2013 P Cr (PLP)

SADIQ HUSSAIN BHATTI, J.

Being aggrieved and dissatisfied by the order dated 22-5-2009 passed and pronounced by the learned Judge, Special Court, Customs Taxation and Anti-Smuggling, Karachi in Spl. Case No.21 of 1995 (State v. Subuktageen Majeed and others) whereby learned Special Judge released the property in question viz. Shop No.10, situated at Plot No.3-C 5C, 4, 6, 8-C, PECHS, Commercial Area, Block-2, main Taurique Road, Karachi. The Appellant/ANF preferred this Appeal through its Deputy Director (Law) Regional Directorate, ANF, Karachi. Consequent to the information that one Subuktageen Majeed alias Subuk Majeed son of Abdul Majeed has been convicted on the basis of his own confession by the Crown Court at Kingston upon Thames on 1st July, 1981 as Case No.2 of 1998 was registered against Subuk Majeed in consequence of his confession and a notice under section 31 of the Prevention of Smuggling Act, 1977 was issued. The case is pending trial before the Judge Special Court, Customs Taxation and Anti-Smuggling, Karachi. The respondent submitted an application dated 19-4-2008 wherein she sought permission to become the intervener in the above matter. She pleaded before the Court that she had purchased the property in question from one Attorney Wahid son of Abdul Kadir in the year 1994, that in this regard Sub-Lease Deed was executed on 17-4-1995 before the Sub-Registrar. She has further submitted that in the year 2008 when she tried to dispose of the said shop for personal need, she came to know from Registrar's Office that the shop or plaza cannot be transferred as the said property is under adjudication before Special Court, Customs. She put up her case before ANF Authorities to redress her grievance, but in vain. Failing in her efforts, she approached the trial Court. The trial Court after hearing the parties allowed the application and released the said property from the ambit of the Notice under section 31 of the Prevention of Smuggling Act, 1977 issued by it on 3-12-1998. Hence this Appeal. The submissions of the respondent were rebutted by way of Rejoinder/Comments by ANF in which they alleged that the respondent/lady intervener is no more but the front person of the main accused. He has further contended that mere Registration of a document is not a certificate to abolish the status of the subject properties acquired through heinous crimes of smuggling as confessed by the main accused and purchased by his front man and associates. The sub-lease of 1/4th undivided share of such plots upon which Shop No.10, on ground floor is constructed in Motiwala Arcade appears suspicious. It is further contended that the intervener must bring her evidence as per section 33 of the Prevention of Smuggling Act, 1977 to show means/resources by which she had purchased the said property. On the other hand, learned counsel for the respondent submitted that the property in question was purchased by the respondent lawfully and performed all the legal formalities as required by law. She purchased the property from market through Attorney Mr. Wahid, who was in the field. There was no need to rowing his further antecedents. She sold the property after the Court's order. Having heard the learned counsel for the respective parties and perused the record. The record shows that property in question was purchased by the respondent from Mr. Wahid son of Abdul Qadir in the year 1994, however, it has been confirmed vide the letter dated 13-2-1996 issued by the PECH Society that the said property is in the name of Messrs Saimeen Corporation Ltd., and the property viz Plot No.3, 6-8-C, Central Commercial Area, Block No.2, PECHS Karachi is still lying and standing in name of Messrs Saimeen Corporation Ltd. The above letter further mentions that Messrs Saimeen Corporation Ltd. was incorporated in the year 1972-1973, the name of Mr. Subutageen Majeed has been shown as the Director/Shareholder/Member of the said firm, whereas notice under section 31 of the Prevention of Smuggling Act, 1977, imposing restriction over the said property was issued by the Judge, Special Court, Customs Taxation and Anti-Smuggling, Karachi on 10-10-1996. In fact the said notice was issued by the Court upon Subuktageen Majeed and his Associates, as a list of properties, including the property in question (Suit property), was submitted by the ANF that the properties were acquired through ill-gotten smuggling money. The Court did not issue such notice to the respondent. Learned Counsel for respondent also vehemently opposed by submitting that such act is in gross violation of section 31 of the Prevention of Smuggling Act, 1977, as no notice was issued to the respondent, having third party interest in the suit property. Section 31 of the Prevention of Smuggling Act, 1977, reads as under:-- "Section

31. Notice to person holding property suspected to be acquired by smuggling.

(1) Whenever a Special Judge receives information that within the limits of his jurisdiction any person, either in his own name or in the name of any relative or associate, is holding property which is reasonably suspected to be acquired by smuggling, the Special Judge may issue to such person a notice calling upon him to show cause, within such time as may be specified in the notice, which shall not be less than thirty days, why the whole or any part of such property should not be declared to be property acquired by smuggling and to be forfeited to the Federal Government." The learned counsel for the respondent relied upon the case law, which enunciated the principles laid down in Article, 9 of the Constitution that, no person shall be deprived of life or liberty save in accordance with law. Learned counsel for the respondent further relied upon the case-law PLD 2006 (Karachi) 25 wherein it is held as under:-- "It is provided in subsection (1) of section 31 that whenever a Special Judge receives information that within the limits of his jurisdiction any person, either in his own name or in the name of any relative or associate, is holding property which is reasonably suspected to be acquired by smuggling, the Special Judge, may issue to such person a notice calling upon him to show cause, within such time as may be specified in the notice, which shall not be less than thirty days, why the whole or any part of such property should not be declared to be property acquired by smuggling and to be forfeited to the Federal Government. It is to be noted that, there should be information before the Special Judge, not only that a property is suspected to be acquired by smuggling but it should "reasonably suspected" to be acquired by smuggling. It is trite law of the interpretation of statute that every word used by legislature is to be assigned a meaning." "It is evident that no notice under section 31(1) in a mechanical manner without application of judicial mind. It is mandatory requirement of law that the Special Judge must receive information containing material to show that it is reasonably suspected to be acquired by smuggling. If the information does not contain material to show that any person is holding property, which is reasonably suspected to be acquired by smuggling, the Special Judge shall not issue any notice until and unless material is furnished showing that the property is held by the person complained against, is reasonably suspected to be acquired by smuggling." As such notice was not only mandatory but in fact very practical to serve upon the respondent. Since she had third party interest in the property and such notice is imputed in law to one and allowing to the registration. That no such notice was served upon respondent but she appeared before the Court and after due discussion the Court released the property in question vide order dated 22-5-2009. The perusal of the record does not show any links between the respondent and Subuktageen Majeed and his Associates. The prosecution has not been able to establish through arguments or record of business deals or links between Subuktageen Majeed and the respondent. Subuktageen Majeed was convicted in the year 1981 for seven years, hence prosecution had sufficient time to collect tangible evidence to connect the respondent with criminal activities of Subuktageen Majeed. The prosecution has not collected any evidence to prove that the respondent was not resourceful, had no means to purchase the property. During the investigation what steps were taken and what evidence was collected against the respondent in support of section 33 of the Prevention of Smuggling Act, 1977. The important thing which I have noted is that so many allegations have been levelled against the respondent that she being front person of main accused Subuktageen Majeed, but no such evidence has been procured against the respondent except allegation. The record shows that the property in question has been purchased by the respondent/intervener and sub-lease deed was executed on 17-4-1995 whereas Prohibition Order under section 31 of the Prevention of Smuggling Act, 1977 was imposed on 3-12-1998, no such notice was given to the respondent who had third party interest. In view of the above discussion, I am of the opinion that the appellant has failed to make out a case in its favour, therefore, this Special Criminal Appeal is hereby dismissed. MWA/S-92/K Appeal dismissed.