2011 SCMR 1527 (PLP)

Criminal Petition No. 386-L of 2011 TASSADUQ HUSSAIN JILLANI, J.

This petition tiled by the State is directed against the judgment dated 7-4-2011 vide which the learned High Court disposed of Criminal Appeal No. 219 of 2011 filed by Umer Hayat, convict, and Criminal Appeal No. 357 of 2011 filed by the State against the judgment dated 19-2-2011 passed by the learned Special Judge (vide main judgment dated 14-2-2000 learned Special Court having tried respondent Umer Hayat under section 9-C of the Control of Narcotic Substances Act, 1997, sentenced him to 14 years' RI and a fine, of Rs. 50,000 (F.I.R. No. 19 dated 22-7-1998 at Police Station Anti Narcotics Force, Lahore under sections 9/15 of Control of Narcotic Substances Act, 1997). The learned trial Court, however, did not confiscate the property bearing No. 76/H (commercial) DHA, Phase-I, LCCHS, Lahore, the forfeiture of which was sought by the prosecution. The learned High Court concurred with the learned trial Court on the ground as under:-- "Plot No. 76-H (Commercial) Phase-I LCCHS, Lahore, is not transferred in favour of the appellant Umer Hayat. This plot was originally allotted in favour of Wing Commander Abdul Ghafoor Tahir and now it is owned by Rashida Tahir wife of the original allottee. P.W.2 specifically stated that the plot has not so far been transferred in favour of the appellant Umer Hayat so the learned trial Court rightly 'refused to pass an' order for its confiscation especially when Wing Commander Abdul Ghafoor Tahir or Rashid Tahir were not party to the proceedings. The learned Special Prosecutor, ANF, has stated before us that the appellant does not press the prayer for confiscation of the other properties and accounts as the values of the same are negligible."

2. Learned counsel for the State seeks leave on the ground that the High Court has not correctly appreciated the import of section 39 of the Control of Narcotic Substances Act, 1997 which makes it obligatory on the Court to confiscate the property hold by a convict who is sentenced to more than three years imprisonment.

3. We have considered the submissions made, have gone through the impugned judgment and have considered the relevant law.

4. Section 39 of the Control of Narcotic Substances Act, 1997 which provides for forfeiture of assets in circumstances alluded to in the said provision, reads as follows:- "

39. Order for forfeiture of assets.

(1) Where the Special Court convicts an accused under section 13, or sentences him to . imprisonment for more than three years, the Director-General or an officer authorized by him may request the said Court by an application in writing along with a list of the assets of the convict or, as the case may be, his associates, relatives or any other person holding or possessing such assets on his behalf, for forfeiture thereof. (2) Where the Special Court is satisfied that any assets specified in the list referred to in subsection (1) were derived, generated or obtained in contravention of section 12 or are liable to be forfeited under section 19, it may order that such assets shall stand forfeited to the Federal Government: Provided that no order under this section shall be made without issuing a notice to show cause and providing a reasonable opportunity of being heard to the person being affected by such order: Provided further that if such person fails to tender any explanation or defaults in making appearance before the Special Court on any date appointed by it, the Special Court may proceed to record an order ex party on the basis of the evidence available before it. (3) Where any shares in a company are forfeited to the Federal Government under subsection (2), notwithstanding anything contained in the Companies Ordinance, 1984 (XLVII of 1984), or any other law for the time being in force or Articles of Association of the Company, such shares shall be registered in the name of the Federal Government."

5. A bare perusal of the afore-referred provision would indicate that the forfeiture is not automatic; that the trial Court has to be satisfied that the assets in question were derived or generated or obtained in contravention of section 12 of Control of Narcotic Substances Act, 1997 and that too not without providing an opportunity of hearing not only to the accused but also to the person who are "being affected by such order". In not confiscating the property, the learned trial Court was persuade by two factors, first; that the property in question was not in the name of the respondent, convict, second; the persons who in terms of the record, were owners, were not impleaded as party. Learned counsel for the State has not challenged the factual premise of the afore-referred findings and has not referred to any piece of evidence, which could persuade us to interfere with the findings rendered by the trial Court, which have been concurred by the learned High Court vide the impugned judgment. In the afore-referred circumstances, we do not find any merit in this petition, which is dismissed and leave refused. CRIMINAL PETITION NO. 376-L OF 2011

6. Inter alia contends that in directing confiscation of the petitioner's property bearing No. 25-C Khuda Bakhsh Colony, Lahore, the learned Courts below have concurrently not appreciated the import of section 39 of the Control of Narcotic Substances Act, 1997, inasmuch as the onus of proving bona fide purchase of the property in question was I squarely put on the petitioner, convict, without reference to the evidence on record.

7. Having heard learned counsel for the petitioner at some length, leave is granted inter alia to consider the issues raised. CRIMINAL MISCELLANEOUS NO. 180-L of 2011

8. Notice for a short date. M.H./S-36/SC Leave granted.