P L D 2006 Peshawar 171 (PLP)

HAMID FAROOQ DURRANI, J.

The petition in hand has been filed by Anti-Narcotics Force (ANF) through its regional Director against the judgment dated 31-3-2003 passed by the learned- Special Appellate Court under section 29 of the prevention of Smuggling Act, 1977 (Act XII of 1977).

2. The constitutional petition, though drafted in the form of appeal, in substance challenges the validity of impugned judgment on the grounds that the petitioner had successfully made out a case for forfeiture/confiscation of property mentioned in the information report provided to the learned Special Judge Customs, Taxation and Anti-Smuggling, N.-W.F.P., Peshawar (hereinafter referred to as the Special Judge) under section 21 of the Act ibid that the judgment of the learned appellate Court was against the available record and evidence. That the respondents could not prove any legal justification for acquisition of huge property by them, as such, the said property was rightfully ordered to be confiscated in favour of the State. That the case of petitioner/informer was based on documentary evidence which was disbelieved by the learned Appellate Court. The findings of learned Appellate Court, in the circumstances, were against the law and facts and were, therefore, liable to be set aside. 2-A. The facts relevant for the purposes of matter in hand are that on 9-10-2001 the petitioner informed the learned Special Judge that property acquired by one Ghulam Ghaus (deceased), who was the predecessor-in-?interest of respondents Nos. 1 to 5, was the outcome of narcotics smuggling. The said property, details whereof had been given in the information under section 31 of the Act ibid, was, therefore, liable to forfeiture in favour of the Federal Government. The Special Judge on receipt of the information issued notices to the respondents requiring them to show reasons for not forfeiting the assets mentioned therein in favour of the Government. The respondents appeared before the Special Court and upon filing the written reply were allowed to produce the evidence. On conclusion of the evidence pro and contra to the allegations, the learned Special Court passed an order on 30-8-2002 thereby declaring some of the assets liable to forfeiture. The reasons for forfeiture so ordered were shown in terms that the forfeited assets were acquired through income generated by smuggling. Pertinently, some of the immovable property mentioned in the notice under section 31 of the Act ibid situated in Mauza Sheikhulbandi was excluded from forfeiture as the connectivity of acquisition of the same through smuggling could not be proved.

3. Aggrieved therefrom the respondents Nos. 1 to 5 filed an appeal under section 43 of the Act ibid before the Special Appellate Court N.-W.F.P. Peshawar. Upon hearing, the learned Special Appellate Court allowed the appeal of respondents and the order/judgment of the Special Court was set aside. Resultantly, the properties earlier ordered to be forfeited were discharged in favour of the appellants.

4. Before recording our findings in the matter in hand we consider it appropriate to reproduce here some of the provisions of Prevention of Smuggling Act, 1977 because the same would be useful for the purpose of discussion hitherto. S.

29. Appeal.-(1) An appeal against an order made by a Special Judge under subsection (4) of section 14, section 15, section 17, subsection (3) of section 20, section 21 or subsection (2) of section 25 shall lie to the Special Appellate Court, within thirty days from the date of the order. (2) The Special Court on hearing the appeal may-- ??????????? (a) accept the appeal and set aside the order appealed against; or (b) dismiss the appeal; or (c) subject to the provisions of this Act, modify the order appealed against in such manner as it may think fit. (3) The provisions of the Limitation Act, 1908 (IX of 1908), shall apply to an appeal under subsection (1). S.

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.

5. A perusal of the judgment passed by the learned Special Appellate Court, while deciding the appeal, suggests that the learned Court while dealing with the matter in hand has taken great pains in discussing the entire evidence produced by the parties before the learned Special Court. The learned Appellate Court has canvassed all the factual aspects and has also returned its verdict, in the light of provisions contained in section 31 Prevention of Smuggling Act, 1977, regarding the legality of issuance of notice of forfeiture against the respondent/appellants. The findings of facts recorded by the learned Appellate Court are result of proper appreciation of evidence, which would not require interference by this Court in constitutional jurisdiction. It is to be added here that the provisions of section 43 of the Act as reproduced above attach finality to the decision of the Appellate Court. In the circumstances the constitutional jurisdiction of this Court with respect to reappraisal/re-appreciation of evidence is further narrowed down. Reliance is placed on the judgment reported in PLD 1973 SC

236. Alongside, the learned counsel for the petitioner has not succeeded in establishing that while passing the impugned judgment the learned appellate Court has travelled beyond its jurisdiction or that the said judgment was without lawful authority.

6. The averments by the petitioner as contained in the information filed before the learned Special Court, disclose the allegation that deceased Ghulam Ghaus was involved in the smuggling of Narcotics and from the said smuggling he had accumulated considerable property. In order to conceal the said ill-gotten assets huge amount was deposited in the accounts of respondents Nos. 1 and 2 (minors). We deem it useful to discuss the matter in particular reference to the definition of smuggling as provided in section 2(1)(F) of the Act. The same reads as follows:-- "2. (1)(F) `Smuggling' has the same meaning as clause (s) of section 2 of the Customs Act, 1969 (IV of 1969), but in Chapter II, relates only to the taking of goods out of Pakistan." As the said definition refers to the provisions of section 2(s) of the Customs Act, 1969, the re-production of the same would be' necessary, which is as follows:-- "Section 2(s) `Smuggle' means to bring into or take out of Pakistan, in breach of any prohibition or restriction for the time being in force, or evading payment of customs-duties or taxes leviable thereon: (i) gold bullion, silver bullion, platinum, palladium, radium, precious stones, antiques, currency, narcotics and narcotic and psychotropic substances; or (ii) manufactures of gold or silver or platinum or palladium or radium or precious stones, and any other goods notified by the Federal Government in the official Gazette, which, in each case, exceed (fifty thousand rupees) in value; or (iii) any goods by any route other than a route declared under section 9 or 10 or from any place other than a customs-station; and includes an attempt, abetment or connivance of so bringing in or taking out of such goods; and all cognate words and expressions shall be construed accordingly; (narcotics have been notified by the Federal Government for the purposes of section 2(ii) above)."

7. The record shows that the petitioner relied upon F.I.R. No.3 dated 4-8-1999 registered against deceased Ghulam Ghaus under section 9 C.N.S.A./13 of the Arms Ordinance while F.I.R. No.221 dated 5-3-1995 registered against the said person under Articles 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979. The said F.I.Rs were made basis of the allegations regarding accumulation of ill-gotten assets by deceased Ghulam Ghaus through smuggling of narcotics but the contents of said F.I.R. are absolutely silent regarding the act of smuggling being attributed of deceased Ghulam Ghaus. In the case reported through, the former F.I.R. recovery of huge quantity of narcotics including charas and opium was alleged to have been effected from a room in the house of the deceased whereas in the latter F.I.R. the recovery of 156 grams of heroin was made from the person of the said deceased when he was present in village Sheikhulbandi.

8. The preamble to the Act XII of 1977 provides that the said law was promulgated in order to provide for effective prevention of smuggling and for matters connected therewith. Section 31 thereof makes provision for notice to person holding property suspected to be acquired by smuggling. The allegations of the petitioner against the deceased Ghulam Ghaus, predecessor-in-interest of the respondents, while examined in juxtaposition to the preamble and forenoted provisions of the Act ibid would, therefore, suggest that the competency of notice of forfeiture against the respondents and proceedings ensuing therefrom were not free from question. It is noted in this regard that the alleged recovery of narcotics was made in settled area of the country and foreign origin of the incriminating material was yet to be proved. The fact of narcotics being taken out or brought into the country does not find mention throughout the record. Besides, the terms "dealing in narcotics" and "smuggling of narcotics" cannot be dubbed as interchangeable. It is to be noted that the deceased Ghulam Ghaus was murdered on 12-6-2001 and trials against him in the cases under the forenoted F.I.Rs. were abated.

9. In the light of above discussion we are of the firm view that the impugned judgment of learned Appellate Court whereby the findings of learned special Court were set aside, do not call for interference by this Court in constitutional jurisdiction.

10. Resultantly, the petition in hand fails and is accordingly dismissed. H.B.T./131/P?????????????????????????????????????????????????????????????????????????????????????? Petition dismisse