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PLD 2004 PESHAWAR 251

Per Dost Muhammd Khan, J-

Constitution of Pakistan (1973) Art. 24–

Article 24 of the Constitution in a firm command prohibits that no person shall be deprived of his property save in accordance with law. The action of the Executive depriving a person of his property must carry the sanction of law behind it and unless that is shown/proved and unit substantial compliance with the law itself is made while taking the action, the result which flowing thereform would render such action nullity in the eye of law, coram non-judice and the same would be reduced to naught. [p. 260] D

Constitution of Pakistan (9173) Art. 4 & 199-

It is a cardinal principle that Court shall strive to explore every possible means and explanation for the validity of an order passed by functionaries of the Government and for that purpose the Court will have to study and examine the entire field of powers conferred on the authority in pursuance to which the impugned order has been passed and it is for the above reason that we have made detailed discussion and examined the relevant law and rules on the subject with reference to the admitted facts on record otherwise we are mindful of our well defined writ jurisdiction wherein factual controversy does not fall within its realm. There is another iron clad principle of law to the effect that if an act of public functionaries is not in conformity with the law and rules which control, regulate and define their powers and jurisdiction then such order made or proceedings taken would be without lawful authority and the Courts are bound to declare them of no legal effects. Whenever powers are given to Executive Authority relating to the determination of rights of citizen, those being in the nature of sacred trust are, therefore, to be exercised justly, fairly, judiciously and in accordance with law. Any violation of such principles would render their impugned orders nugatory.

Constitutional Courts of the country are the main guarantors of the fundamental rights of the people. Any encroachment and invasion made on the same by the public functionaries in violation of law or when such rights are infringed maliciously and malafidely by them then Courts shall not hesitate to firmly establish and issue writ to the wrong doer requiring him/them to do what is required by law to do and to refrain from doing an act which is prohibited by law and the Constitution. IN the instant case the respondents (ANF officials) have acted in utter disregard of law and the rules on the subject and have encroached upon the authority and jurisdiction of the special Court apart from non-compliance with the mandatory provisions of law and principle of natural justice as a result the petitioner was deprived of his property in violation of la and against the clear command of the Constitution, therefore, the auction proceedings taken in respect of the car of the petitioner and all actions taken both at pre and post auction stages being without lawful authority, without jurisdiction and based on clear mala fide thus are liable to be struck down. [p. 26] H,I & J

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