2008 PLP 1011 (SCMR)

The petitioner seeks leave to appeal against judgment dated March 28, 2005 passed by the learned High Court, Lahore setting aside the order, dated February 16, 2004 whereby an application from the Director-General, A.N.F. seeking forfeiture of property of the convict-respondent initiated within the contemplation of provisions of section 39(1) of the Control of Narcotic Substances Act, 1997 (hereinafter referred as C.N.S.A.) has been dismissed.

2. Precisely stated facts of the case are that the respondent' confessed guilty under section 9(b) of the C.N.S.A. for keeping in his possession 1 Kg. of heroin. A case in this respect was registered vide F.I.R. No.25 of Police Station A.N.F., Lahore on 5th August, 1998 falling within the meaning of section 9(b) of C.N.S.A. As a result whereof trial Court convicted him of sentence of 3 years and 6 months. Benefit under section 382-B, Cr.P.C. was also extended to him. After the conviction of the respondent, an application was moved on behalf of the prosecution within the contemplation of sections 37, 39 read with section 19 of the C.N.S.A. seeking freezing of the property and their forfeiture in favour of the Federal Government. The respondent contended the proceedings, inter alia, objecting the jurisdiction of the trial Court to entertain the same but the objection was overruled vide judgment dated February 16, 2004 and this order was challenged by respondent No.4 in the High Court. The learned High Court set aside the order holding that application filed by the prosecution through its Director-General was not maintainable because the trial Court itself should have passed the order for freezing of property at the time of conclusion of the trial.

3. We have heard the learned counsel for both sides and have examined the impugned judgments carefully.

4. Leave to appeal is granted, inter alia, to examine as to whether the application filed by the Director-General in terms of sections 37, 39 read with section 19 of the C.N.S.A. was not competent and the learned trial Court had the jurisdiction to entertain the same after the conviction of the respondent because as far as the trial of the co-accused is concerned that was still pending for final decision before the same Court against his co-accused. Appeal arising out of this petition be prepared on the same record with liberty to the parties to file additional documents, if need be. As a short point is involved in this case, therefore, the office is directed to fix the appeal in the 1st week of October, 2005. The respondent is directed to attend the Court personally at the time of hearing of the appeal. N.H.Q./S-145/SC Leave granted.