P L D 2013 Sindh 190 (PLP)

SADIQ HUSSAIN BHATTI, J.

Being aggrieved and dissatisfied by the order dated 22-5-2009 passed and pronounced by the learned Special Judge, Customs Taxation and Anti-Smuggling, Karachi in Special Case No.31 of 1995

As (State v. Anwar Kattak and others) whereby learned Special Judge was pleased to release the properties in question pending trial. Appellate, State/ANF through its Deputy Director (Law) has called in question the aforesaid impugned order dated 22-5-2009. Briefly the facts of the case are as under:-- The respondent No.1 Mst. Mehwish Sultana's mother namely Mrs. Rubi Adam had purchased a Flat in the Project of Palm Beach Homes constructed on Plot No.7/8, Block-2, KDA Scheme No.5, Clifton, Karachi. The above property was purchased by Mrs. Rubi Adam wife of Adam Khan Jokhio in the year 1993 from M/s Al-Ghazi, Associates (Pvt) Limited, Karachi. After payment of dues/balance to the Company, M/s Al-Ghazi, Associates (Pvt) Limited, Karachi, the flat in question was allotted in the name of Mrs. Rubi Adam and same was leased out in her name on 6-10-1996 vide Deed of Sublease. Subsequently, Mrs. Rubi Adam gifted the said flat/property to her real daughter Miss Mehwish Sultana, appellant No.1. She being the daughter of S.M. Aslam, the first husband of Mrs. Rubi Adam, through Registered Gift Deed dated 8-3-2000. The Court vide Notice under section 31 of the Prevention of Smuggling Act, 1977 dated 10-10-1996 imposed and restriction upon further sale, transfer on the flat in question on the allegation that the said property owned by one Anwar Khattak or his Associates who acquired the same through the income of narcotics smuggling. Learned counsel for the appellant has contended that the learned trial Judge has failed to understand and comprehend that the respondents have no locus standi to purchase the said Property Flat No.B-14, Palm Beach Homes, since the F.I.R. lodged against accused in the year 1985. He has further contended that learned trial Court did not entertain the notice which was issued under section 31 of the Prevention of Smuggling Act, 1977 for freezing of transactions between the Parties and also ignored the fact that the cases were pending against the Sub-Registrar. The learned counsel for the appellant has further contended that the impugned order is vague and passed in slipshod manner and nothing has been discussed about the findings of the Federal Tax Ombudsman. The Parties in question wanted to conceal the transactions and did not want to make known to other which showed the mala fide intention and ulterior motive. In the end, he submitted that the order dated 22-5-2009 is bad in law and is liable to be set aside. On the other hand, learned counsel for the respondents submitted that the property in question was purchased/booked from M/s. Al-Ghazi Associates (Pvt) Limited, Karachi in the year 1993 by Mrs. Rubi Adam real mother of respondent No.1 for Rs.9,50,000/- and later gifted to her daughter from 1st husband, the respondent No.1 through Registered Gift Deed dated 8-3-2000 as Mrs. Rubi Adam was title owner in law and lawfully holding the property in question (suit property). Section 31 of the Prevention of Smuggling Act, 1977 was imposed on 10-10-1996 much later than the transaction already taken place and the Parties had no knowledge about such notice. Having heard the learned counsel for the respective Parties and perused the record. The record shows that property in question was booked and purchased by the Mrs. Rubi Adam, the mother of the respondent No.1 from M/s. Al-Ghazi Associates (Pvt.) Limited for Rs.950,000/- in the year 1993 and later on gifted the same to the respondent No.

1. Record further reveals that the aforesaid property was registered on 6-10-1996 vide deed of sub-lease, whereas notice under Section 31 of the Prevention of Smuggling Act, 1977, imposing restriction over the said property was issued by the Court/ Respondent No.2 on 10-10-1996. In fact the said notice was issued by the Court upon Muhammad Anwar Khattak 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 No.1. Learned Counsel for respondent No.1 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 No.1, the holder of 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 No.1 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 No.1 further relied upon the case-law PLD 2006 Kar. 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 Mrs. Rubi Adam mother of the respondent No.

1. Since he was registered title owner and such notice is imputed in law to one and all owing to the registration. That no such notice was served upon Mrs. Rubi Adam mother of respondent No.1 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 business/ links between the respondent No.1 her mother and Muhammad Anwar Khattak and his Associates. The prosecution has not been able to establish through arguments or record business deals with Al-Ghazi Associates (Pvt.) Limited and Muhammad Anwar Khattak. Although F.I.R. against Muhammad Anwar Khattak was lodged in the year 1985, hence prosecution had sufficient time to collect tangible evidence to connect the respondent No.1 and her mother and Al-Ghazi Associates with accused Muhammad Anwar Khattak. The prosecution has not been able to produce any evidence that these ladies were involved in drug smuggling business and that they purchased the said property through ill-gotten money or any other illegal source although such allegations have been levelled but without any material evidence. Therefore, it cannot be supposed that that the titleholder Mrs. Rubi Adam had no sufficient source to purchase the property in question. Since Mrs. Rubi Adam mother of the respondent No.1 was the titleholder of the property she had the legal right to gift the said property to her real daughter the respondent No.1 in the absence of Notice under Section 31 of the Prevention of Smuggling Act, 1977. 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-91/Sindh Appeal dismissed.