Atta Ullah & 10 Others vs Fop etc.

Form No: HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT,

MULTAN BENCH, MULTAN

JUDICIAL DEPARTMENT

WP No. 1589 of 2026

Atta Ullah and 10 others.

vs Federation of Pakistan, etc.

S.No. of Date of Order with signature of Judge and that of parties or Order/ order/ counsel where necessary Proceeding proceeding 19.02.2026. Sardar Hafeez Ahmad Khan, Advocate for the petitioners. Rana Ghulam Hussain, Assistant Attorney General for Pakistan.

Malik Muhammad Bakhsh Khakhi, AAG.

Mian Muhammad Ashfaq Hussain, Advocate for Respondent Nos. 2 to 5.

M/s Syed Itrat Hussain, Additional Collector, Maqbool Ahmed, Deputy Director, Muhammad Ramzan Sial, Superintendent (ASO) and Ghulam Asghar, Inspector (I&P) Branch from the respondent-Customs Department, Multan.

Through this constitution petition, the petitioners, who are traders of Tyre Market situated near Truck Adda, Vehari Chowk, Multan, have called in question the action of the officers of the Customs (Enforcement) Department, Multan/respondents, whereby they searched the shops, godowns and premises of the petitioners through raid conducted on the intervening night of 28-29 January, 2026 and seized the goods of the petitioners, by claiming that the said raid was conducted with mala fide, without any lawful authority, in violation of various provision of law and fundamental rights of the petitioners, which action of respondents is claimed to be coram non judice and shall result in continuing illegality.

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2.The brief background of the case as narrated in the petition is that petitioners claim that they are law-abiding small traders of the afore-mentioned Tyre Market, conducting their lawful business for decades. On the intervening night of 28-29 January 2026 (10:00 pm to 5:00 am), officials of Customs (Enforcement) Department, Multan accompanied by police, conducted a massive storm like night time raid without proper legal permission in the absence of shopkeepers when their shops, godowns and premises were closed and locks of more than 80 shops, etc. were forcibly broken. On receiving information shopkeepers rushed to the spot and were beaten brutally, abused and humiliated by the respondents. It is claimed that while conducting raid and seizure of goods no inventory, seizure memo, or detention memo was prepared in the presence of owners or independent witnesses, which is clear violation of directions issued by Federal Board of Revenue (‘FBR’) and Section 103 of Code of Criminal Procedure, 1898 (‘Cr.P.C’) dealing with search and seizure. It is also claimed that cash amounting to Rs.12,00,000/- was also taken away by the Customs Inspector from Wali Tyre Shop and never returned, which was reported immediately by the shop keeper by calling 15 police helpline but without any result. The matter was reported to the concerned Police Station Seetal Mari but the police authorities refused to receive application and an application to that effect dated 03.02.2026 was also submitted to the Director FIA Multan Zone but without any progress or result. It is also claimed that although more than 1500 tyres were detained in the raid but in the

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press release issued by the respondents the said number was mentioned as 1000 only. By claiming that the seizure of goods and taking away of cash is illegal and against various provisions of law and directions issued by FBR, prayer has been made to declare the said search and raid as illegal and quash the proceedings arising therefrom.

3.On the other hand, the learned counsel representing the Customs Authorities/respondents under instructions has denied the allegations of the petitioners and vehemently defended their action by claiming the same to have been done legally and with lawful authority. However, when asked to explain that why raid was conducted at wee hours in the night, in absence of the shopkeepers, the explanation provided by the respondents is that the same had been done to avoid any law and order situation due to resistance or protest from the shopkeepers and their union.

4.From the above narration it is noticed that the grievance of the petitioners is that the respondents without following the law and instructions issued by the FBR and without any legal justification raided their premises in the absence of shopkeepers at wee hours of intervening night of 28-29 January 2026 (10:00 pm to 5:00 am) while their shops and godowns were closed, seized stock of tyres and the entire stock of tyres recovered from the said premises during search through raid has not been properly accounted for in the seizure report prepared by the respondents, whereas the respondents have denied the said allegations as incorrect, however, the situation that has emerged during

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arguments is that the raid had been conducted in the wee hours of night to avoid any law and order situation due to resistance or protest from the shopkeepers and their union. The main question raised by the petitioners for determination by this Court is whether the raid was conducted in accordance with law or the premises of the petitioners had been raided while violating the provision of law and corresponding instructions of FBR and what is its effect.

5.To determine the aforesaid aspect of the matter, the provisions of sections 162 and 163 of the Customs Act, 1969 (‘Act’) relating to search, which includes raiding a premises for search with or without issuance of search warrants by the Judicial Magistrate are relevant. The Section 162 relating to search through search warrant is reproduced below for reference:

“162. Power to issue search warrant.- (1) Any Judicial Magistrate may, on application by a gazetted officer of customs stating the grounds of his belief that goods liable to confiscation or documents or things which in his opinion will be useful as evidence in any proceeding under this Act are secreted in any place within the local limits of the jurisdiction of such Magistrate, issue a warrant to search for such goods, documents or things.

(2)Such warrant shall be executed in the same way, and shall have the same effect, as a search- warrant issued under the Code of Criminal Procedure, 1898 (Act V of 1898).

6.Perusal of the Section 162 of the Act shows that when the customs authorities need to search a premises for confiscation of goods or to recover any documents or

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things which will be useful as evidence in any proceedings under the Act, a gazette officer of customs by stating the grounds of his belief that goods liable to confiscation or documents or things which in his opinion will be useful as evidence in any proceeding under this Act are secreted in any place within the local limits of the jurisdiction of and Judicial Magistrate, make an application to issue a warrant to search for such goods, documents or things and any such warrant, when issued, shall be executed in the same way, and shall have the same effect, as a search-warrant issued under the Code of Criminal Procedure, 1898 (Act V of 1898). The aforesaid procedure was a safeguard against illegal search and raids, which procedure had not been adopted in the instant case and it is claimed that search and raid was made by adopting the alternate procedure provided under Section 163 of the Act. The Section 163 relating to search without warrant is reproduced below for reference:

163.Power to search and arrest without warrant.-

(1)Whenever any officer of customs not below the rank of an Assistant 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 is to be made, search or cause search to be made for such goods, documents or things in that place.

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(2)An officer or person who makes a search or causes a search to be made under sub section (1) shall leave a signed copy of the aforementioned statement in or about the place searched and shall, at the time the search is made or as soon as is practicable thereafter, deliver furthermore a signed copy of such statement to the occupier of the place at his last known address.

(3)All searches made under this section shall be carried out mutatis mutandis in accordance with the provisions of the Code of Criminal Procedure, 1898 (Act V of 1898).

(4)Notwithstanding anything contained in the foregoing sub-sections and subject to previous authorization by an officer of customs not below the rank of an Assistant Collector of Customs, any officer of customs or any person duly empowered as such may, with respect to an offence related to exportation of such goods as the Federal Government may, by notification in the official Gazette, specify in this behalf-

(a)arrest without warrant any person concerned in such offence or against whom reasonable suspicion exists that he is about to be concerned in such offence;

(b)enter and search without warrant any premises to make an arrest under clause (a), or to seize any goods which are reasonably suspected to be intended for exportation contrary to any prohibition or restriction for the time being in force, and all documents or things which in his opinion will be useful for or relevant to any proceeding under this Act; and

(c)for the purpose of arresting, detaining or taking into custody or preventing the escape of any person concerned or likely to be concerned in such offence, or for the purpose of seizing or preventing the removal of any goods in respect of which any such offence has occurred or is likely to occur, use or cause to be used such force to the extent of causing death as may be necessary.

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(5)The provisions of sub-section (4) shall apply only to the areas within five miles of the land frontier of Pakistan, and within a five miles belt running along the sea coast of Pakistan.

(6)No suit, prosecution or other legal proceeding shall be instituted, except with the previous sanction in writing of the Federal Government, against any person in respect of anything done or purporting to be done in exercise of the powers conferred by sub-section (1) or sub-section(2) or, in the areas specified in sub-section (5), by sub- section (4).”

7.The provisions of Section 163 provide for powers to search and arrest without warrants, which is an alternate procedure provided by law to be adopted to avoid danger of removal of goods liable to be confiscated or any documents or things which in the opinion of Customs Officer will be useful for or relevant to any proceeding under this Act. In terms of the sub-section (1) of the same whenever any officer of customs not below the rank of an Assistant 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 is to be made, search or cause search to be made for such goods, documents or things in that place. In terms of its sub- section (2), an officer or person who makes a search or

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causes a search to be made under sub-section (1) shall leave a signed copy of the aforementioned statement in or about the place searched and shall, at the time the search is made or as soon as is practicable thereafter, deliver furthermore a signed copy of such statement to the occupier of the place at his last known address. The sub- section (3) provides that all searches made under this section shall be carried out mutatis mutandis in accordance with the provisions of the Code of Criminal Procedure, 1898 (Act V of 1898). The sub-section (4) clause (a) authorized the officer to arrest a person for commission or reasonable suspicion of commission of offence and its clause (b) authorizes the said officer to enter and search without warrant any premises to make an arrest under clause (a), or to seize any goods which are reasonably suspected to be intended for exportation contrary to any prohibition or restriction for the time being in force, and all documents or things which in his opinion will be useful for or relevant to any proceeding under this Act. The subsection (c) authorizes the officer to use force for carrying out the purpose of search, arrest and seizure of goods and documents.

8.Although search of premises and seizure of goods and documents may take place under the provisions of Section 163 of the Act, yet the said search has to take place in accordance with provisions of Code of Criminal Procedure, 1898 (‘Cr.P.C’). Sections 101 and 102 of Cr.P.C provide for search through search warrant required to be obtained under the provisions of Section 162 of the Act which procedure was not adopted, hence, need not be discussed any further. However, as search

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was made under Section 163 of the Act, Section 103 of Cr.P.C, which is applicable to search with or without warrants, shall be applicable. The relevant portion of Section 103 of Cr.P.C is reproduced below for perusal and clarity.

‘103. Search to be made in the presence of witnesses. (1) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situate to attend and witness the search and may issue an order in writing to them or any of them so to do.

(2)The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it.

(3)Occupant of place searched may attend. The occupant of the place searched, or some person in his behalf, shall, in every instance be permitted to attend during the search, and a copy of the list prepared under this section, signed by the said witness, shall be delivered to such occupant or person at his request.”

9.In terms of sub-section (1) of Section 103 Cr.P.C, the officer making the search is required to associate two or more respectable inhabitants of the locality in which place to be searched is situate to attend and witness the search and for the said purpose may issue an order in writing to them or any of them so to do and in terms of sub-section (2) the search shall be made in their presence, and a list of all things seized in the course of such search

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and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses. In terms of sub-section (3), the occupant of the place searched, or some person in his behalf, shall, in every instance be permitted to attend during the search, and a copy of the list prepared under this section, signed by the said witness, shall be delivered to such occupant or person at his request. The aforementioned procedure was mandatory in terms of section 163 of the Act, however, the said procedure has not been followed to avoid any law and order situation due to resistance or protest from the shopkeepers and their union. However, where an express provision of law provides for following a particular procedure the said course of action cannot be ordinarily avoided and same is required to be complied with in letter and spirit.

10.It would be pertinent to mention here that facing similar situation and adverse consequences arising therefrom and to ensure transparency the Federal Board of Revenue (‘FBR’) on having previously received various complaints of illegal and unauthorized raids vide its instructions through letter dated 29.04.2024 bearing C.No.1(1)E&C/2022/ issued by the signatures of Director Staff to Chairman FBR, Islamabad addressed to all Chief Collectors of Customs and the Director of Head Quarters, Directorate General of I&I-Customs, Islamabad has also formulated and conveyed directions and SOPs regarding raids on Godowns/Warehouses for search of premises to be followed in letter and spirit, which are as follows:

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‘Subject: Directions regarding raids on Godowns / Warehouses.

I am directed to refer to the subject cited above and to state that complaints have been received in the Board that the field formations of Customs raid the godowns/warehouses situated within municipal limits of different cities during the wee hours in the absence of the owners and the recovered goods are transported to the state warehouses without proper inventory. However, when the importers/owners present the import documents justifying the legal import of such goods, the goods are released to the lawful owners/ importers but as per the complaints, significantly less quantities are handed over to the lawful owners/importers. Therefore, besides fulfillment of the legal provisions as stipulated under the Customs Act, 1969, the following SOP shall be followed by the concerned field formations of Customs in letter and spirit for raiding the godowns /warehouses:

i. The raids on warehouses/godowns shall be made during the day time and such raids shall be avoided during the night time except in the cases, where the owner or his representative is available. In case, the owner or his representative is not available at such premises, the same shall be sealed and the Customs staff may be deployed to avoid any removal of the goods from such warehouse/godown.

ii. The owner or his representative should be provided with an opportunity to provide documents justifying the legal import/possession of the goods.

iii. In case, the goods are detained, the inventory should be made in the presence of the owner or his representative and independent witnesses.

iv. In case, the goods are to be returned, the same shall be returned as per the inventory made at the time of detention. On production of legal documents justifying import or legal possession of goods, the concerned Collector shall ensure that the full quantity of the detained goods is being handed over to the owner or his representative.

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v. In case, where there is a fear that goods shall be removed or some law and order situation shall be created, if raid is delayed till the day time, approval shall be taken from the concerned Chief Collector of Customs or the Director General of I&I-Customs as the case may be to raid the premises during the night.’

11.It has not been denied that the aforementioned directions and SOPs still hold the field and have neither been recalled nor superseded by any subsequent directions or SOPs. In terms of the aforementioned directions besides fulfillment of the legal provisions as stipulated under the Customs Act, 1969, the afore- mentioned SOPs have to be followed by the concerned field formations of Customs in letter and spirit for raiding the godowns/warehouses, which provide that raids on warehouses/godowns shall be made during the day time and such raids shall be avoided during the night time except in the cases, where the owner or his representative is available. In case, the owner or his representative is not available at such premises, the same shall be sealed and the Customs staff may be deployed to avoid any removal of the goods from such warehouse/godown and the owner or his representative should be provided with an opportunity to provide documents justifying the legal import/possession of the goods and in case, the goods are detained, the inventory should be made in the presence of the owner or his representative and independent witnesses. In cases where the goods are to be returned, the same shall be returned as per the inventory made at the time of detention. On production of legal documents justifying import or legal possession of goods, the concerned Collector shall ensure that the full quantity of

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the detained goods is being handed over to the owner or his representative. However, in cases where there is a fear that goods shall be removed or some law and order situation shall be created, if raid is delayed till the day time, approval shall be taken from the concerned Chief Collector of Customs or the Director General of I&I- Customs as the case may be, to raid the premises during the night.

12.The aforementioned directions clearly provide and mean that it is mandatory that raids be conducted at the day time and the night time raids should be avoided which could only be conducted in the presence of the owners or their representatives and witnesses and in case the owner or his representative is not available, the premises can be sealed to be opened in their presence and not otherwise, which is required to be done to first enable the owner to produce document relating to legal import and possession of goods with exception that in cases where there is a fear that goods shall be removed or some law and order situation shall be created, if raid is delayed till the day time, approval shall be taken from the concerned Chief Collector of Customs or the Director General of I&I-Customs as the case may be, to raid the premises during the night. In the present case, as the shops, godown and premises were closed and were under lock and key, there was no reason to believe that goods were likely to be removed besides the respondents have not been able to convince us as to how the delay would have resulted in law and order situation. Merely by claiming that the said procedure has not been followed to avoid any law and order situation due to resistance or

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protest from the shopkeepers and their union was not sufficient to break open the locks of the premises unless there was some indications such as past experience to that effect to justify the same. Besides for the said purpose the prior approval of Chief Collector of Customs or the Director General of I&I-Customs was to be obtained as the case may be to raid the premises during night. The respondents were obliged to follow the said procedure but neither the aforementioned permission was obtained before raiding the premises at night time nor the procedure provided for the same was adopted. Besides, neither the owners were provided opportunity to produce documents of legal import or possession nor the premises were sealed by requiring them to produce the said documents before breaking open the locks for seizure of goods/tyres lying therein, therefore, their action cannot be treated as justified for the reason that where a thing is required to be done in a particular manner, such thing must be done accordingly and such dictate of law cannot be termed as a mere technicality, and if the prescribed procedure is not followed, the same could not be treated to have been done in accordance with law or sufficient compliance of provisions of law or legislative intent and the said action would be illegal and without lawful authority. Reliance is placed on Jeehand versus The State through Prosecutor General Balochistan (2025 SCMR 923), Secretary, Ministry of Finance, Finance Division, Government of Pakistan and others versus Muhammad Anwar (2025 SCMR 153), Commissioner Inland Revenue, Large Taxpayers Office, Islamabad versus Pakistan Oilfields Ltd., Rawalpindi and others (2024

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SCMR 853), Nadir Khan versus Qadir Hussain and others (2024 SCMR 770), Messrs Tri-Star Industries (Pvt.) Limited versus trisa Burstenfabrik AG Triengen and another (2023 SCMR 1502), Fida Hussain versus Chief Secretary, Khyber Pakhtunkhwa, Civil Secretariat and others (2023 SCMR 1109), Attaullah Khan versus Ali Adam Afridi (2021 SCMR 1979) and Ajmir Shah versus Inspector General Frontier Corps (2020 SCMR

13.In view of what has been discussed above, as it has been observed that the requisite provisions of law and procedure prescribed in Section 163 of the Customs Act, 1969, Section 103 of Code of Civil Procedure, 1898, and directions provided in letter dated 29.04.2024 bearing C.No.1(1)E&C/2022/ issued by the signatures of Director Staff to Chairman FBR, Islamabad, addressed to all Chief Collectors of Customs and the Director of Head Quarters, Directorate General of I&I-Customs, Islamabad, have not been followed by the respondents in letter and spirit while conducting search and raid on petitioners’ premises, the said action of the respondents is declared to be without any lawful authority and of no legal effect and adverse legal consequences against the petitioners.

14.In view of above discussion, the titled constitution petition is allowed in the aforementioned terms.

(SYED AHSAN RAZA KAZMI) (MUZAMIL AKHTAR SHABIR)

JUDGE JUDGE

Zeeshan Khan *

APPROVED FOR REPORTING