jurisdiction and such warrant would be executed in the same way and would have, the same effect as provided under the Code of Criminal Procedure, 1898. This requirement of issue of search warrant by the Magistrate could be dispensed with under section 163 of the Customs Act, which empowers Assistant Collector of Customs or any other officer of like rank to make search without warrant if he was satisfied that there was danger of removal of goods if search-warrant was obtained and further he had to record such reasons".

12. No doubt that under ordinary circumstances, the provisions as contained in section 162 of the Customs Act, 1969, must be implemented but in urgent and emergent situation, search can be conducted without having search warrant subject to conditions as enumerated in section 163. In this regard reference can be made to cases titled Shaheen Calico Printing Works v. Mumtaz Ali PLD 1975 (Lah.) 1442, Iqbal Akhtar v. Muhammad Mushtaq PLD 1977 (Lah.) 1318, S.M. Yousaf and others v. Collector of Customs and others PLD 1968 Kar. 599, Muhammad Yousaf v. The Collector of Sea Customs, Karachi PLD 1969 SC 153, S.M. Yousuf v. The Collector of Customs, Karachi 1972 SCMR 87,Sher Bahadur v. Chairman, Industrial Relations Commission PLD 1975 Kar. 483, Shaukat Hussain v. Zulifqar Ahmed PLD 1981 Lah. 13.

13. In sequel to above mentioned discussion, this petition is converted into appeal and allowed. The judgment impugned, dated 28-5-2004 passed by the Lahore High Court, Lahore, is hereby set aside. The respondents may approach the forum concerned available in the hierarchy of Customs laws for the redressal of their grievance.

M.H./C-9/S Appeal allowed.