2023 PLP 174 (PTD)

MUHAMMAD IQBAL KALHORO, J.

Petitioner has questioned in this petition proceedings pending before Special Court No.II Karachi in terms of an application filed under section 31 of the Prevention of Smuggling Act, 1977 (PSA, 1977) by Anti-Narcotic Force (ANF) Karachi for forfeiture of properties/assets of petitioner and respondents 5 to 8 mentioned in schedule "A" therein in favour of Federal Government under section 32 of PSA, 1977 on the ground of being acquired from smuggling of narcotics.

2. The case agitated before us is confined only to a bungalow No.197-C, KDA Scheme, Karachi, which the petitioner claims to have purchased in good faith from respondent No.6 Pervez Hassan Haravi, a brother of respondent No.5 Agha Mehmood Harvi, the original owners and alleged to be involved in narcotics cases. In order to establish credentials of her case, she has pointed out that registration and mutation of the said house in her favour was stamped by this court in a compromise decree passed in a suit filed by her for this purpose. And that she has no relation with respondents 5 and 6, except that her sister was once married with respondent 6.

3. Her counsel in arguments while elaborating the context has stated that an FIR No.429/1978 under section 156(1)(8)(89) of the Customs Act, 1969 was registered at Karachi against 10 accused including respondent 5 on 30.05.1978. Only 3 accused got arrested, faced the trial and were acquitted on 27.4.2002, while rest of them including respondent 5 remained absconders and the case against them was kept on dormant file. He said that respondent 5 was not absconder but was in custody at Lahore in FIR No.20/1997 under sections 9 and 15 of Control of Narcotic Substances Act, 1997 at that time but ANF out of mala fide held back such information on purpose from the trial court at Karachi. He revealed that in the case arising of said FIR respondent 5 was initially convicted and his properties including the one in question were confiscated but ultimately the Honourable Supreme Court acquitted him on 19.10.2010 and ordered restoration of all properties to him. Nonetheless, since mutation of said house in favour of petitioner pursuant to its sale to her and compromise decree was not being allowed, she filed a C.P. No.D-619/2010 before this court and was successful in obtaining an order clearing off the property and permitting further transactions thereon.

4. However, learned counsel urged, in the year 2015 transaction on the said house was again stalled by KDA in response to an official communique by Regional Directorate ANF Karachi to Director Military Lands and Cantonment's Karachi, which she contested on merits but to no avail and that finally led to filing of impugned application under section 31 PSA, 1977 before the Special Court. Determined to safeguard her right over the property, she filed an application for contempt of court before the Honourable Supreme Court in the appeal acquitting responded 5 in FIR No.20/1997 at Lahore and restoring him his properties, which was decided on 19.04.2017 advising the petitioner to produce relevant documents of her ownership, etc. in the special court and the special court was directed to pass an appropriate order within one month. It was further said that instead of complying with the said order, learned special court proceeded to pass the impugned order dated 28.05.2019 framing three points for a decision to be made in the light of evidence of the parties. Learned counsel said that all the relevant questions respecting the property had already been decided by the Honourable Supreme Court in the appeal and this court in C.P.No.D-619/2010 in favour of the petitioner and thus the same cannot be reopened and made subject matter of any inquiry or proceedings before the Special Court. The impugned proceedings are time barred as FIR No.429/1978 was finally decided on 27.04.2002 and although the case against respondent No.5 was kept on dormant file but it was mainly failure of ANF to inform the trial court about his custody in Lahore in FIR No.20/1997.

5. Learned counsel further insisted that no adequate information giving rise to any reasonable suspicion about the property being acquired by smuggling of narcotics was laid before the Special Court to justify taking cognizance of the matter. The impugned order issuing notice to the petitioner is illegal, void ab-initio and not sustainable in law. He further emphasized that even otherwise the petitioner is not an associate or related to respondents Nos.5 and 6, the alleged drug dealers, and is a bona fide purchaser of the property. Therefore, the impugned proceedings are liable to be quashed. He in support of his contentions relied upon 2020 SCMR 300, PLD 1796 Lahore 580, 1997 SCMR 193, 2012 SCMR 167, PLD 2017 Sindh 140, PLD 2002 SC 572, 2002 SCMR 273, PLD 2006 Kar. 25, 2010 PCr.LJ 1980, PLD 2013 Karachi 190, 2020 SCMR 300 and 2016 PTD 2881.

6. In contra, learned Special Prosecutor ANF questioned maintainability of this petition and submitted the case involved factual controversy could only be decided after evidence of the parties. He next submitted that the trial was at the verge of conclusion as 2 out of 4 witnesses had already been examined and relied upon following case law in his arguments PLD 2000 Quetta (sic), PLD 2001 Peshawar 65, 2001 PCr.LJ 669, 2006 SCMR 512 and PLD 2000 Quetta 19.

7. Heard and perused the record including the case law relied at bar. It is not disputed that respondents 5 and 6 were the joint owners of the subject property and the petitioner's title over it is derived from them. And that against respondent 5 and others a case of smuggling of narcotics (FIR No.429/1978) was registered which was finally consigned to dormant file against him and others due to their absconsion, while 3 co-accused who faced the trial were acquitted. In that case allegedly from premises owned by respondent 5 a huge quantity of chars meant for export was seized. He was granted bail in the case but jumped it off eventually and never appeared to face the allegations. His eventual acquittal in FIR 20/79 at Lahore by the Honourable Supreme Court on 19.10.2010 is not likely to offset this fact and his status as a fugitive from law will continue to remain the same till his surrender to law. That position is not going to be dissipated by any efflux of time either. Therefore, an enquiry of a nature being undertaken by the special court into an issue flowing out of such a position cannot be allowed to get written off prematurely on a ground of delayed onset. Respondent 6, a brother and joint owner and the vendor, has a worse history as he stands convicted in a case of narcotics by the Crown Court of Isleworth U.K and that conviction is still running against him. Petitioner's association with him (respondent No.6) is an undeniable fact; she has remained his sister in law, and happened to be owner of the house in that time. She came into possession of the house only as a result of compromise in a suit filed by her against respondent 4 Attaullah who himself is an alleged associate of respondents 5 and 6 and is facing the impugned proceedings. In such context taking note of the matter and proceeding to enquire it for the purpose as above by Special Court does not seem to suffer from any illegality to warrant interference. No misapplication or mala fide in application of relevant law has been found either to let scuttle process of vetting of both factual and legal questions in the matter untimely in exercise of discretionary constitutional jurisdiction.

8. Earlier, equipped with all the same pleas pleaded here, the petitioner went to the Honourable Supreme Court impugning the proceedings by filing an application in a criminal appeal in which respondent 5 was acquitted and his properties inclusive of the one in hand were restored to him. But nothing on merits was looked into, no benefit of acquittal and restoration of properties or consent order passed by this court in C.P. No.D-619/2010 was even contemplated, rather the petitioner was advised to present her case on merits before the Special Court for an order which was to be passed by it within a month. Now the compliance has been made, albeit with some delay but for which there is nothing to blame specifically and individually either the prosecution or the Special Court, and the order dated 28.05.2019 has been passed whereby the Special Court realizing the controversy both being factual and legal has framed 3 points for resolving it. The parties have been invited to adduce evidence thereon, and out of 4 witnesses cited by the prosecution, 2 have already been examined. Interference at this stage by this court is prone to create more opacity than clarity in that the very question of petitioner being a bona fide purchaser of the house and not an associate of drug barons with connotations as above will remain suspended giving rise to more efforts by both the parties to settle it. Intervention is not warranted and legally sustainable as well because also the Honourable Supreme Court despite having knowledge of all these relevant facts and questions presented by the petitioner decided not to intervene and let the Special Court proceed to pass an appropriate order.

9. Another legal impediment in the way of petitioner to approach this court directly in constitutional jurisdiction for the relief is the provision of appeal in PSA, 1977. It is section 43 which deals with appeals and in categorical words provides for that any person aggrieved by an order of the Special Judge passed under sections 31, 32 and 34 may within thirty days thereof prefer an appeal before the Special Appellate Court whose decision thereon shall be final. No cogent reason to justify circumventing such remedy and directly approaching this court has been propounded by the petitioner. It does not need a reference to say that in presence of an adequate remedy available to an aggrieved person; a constitution petition for same relief would not be competent in ordinary course of things.

10. Having had stock of entire material discussed above, we have come to view this petition without any merits to validate indulgence under constitutional jurisdiction for the purpose as above. The petition therefore must fail and is accordingly dismissed; but we are sanguine that the trial court would expedite the matter and decide it sooner rather than later without being influenced by any of observations qua merits of the case herein above being tentative in nature. SA/A-8/Sindh Petition dismissed.