' IFTIKHAR MUHAMMAD CHAUDHRY, C.J.--- Above noted appeals are by leave of the Court against the judgment of the Peshawar High Court, Peshawar dated 14th December, 2000 passed in Writ Petitions Nos.1275 and 1276 of 1996. Whereas a petition for leave to appeal has also been filed by Noor Alam, challenging the same judgment. As common questions of facts and law are involved, therefore, we intend to decide the appeals and petition by instant common judgment.
2. Precisely stating facts of the case are that on 27th April, 1997, the Director-General, Anti-Narcotics Task Force, Peshawar laid an information in terms of section 31 of the Prevention of Smuggling Act, 1977 (Act XII of 1977) (hereinafter referred to as "the Act, 1977"), along with supporting documents before the Special Judge (Central) Customs, Taxation and Anti-Smuggling, N.-W.F.P., Peshawar, to the effect that Haji Muhammad Ayub Khan Afridi (hereinafter referred to as "the appellant") is holding certain immovable properties in his own name and in the names of his relatives/associates, mentioned therein, which are reasonably suspected to be acquired through smuggling. Learned Special Judge, on having gone through the material placed before him, formed opinion and proceeded against the appellant by issuing him notice dated 15th May, 1995, endorsing/sending/ copy of the same in his relatives/associates, directing them to appear and explain as to why properties mentioned in the notice, suspected to be acquired through smuggling be not forfeited to the Federal Government. Relevant para. From the order is reproduced hereinbelow:-- "A copy of this order along with a notice, under section 31 of the Prevention of Smuggling Act, 1977 be sent to Haji Muhammad Ayub Khan Afridi and to each of his relatives/associates, mentioned above by registered post as well as through Political Agent Khyber Agency, for their service. It is directed that a copy of the notice shall also be affixed on the main entrance of the buildup properties mentioned at Serial Nos.1 to 4 below.
' It is also directed that notices shall also be sent to the Managers for publication in the dailies `Mashriq' and 'Frontier Post', Peshawar."
' In compliance with the above order, the process-server approached them and returned the process with the endorsement that "Haji Muhammad Ayub Khan Afridi was not present at his home; his brother Haji Shah Zamir Afridi and other relatives Hunar Khan and Babu Khan, etc. Declined to accept the notice; the contents of the same were read over to them; original notice was affixed on the doors of the addresses". Similarly, notices by registered post were also sent as per the postal receipts available on record. Simultaneously, publication of the complete notice along with the names of the relatives/associates, to whom the same was communicated, was also made in dailies `Mashriq' on 17th May, 1995 and in 'Frontier Post' on 18th May, .1995. But neither the appellant nor any of his relative/associate opted to appear and contest the notice, except Noor Alam (petitioner), grandson of appellant, who appeared before the Special Judge on 1st June, 1995 and obtained a copy of joint notice, issued to him and remaining persons. Thereafter, he instituted Writ Petition No,627 of 1995 before the Peshawar High Court, Peshawar, challenging the issuance of the notice and succeeded in obtaining stay order, dated 19th June, 1995. Perhaps due to this reason, no progress was made by the learned Special Judge. However, the stay order, dated 19th June, 1995 was vacated on 11th July, 1995 and thereafter on 12th July, 1995, learned Special Judge, in respect of nonappearance of appellant, observed as follows:--- "(4) A careful perusal of the "information" supported by various documents consisting of registration deeds, Court decrees and other Revenue Record, involvement and conviction of Haji Muhammad Ayub Afridi by Courts in various cases relating to smuggling/dealing in narcotics, inclusive of reports by the agencies concerned regarding his absconsion in Illaqa Ghair i,e, Terrah, indicates no justification for conducting further proceedings against Haji Muhammad Ayub Afridi and his other relatives/associates which cannot produce the desired result, but a futile exercise.
There appears no possibility of their appearance in the near future. He is also wanted for trial by foreign Courts especially USA in connection with export of huge narcotics."
3. Later on, appellant and his relatives/associates filed two separate Appeals bearing Nos.270 and
271. Of 1995, before the Appellate Court, under the Act of 1997. Both the appeals were dismissed vide judgment, dated 30th October, 1996.
4. It may be noted that during the pendency of appeals filed by the appellant and his relatives/associates, an application was filed by the Special Public Prosecutor, Anti-Narcotics Forces, on which learned Special Judge, in exercise of powers under section 39 of the Act, 1977, passed an order, dated 25th September, 1995, directing the occupants of the properties, which were to be forfeited in favor of the Federal Government, to surrender/deliver their possession within 30 days, failing which directions were made for taking over possession of the properties in terms of subsections (2) to (5) of section 39 of the Act, 1977. Against this order, appellant alone preferred Appeal No,1038 of 1995, which was dismissed on 23rd October, 1995 and Civil Petition No,579 of 1995, filed by him against this order before this Court, was also disposed of vide order, dated 7th November, 1995.
5. Feeling aggrieved from the orders, dated 12th July, 1995 and 30th October, 1996, appellant and his relatives/associates instituted two Writ Petitions Nos.1275 and 1276 of 1996, respectively. Both the writ petitions along with the petitions filed by Noor Alam bearing No,627 of 1995, were dismissed by means of impugned judgments. Hence these appeals by leave of the Court and petition for leave to appeal.
6. Leave to appeal was granted, inter alia, to examine the following questions:-
(i) There are no reasons on which the notice issued under section 31 of the Prevention of Smuggling Act, 1977 is based and what is the legal implication if no reasons are stated in the said notice.
(ii) The notice under section 42 of the Prevention of Smuggling Act, 1977 was not served as required under the law.
(iii) The petitioners were not notified the date on which effective proceedings were conducted against them.
(iv) That the provisions of section 32(1) of the Act (ibid) have not been complied with.
7. Learned counsel contended that:--
(a) Appellants and petitioner have been condemned unheard as no notice was served upon them.
(b) The relatives/associates of the appellant were required to be served with the notice separately, after recording of the evidence, if it has been proved that properties being forfeited, do vest in them in their own right, as per the provisions of section 32(1) of the Act.
(c) The mode adopted by the Special Judge for effecting service of notice upon the appellant, was unwarranted under the law, as he was not found at his home. When the process-server failed to serve notice on him, the Court should have tried to search him and thereafter may have ordered affixation of notice at his home, as well as by making publication in the newspapers.
' Reliance in this behalf was placed by him on Ahmed Khan v. Muhammad Qasim 2002 SCM R 664.
8. Learned counsel appearing for Anti-Narcotics Force and learned Deputy Attorney-General of Pakistan stated that the notices were prepared and served in accordance with law as the appellant declined to accept the notice, therefore, simultaneously, they were served by affixation of the notice at the door of the house, despite issuance of publication in dailies 'Frontier Post' and `Mashriq' in terms of section 42 of the Act, 1977.
9. It may be noted that section 42 of the Act, 1977 has allowed mode of service of notice by means of registered post to the persons on whom it is required to be served or, if such service is not possible, by affixing it on a conspicuous place or part of the premises of such person where he last resided or carried on business or personally worked for gain, or by any other mode as the Special Judge or the Special Appellate Court may direct. In exercise of powers conferred by this section the Special Judge enjoys powers to adopt the methods specified therein, separately or collectively and also to follow any other mode as is directed by him for effecting service. There is no bar upon the Special Judge for effecting service upon the person/persons, to whom notices have been given, calling upon him/them to show cause as to why the whole or any part of such property acquired by him or them, belong to him or in the name of any of his relatives or associates, which is reasonably suspected to be acquired by smuggling, be not forfeited. Such powers are very familiar in the judicial system prevailing in this country, as there are some other laws as well like Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997. Under section 9(3) of this Act, Banking Court was authorized to serve plaint on the defendant through the bailiff or process-server of the Court by registered post acknowledgement due by courier and by publication in one English language and one Urdu language daily newspapers and service duly effected in any one of the aforesaid modes shall be deemed to be valid service for the purpose of this Act. Section 42 of the Act, 1977 seems to be more comprehensive than the laws referred to hereinbefore as it gives a discretion as well to the Special Judge to adopt any other mode of service, other than notified therein. The legislature, to expand the scope of exercising discretion, instead of using the word "and" has used the word "or". The word "or" has been employed which authorizes the Court to adopt alternatively any of the modes specified therein, simultaneously, because with reference to context at times, word "or" can also be used conjunctively. In Words and Phrases, Permanent Edition, Vol.30 (page 55), the word "or" has been described as "OR" is a conjunction, disjunctive and correlative, used to connect co-ordinate words, phrases or clauses, i,e, expressions having the same grammatical construction. Similarly reference can also be made to Shri Govindlalji v. State of Rajasthan AIR 1963 SC 1638 and C.E. Gibban v. Pakistan PLD 1957 (W.P.) Kar.
956. In the last mentioned judgment, it has been observed word "or" has, prima facie, an alternative significance but not that it never means 'and'.
10. Thus, it is held that Special Judge exercised all options available to him for effecting service upon the appellant and his relatives/ associates. Service of notice upon the relatives/associates of the appellants had not to be effected after recording of evidence in respect of a person against whom information has been laid of holding property which is reasonably suspected to be acquired by smuggling, in view of the provisions of section 31(3) of Act, 1977, which provides that where a notice under subsection (1) issued to any person specifies any property as being held on his behalf by any of his relatives or associates, a copy of the notice shall also be served upon such relative or associate. Scheme of law under section 31(1) and (3) abundantly makes it clear that the relatives/associates of such person have to be joined in the proceedings simultaneously.
11. Learned counsel for appellant(s) while relying upon the case of Ahmed Khan (ibid) contended that as according to the report of process-server, appellant was not present at his home, therefore, before affixing the notice at his home, or making publication in newspapers, serious steps should have been taken to effect the personal service upon him. In our opinion, the authority relied upon by the learned counsel was not helpful to him because, as it has been discussed herinabove, the Special Judge had discretion to adopt any of the modes mentioned in section 42 of the Act, 1977 or follow all the modes, simultaneously, besides effecting service by any other mode mentioned therein. The wisdom behind is that the person to whom notice had been issued must be informed by adopting more than one means of service. This is not only for the person who has acquired the property by smuggling but relatives/associates as well, because generally in such-like cases, the property is transferred by such persons to their relatives or associates, with a view to save themselves from criminal or civil liability, in future.
12. It is equally important to note that appellant and others, had not denied that they were living at the addresses on which the notices were served upon them. In this behalf report of the process- server indicates that he succeeded in establishing contact with all of them at one place, although appellant was not present at his home but remaining persons particularly Haji Shah Zamir declined to accept the notice, therefore, the contents of the same were read over to them and original notice was fixed on the door. In this manner, denial to accept the notice by him tantamounts to acquiring the knowledge about the proceedings and affixation of original notice at the door of their home would be deemed to be service upon all of them, including the appellant, because it was nobody's case whether affixation took place or not. Likewise, publications appeared in both the newspapers and the service in registered cover, sent to them including appellant by post, would be deemed to be a valid service.
13. It may also be noted that under section 27 of the General Clauses Act, 1897 the service by post is deemed to be effected properly, unless contrary is proved. In this behalf, the appellant categorically has never pleaded anywhere that the service by post was also not effected, therefore, following the law laid down in the case of Amir Din v. Muhammad Siddique 1982 SCM R 354, the service would be deemed valid for all intents and purposes. This aspect of the case can also be examined from another angle namely petitioner Noor Alam challenged the action of issuance of notice in pursuance of order, dated 15th May, 1995 by the Special Judge before the High Court, as record reveals that he is grandson of appellant and they were living in the same house under one roof i,e, house, as per the report of process-server, which has been endorsed by the Political Agent, Khyber Agency, coupled with the fact that remaining appellants had not pleaded before any of the three forums that they are not residents of the house, where the process-server reached for effecting service as throughout their case had been that they were not duly served, after the issuance of the notice by the Special Judge, on receipt of information. Thus, the argument being devoid of force merits no consideration.
14. Learned counsel for appellant vehemently contended that in terms of section 32(1) of the Act, 1977, relatives/associates of the appellant were entitled for a separate notice, after recording of evidence, to provide them reasonable opportunity of being heard.
15. This argument is devoid of force. Section 32(1) of the Act, 1977 conceives a situation where a person is holding- property which is reasonably suspected to be acquired by the smuggling and his relatives/associates, holding the property on his behalf, therefore, they are also to be joined in the proceedings. Provisions of section 32(1) of the Act, 1977 are to be read along with section 31(3) of the Act, 1977. Admittedly, contents of the notice indicate that the copies of the same were also endorsed to them and one of them Noor Alam had filed writ petition before the High Court, challenging the same. Therefore, we are of the opinion that as the proceedings were initiated on the basis of information received by the Special Judge, passed on to him on 15th May, 1995, on having gone through the evidence produced before him to initiate action against the appellant. As the list of the properties produced before the Court contains the names of some of the respondents, therefore, they were bound to contest the notice if they were holding the properties in their own right and once on the basis of evidence produced before the Court, notices have been issued, simultaneously to such persons, who have acquired the property by smuggling and his relatives/associates on whose behalf the property exists, though not holding that in their own rights but as retainer on behalf of the person, to whom notice has been issued under section 31(1) of the Act, 1977, they were bound to offer explanation about the forfeiture of the property by the Federal Government on receipt of notice. Surprisingly, in instant case, no one had appeared for the reasons best known to them, despite notice served upon them, except one Noor Alam, who instead of filing reply to notice, challenged the same by filing writ petition. Ultimately, when the matter had been decided against them on 12th July, 1997 they filed an appeal within 30 days, as envisaged under the law, which would mean that they had a notice about the proceedings against them, otherwise, there was no event available to them to file appeal within 30 days, if at all they had not been served. In fact, the properties vest in the name of appellant. This fact can be substantiated by making reference to the order, dated 25th September, 1995 passed by the Special Judge on the application under section 39 of the Act, 1977. Although this order was against all the appellants but they did not bother to challenge the same, except appellant before the appellate forum, which has dismissed his appeal on 23rd October, 1995 and against this order a Civil Petition for leave to appeal was also disposed of by this Court on 7th November, 1995. It indicates that as far as the other appellants are concerned, they had no vested right, otherwise, they would have jointly filed appeal before the Special Judge along with appellant.
16. On merits, learned counsel contended that there is no evidence available on record to substantiate the accusation of acquiring the property by smuggling.
17. In this behalf it may be noted that a perusal of the orders dated 15th May, 1995, 12th July, 1995 and 14th December, 2000, indicates that the conclusion was drawn against the appellant on the basis of the material placed before the Courts. If there is some technical error in conducting the proceedings or recording of evidence, etc., it would not be fatal in view of the fact that sufficient material is available on record to hold that the property was acquired by appellant in his own name as well as in the names of other relatives/associates by smuggling, to whom notices were also issued and as all the forums below, on having taken into consideration the material on record have expressed their opinion against the appellants, therefore, no interference in such concurrent findings of fact is called for.
18. No other point was argued by the learned counsel. Thus, for the foregoing reasons, both the appeals and the petition are dismissed.