P L D 2015 Peshawar 80 (PLP)

YAHYA AFRIDI, J.

By this single judgment, this Court proposes to dispose of four Criminal Appeals, as they have all common question of law relating to section 43 of the Prevention of Smuggling Act, 1977 ("Act") and they arise out of the orders passed by the learned Judge, Special Court (Central) Customs Taxation, Anti Smuggling, N.-W.F.P., Peshawar. The particulars of which are as follows:-- i. Criminal Appeal No.211/08 State through ANF v. Haji Iqbal Shah and others. ii. Criminal Appeal No.173/04 The State through ANF v. Noor Feroz. iii. Criminal Appeal No.476-08 State through ANF v. Javed Baig iv. Criminal Appeal No.476/08 State through ANF v. Nisar Khan.

2. Through these appeals, the appellants have challenged the judgments of the learned Judge, Special Court (Central) Customs, Taxation, Anti Smuggling NWFP, Peshawar ("Special Judge"), whereby the information petition filed under section 31 of the Act, in respect of the properties of Haji Iqbal Shah and others, respondents, was dismissed, vide its judgments of different dates.

3. The brief and essential facts leading to the institution of these appeals are that the information petition under section 31 of the Act was filed by the Anti Narcotics Force, ('ANF') Regional Office, Peshawar, on 5-12-1997 against the persons, who are twelve in number; that the properties of the respondents shown by the ANF, were suspected to have been purchased with the wealth earned through smuggling; that the respondents were asked to show cause as to why their properties should not be declared to be properties acquired by smuggling and why the same should not be forfeited in favour of State; that named respondents in the present appeals attended the proceedings and submitted their respective replies; that the learned Judge, Special Court, after considering the evidence of the parties, dismissed the petition filed under section 31 of the Act, vide order dated 4-7-1998; that the ANF feeling aggrieved with the said order, filed appeal in this Court under section 43 of the Act, which was dismissed, vide judgment dated 25-1-1999; that the said judgment of this Court was challenged in writ jurisdiction, which also met the same fate having been dismissed on 11-6-2003; that dissatisfied with the judgment of this Court, the ANF filed a petition in the Supreme Court; that the apex Court, while converting the same into appeal allowed the same, vide judgment dated 15-4-2005 and remanded the case to the trial Court with the direction that before issuance of the original notice, the trial Court should consider the material laid down before it with conscious and judicial mind; that if such an examination leads to a reasonable suspicion that the properties in question have been acquired with the wealth earned by smuggling only, then the trial Court shall issue notice to the accused and that the Special Court, after remand, again dismissed the petitions of ANF, vide judgments of different dates. Hence, these Criminal Appeals before this Special Appellate Court, exercising its jurisdiction under the enabling provision of the Act.

4. At the very outset of the proceedings, the learned counsel appearing on behalf of the respondents, while raising a preliminary objection, contended that by virtue of section 47(2) of Prevention of Smuggling Act, 1977, the appeals filed by the ANF being incompetent are liable to be rejected, as only a Law Officer appointed under the Central Law Officers Ordinance, 1970, is competent to conduct proceedings before the Special Appellate Court and that the ANF did not fall within the definition of "aggrieved person", and thus the present appeals are not maintainable and competent in the eyes of law.

5. This issue has been adjudged against the appellant, ANF, by this Court in Haji Iqbal Shah's case (1999 PCr.LJ Peshawar 1125) and decided on 25-1-1999, which was affirmed by the Constitutional Bench of the High Court, wherein it was held that:- " It is thus apparent that section 43 of the Act is a bar to the appeal filed by the appellant ANF " The appeal against the aforementioned decision was filed before the apex Court, which has granted leave to defend to ANF, without suspending the operation of the said judgment of this Special Appellate Court and the Constitutional Bench of the Peshawar High Court. Following the 'ratio decedenti' laid down by this Special Appellate Court in Haji Iqbal Shah's case ('Supra'), the Peshawar High Court, while excercising its constitutional jurisdiction in Obaid Khan's case (2012 PCr.LJ Peshawar 1765), has also reaffirmed the dismissal of appeals of ANF on the grounds that:- " Under section 47 of the Act only Special Law Officers who are appointed under the Central Law Officer Ordinance, 1970 are competent to conduct proceedings before the Special Appellate Court on behalf of the Federal Government. ..There is no such provision in the Act that provides provision of privately engaged counsel . that dismissal of any charge on complainant brought against the person involved therein shall amount to an acquittal ..Their right of appeals not available in the provisions of the Act. Therefore, it being a substantive right cannot be claimed by implications. It is in the circumstances, we would subscribe to the earlier view taken by this Court and the view taken by the learned Special Appellate Court in the instant case that the petitioners do not fall within the definition of aggrieved person, hence the impugned judgment of the Special Appellate Court requires no interference from this end."

6. The learned counsel appearing on behalf of the appellants/ANF, when confronted with the preliminary objections discussed above, was unable to meet the objections raised by the learned counsel for the respondents and thus could not defend the competency and maintainability of the appeals filed by the ANF before this Court.

7. Before we proceed to legally determine the preliminary objection raised by the respondents against the very maintainability of the present appeals filed by ANF before this Special Appellate Court, it would be appropriate to first lay down the two issues, which would require deliberations; ISSUE NO.1 Whether this Special Appellate Court exercising its jurisdiction under section 47 of the Act is bound by its own decision and thus of Division Bench exercising jurisdiction under the Constitutional jurisdiction as mandate under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. ISSUE NO.2 Whether the leave granting order passed by the apex Court in decision rendered by this Appellate Court and Constitutional Court of a High Court can be regarded as a decision to be followed under the command of Article 189 of the Constitution."

8. Taking ISSUE NO.1 first, it is noted that generally Courts in order to maintain consistency in its judgments are to follow its own decisions and in cases where it differs with the precedent cited before it, it has to give reasons for the same and proceed with its decision. However, in case a Bench of the High Court or the apex Court, differs with the view rendered by an earlier decision, it may render reasons for the same and proceed to decide the case, where the decision cited and differed is of a Bench comprising of worthy Judges, who are less in number. And in case, the judgment cited and differed is of a Bench consisting of the same or more number of worthy Judges, it is not to proceed and decide the case but to refer the same for adjudication before a larger Bench. This matter was aptly discussed by the Supreme Court of India in Motilal Padampat Sugar Mill's case (AIR 1979 SC 621), wherein the worthy Court enunciated the principle in terms that:-- "We find it difficult to understand how a bench of two Judges in Jeet Ram's case could possible overturn or disagree with what was said by another Bench of two Judges in Motilal Sugar Mills' case. If the Bench of two Judges in Jeet Ram's case found themselves unable to agree with law laid down in Motilal Sugar Mills' case, they could have referred Jeet Ram's case to a larger Bench, but we do not think it was right on their part to express their disagreement with the enunciation of the law by a coordinate Bench of the same Court in Motilal Sugar Mills." The 'ratio decidendi' of the aforementioned decision of the Supreme Court of India was cited and approved by our apex Court in cases of Multiline Associates. v. Ardeshir Cowasjee (PLD 1995 SC 423), Muhammad Saleem v. Fazal Ahmad (1997 SCMR 314) and Babar Shehzad v. Said Akbar (1999 SCMR 2518). In Ardeshir Cowasjee v. Karachi Building Control Authority (1999 SCMR 2883), the apex Court reiterated the said principle in terms:-- "It may be pointed out that a Bench of the same number of Judges of the same High Court, or of the Supreme Court, cannot deviate from the view of an earlier Bench as rightly has been held in the case of Multiline Associates v. Ardeshir Convasjee and others in relation to the High Court." Finally, the Supreme Court of Pakistan has in All Pakistan Newspapers Society v. Federation of Pakistan (PLD 2004 SC 600), approved the aforementioned principle laid down in the cases cited hereinabove.

9. Now moving on to ISSUE NO.2, it is noted that by now, it is a settled principle of safe administration of justice that a leave granting order passed by the apex Court, does not lay down a law to be followed, having a binding force, as is envisaged under Article 189 of the Constitution of Islamic Republic of Pakistan, 1973. This matter has been a matter of discussion of the superior Courts of our jurisdiction. In this regard, Justice Anwar-ul-Haq, J, while deciding a writ petition in Muhammad Iqbal Khan's Case (PLD 1963 (W.P.) Lahore 11), explained the principle very expressly in terms that:-- "Mr. Qadir Bakhsh requested that as recently their Lordships of the Supreme Court have granted special leave to appeal in Civil Petition No.104 of 1961 (Mst. Amir Begum v. Umar Din etc.) to examine this very question, I should keep the present petition pending until the matter is decided by the Supreme Court. I regret I am not inclined to adopt this course, for the reason that the mere grant of special leave by the Supreme Court does not mean that the law laid down by a Division Bench of this Court is no longer good law. Sitting as a Single Judge, I am bound to follow the decision of the Division Bench, until such time as it is reversed by a large bench of this Court or by the Supreme Court. In the second place, it is not known as to when the decision of the Supreme Court will be given and it is desirable that writ petitions relating to rehabilitation matters should be disposed of as expeditiously as possible." The ratio decidendi in the aforementioned case has been consistently followed by the superior Courts of our jurisdiction. Some of the important case in this regard are Muhammad Ismail v. The State (PLD 1974 Karachi 29), Yousaf A. Mitha and 3 others v. Aboo Baker and 2 others PLD 1980 Karachi

942. Finally, the Hon'ble Supreme Court has also reiterated the principle in Shipyard K Damen International v. Karachi Shipyard and Engineering Workers Ltd (PLD 2003 Supreme Court 191), wherein it was observed as under:-- "We are not persuaded to agree with Mr. M.S. Baqir, learned Advocate, Supreme Court that leave granting order in case C.P. No.383-K of 2002 decided on 17-4-2002 has modified the law as laid down in National Construction Company Limited v. Aiwan-e-Iqbal (PLD 1994 Supreme Court 311) because a leave granting order passed by Supreme Court does not lay down law to be followed, hence this aspect of the matter hardly needs any further elaboration." (Emphasis provided) In view of the above legal discourse, it can safely be stated that the present appeals have not been competently filed and thus not maintainable in the eyes of law. 9(sic). Before parting with this judgment, it is important to note that during the proceedings before this Court in Criminal Appeal No.211 of 2008, an application was moved by Mst. Safia Rasool (C.M. No.398-P/12), wherein she asserted that she is the owner of House No.35-C Sahibzada Abdul Qayyum Road, University Town, Peshawar, measuring 5.75 kanals on the basis of gift deed executed in her favour by her late husband Agha Ghulam, Rasool; that the said transfer stands duly incorporated in the record of the Town Municipal Administration TMA Town-III, Peshawar but the same has wrongly been freezed in pursuance of a Notice No.673/ANF/PR/97 dated 1-3-1997. Now that this appellate Court has held that the appeals filed by ANF are not maintainable in the eyes of law, the miscellaneous application filed by Mst. Safia Rasool would also be not maintainable in its present form. However, in its true perspective, the said application impugns the order passed by the Special Judge under section 32 of the Act, whereby her property has been forfeited without any notice to her, as was required and mandated under section 31 of the Act. When the alleged illegality is so grave, it would not be appropriate for this Appellate Court to shut its eyes to her grievance. In this regard, when we review the enabling provisions of the Act, it is noted that this Court under section 43 of the Act, while exercising its appellate jurisdiction, can hear appeals filed by an aggrieved person, 'inter alia', against an order of forfeiture passed by the Special Court under section 32 of the Act, as is the case of Mst. Safia Rasool. Section 43 of the Act provides that:- 43.

Appeal.

(1) Any person aggrieved by an order of the Special Judge passed under section 31, section 32 or section 34 may, within thirty days from the date of such order, prefer an appeal before the Special Appellate Court whose decision thereon shall be final. (2) The provisions of the Limitation Act, 1908 (IX of 1908), shall apply to an appeal filed under subsection (1). Thus, in view of the peculiar circumstances leading Mst. Safia Rasool to file the application challenging the order of forfeiture passed by the Special Court , this appellate Court treats the said the application as an appeal under section 43 of the Act. Furthermore, admittedly, as no notice was served upon her under section 31 of the Act, the delay if any, is hereby condoned. Now, when this Appellate Court canvasses the record provided by Mst. Safia Rasool, it is noted with concern that the Municipal Authority has confirmed her stance. This is evident in letter No.548 dated 1-3-2012 addressed to the Assistant Director (Assets), Anti Narcotics Force, Hayatabad, Peshawar, by the Town Municipal Officer, TMA Town-III, Peshawar, which reads as follows:-- "From: The Town Municipal Officer, TMA Town-III, Peshawar. To: Assistant Director (Assets), Anti Narcotics Force, Hayatabad, Peshawar. Sub:- PROPERTY NO.35-C SAHIBZADA ABDUL QAYYUM ROAD UNIVERSITY TOWN PESHAWAR. Reference your old letter No.673/ANF/PR/97 dated 1/3/97 and owner Application dated 24/01/2012. This is to inform you that the property mentioned at serial b. house No.35-C. Sahibzada Abdul Qauyyum Road, University Town, Peshawar, has wrongly been mentioned to be the ownership of Haji Iqbal Shah. According to the record of this committee, the house No.35-C, Sahibzada Abdul Qayyum Road, University Town, Peshawar Belongs to Mst. Safia Rasool gifted to her by her husband (late) Agha Ghulam Rasool back in the year, 1971. In fact house No.35-C (1) measuring 2.80 kanals belongs to Haji Iqbal Shah, which has been in-advertently mentioned as house No.35-C, Sahibzada Abdul Qayyum Road, University Town, Peshawar." Necessary correction may please be made in your record. Enclosed photocopy of letter No.673/ANF/PR/97 TOWN MUNICIPAL OFFICER Tma Town-III, Peshawar." In order to confirm the veracity of the contents of the aforesaid letter, this Court deemed it appropriate to exercise its authority vested under section 37 of the Act, to summon the competent Officer from the University Town Committee, Peshawar. In this regard, the Administrator, University Town Committee/Custodian of the original record, relating to property Nos.35-C and 35-C(1) situated at Sahibzada Abdul Qayum Road, University Town, Peshawar, was put on notice. On 10-3-2014, Mr. Abdul Waheed Durrani, Office Assistant, Municipal Committee, University Town, Peshawar, appeared before this Court and recorded his statement on oath. The parties were allowed to cross-examine the said Court witness. The evidence, so recorded, was in terms that:-- "I have brought with me the record of ownership of plots/property No.35- C as well as 35 -C (1), Sahibzada Abdul Qayum, University Town Peshawar. As per my record the property No.35-C measuring 8.45 kanals belong to Mst. Safia Rasool, gifted to her by her husband late Ghulam Rasool in the year, 1971 whereas the property/plot No.35-C (1) measuring 2.80 kanals belong to Haji Abdul Manan, who has obtained NOC from our office bearing No. 349/UTC-35-C dated 31-3-1991 for transfer in the name of Haji Alimat Shah (respondent No.2), Muhammad Shah, Haroon (respondent No.8 and Farooq (respondent No.9) sons of Haji Iqbal Shah. Copy of the NOC is placed on file. Cross By Syed Rehman Khan, learned counsel for ANF: I have seen the certified copy of registered sale deed, whereby Haji Abdul Manan and others have transferred the property/plot No.35-C (1) in favour of Haji Alimat Shah and others sons of Haji Iqbal Shah. This docuiment is, however, not available in our record."

11. In view of the circumstances stated hereinabove, the house of Mst. Safia Rasool, requires to be released from all encumbrances imposed due to the impugned action and order.

12. Accordingly, for the reasons stated hereinabove, this Special Appellate Court holds as under:- (I) All the four appeals filed by ANF, stated below, (a) Criminal Appeal No.211/08 State through ANF v. Haji Iqbal Shah and others. (b) Criminal Appeal No.173/04 The State through ANF v. Noor Feroz. (c) Criminal Appeal No.476-08 State through ANF v. Javed Baig (d) Criminal Appeal No.476/08 State through ANF v. Nisar Khan, are dismissed being not maintainable. (II) C.M. No.398-P/2012 in Criminal Appeal No.211 of 2008 is treated as a separate appeal and accordingly allowed to the effect that House No. 35-C Sahibzada Abdul Qayyum Road, Peshawar, forfeited, vide order of the Special Court is to be substituted with House No.35-C (1) Sahibzada Abdul Qayyum Road, Peshawar, and the property of Mst. Safia Rasool, House No.35, Sahibzada Abdul Qayyum Road, Peshawar, is released from all the encumbrances and charges imposed under the provisions of Prevention of Smuggling Act, 1977. HBT/231/P Appeal dismissed.