1. Common questions of law are involved in all the above appeals, therefore, they have been heard together and are disposed of by this single consolidated judgment.
2. 2.The relevant facts are that Inspector Assets, A.N.F. Karachi, laid information before the learned Special Judge, Anti-Smuggling Sindh, at Karachi, on 3-2-1999, stating therein that a thorough enquiry as required by law about the source of income and assets acquired through drug money by the Zaki Pasha and his family members, associates and relatives was conducted.
3. 3.During the course of enquiry, it was found that Zaki Pasha and Parvez Amir Ali, were involved in the smuggling of narcotics, over a period of time by which they had acquired huge properties.
4. These properties were not related to any legitimate known source of income of the above persons and Tariq Irshad. It was further stated that the properties were acquired through income of narcotics and were liable to be forfeited to the Federal Government. The lists of the suspected assets/properties were also supplied.
5. 4.It was submitted that the properties/assets shown in the list were liable to be declared to be the properties acquired through smuggling and were liable to be forfeited in favour of the Federal Government, under Section 32 of the Prevention of Smuggling Act, 1977.
6. 5.On receiving the above information, the learned Special Judge, Anti-Smuggling Karachi, passed the following common order.
7. "(1) Zaki Pasha son of late Amir Ali.
8. (2)Parvez Amir Ali son of late Amir Ali.
9. (3)Tariq Irshad son of Hafiz Irshad Ellahi.
10. Under Section 31 of Prevention of Smuggling Act, 1977.
11. Order
12. Perused the contents of application, para. 3 whereof speaks/ relates to the allegations saying that during investigation by A.N.F. Zaki Pasha the Respondent No, 1 has been found involved in smuggling of narcotics, over a period of time and has acquired property through that income which (property) he is having either in his own name or in the names, of his relatives the respondents Nos, 2 and 3.
13. Keeping in view the allegation and the material produced by the learned Special Prosecutor I consider it proper to issue notice to all the respondents providing them with an opportunity to file preliminary objections, if any, to the application made before this Court. Let notice be sent to them.
14. Learned Special Prosecutor has already supplied four other sets of the copies of the documents which are to be enclosed with the notice. Matter put off to 1-3-1999 for service and preliminary objections from the respondents. Till further orders the property shown in the list not to be transferred in anyway."
15. 6.It was further informed to the learned Special Judge that Zaki Pasha and Parvez Amir Ali were involved in smuggling, who were tried and convicted in Canada. The appellant in Special Criminal Appeal No, 8 of 2004, Zaki Pasha and the appellant in Special Criminal Appeal No, 6 of 2004, Tariq Irshad appeared before the learned Special Judge. The appellant Tariq Irshad filed preliminary objections contending that he is a successful businessman and has sufficient sources to purchase Plot No, 159-A. He contended that he was financially capable of purchasing the property from his known source of income and has not acquired the property from income of smuggling narcotics as an associate of Zaki Pasha".
16. 7.The learned Special Judge, then held inquiry into the complaint. The complainant Inspector Assets, namely, Qadir Iftikhar had left country and it was not possible to procure his attendance before the Court, therefore, affidavit-in-evidence of Manzoor Ali Rana, Assistant Director, A.N.F. was filed. He reiterated the facts contained in the complaint filed by Qadir Iftikhar Khan. Prosecution witness was subjected to cross-examination and thereafter affidavit-in-evidence was filed by appellant Tariq Irshad only. He produced documents to substantiate his contention that he was financially capable of purchasing the property. Accused Pervez Pasha (Amir Ali) never appeared before the trial Court.
17. 8.The learned trial Court examined the entire material placed on record and came to the conclusion that the properties listed at Serial Nos, 2, 3 and 4 were not proved by the prosecution to have been acquired by income derived through smuggling of narcotics, but there was strong documentary evidence to prove that the property being Plot No, 159-A, Block-3, P.E.C.H.S. Karachi, measuring 200 sq. yards with construction thereon was acquired through money earned by way of smuggling of narcotics. The learned Judge, therefore, declared accordingly, and forfeited the same to the Federal Government, with further declaration and that it shall vest in the Government free from all encumbrances as provided in Section 32(1) and (3) of the Anti-Smuggling Act, 1977.
18. 9.Being aggrieved with the above order, the appellants Tariq Irshad and Zaki Pasha have preferred appeals praying for setting aside the forfeiture order, while the State has also preferred appeal praying that the order relieving the three properties may be set aside and these properties may also be directed to be forfeited.
19. 10.I have heard the learned Advocates for the parties. Mrs. Ismat Mehdi, learned counsel for appellant Tariq Irshad and Mr. Sohail Muzaffar learned counsel for appellants Zaki Pasha and Pervez Amir Ali, have contended that the entire proceedings are illegal being violative of the provisions contained in Section 31 of the Prevention of Smuggling Act, 1977. They have submitted that the notice issued under Section 31 of the Prevention of Smuggling Act, 1977, is totally bald. It does not contain details of the properties and has been issued in violation of the provisions contained in the proviso to Section 31 of the Prevention of Smuggling Act, 1977. In support of their contention, that such proceedings are violative of the mandatory provisions of law, and illegal, they have placed reliance on the judgment of learned Single Judge of this Court exercising jurisdiction as Special Appellate Court, in Special Criminal Appeal No, 32 of 1996, Messrs Adnan Enterprises v.
20. Anti-Narcotics Force.
21. 11.Mr. S. Mehmood Alam Rizvi, learned Special Prosecutor, contended that the proceedings were legal and in accordance with law. However, he was not able to deny that in the case cited above, the notice issued under Section 31 of the Anti-Smuggling Act, 1977, in the similar terms, as in this case, was held to be violative of the law.
22. 12.I have carefully considered the contentions and have perused the relevant provisions contained in Sections 30, 31 and 32 of Anti-Smuggling Act, 1977, which read as follows: "30. Property acquired by smugglin not to be held.--(1) It shall not be lawful for any person to hold, either in his own name or in the name of any relative or associate, any property acquired by smuggling. (2) Any such property held, in contravention of the provisions of subsection (1) shall be liable to be forfeited to the Federal Government in the manner hereinafter provided.
31. Notice to person holding property suspected to be acquired by smuggling.--(1) Whenever a Special Judge receives information that within the limits of his jurisdiction any person, either in his own name or in the name of any relative or associate, is holding property which is reasonably suspected to be acquired by smuggling, the Special Judge may issue to such person a notice calling upon him to show cause, within such time as may be specified in the notice, which shall not be less than thirty days, why the whole or any part of such property should not be declared to be property acquired by smuggling and to be forfeited to the Federal Government: Provided that no such notice shall be issued unless, having regard to the value of his assets, his known source of income, his style of living, his previous involvement in smuggling or conviction under any law relating to the prevention of smuggling and other similar factors, the Special Judge has reason to believe (which reason he shall record in writing) that there is sufficient ground for proceeding against such person.
23. (2)A notice issued under sub-section (1) shall, among other things, require such person to indicate the sources of his income, the income and assets out of which, or by means of which, he has acquired such property, the evidence he relies upon and other relevant information and particulars.
24. (3)Where a notice under sub-section (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.
32. Order of Special Judge.--(1) The Special. Judge may, after considering the explanation, if any, to the notice issued under Section 31 and the evidence recorded or produced before him, and after giving the relative or associate of such person, in case a copy of the notice has also been served on him, a reasonable opportunity of being heard, by an order, record a finding whether the property to which the notice relates is property acquired by smuggling.
25. (2)Where the Special Judge is satisfied that any of the properties mentioned in the notice issued under Section 31 are properties acquired by smuggling but he is not able to specifically identify such property, then, it shall be lawful for him to specify the properties which, to the best of his judgment, are properties acquired by smuggling and to record a finding accordingly under sub- section (1).
26. (3)Where a Special Judge records the finding under sub-section (1) that any property is property acquired by smuggling, he shall declare that such property shall, subject to the provisions of this Chapter, stand forfeited to the Federal Government and vest in that Government free from all encumbrances.
27. (4)Where an order of forfeiture of property passed under subsection (3) is in respect of any share in a company registered under the Companies Act, 1913 (VII of 1913) then, the company shall, notwithstanding anything contained in that Act or its memorandum for articles of association, forthwith register the Federal Government as transferee of such shares."
13. The provisions contained in Section . 31 above, came for consideration in the case of Adnan Enterprises. It was observed in the above case that notice under Section 31 of the said Act, issued by the learned Special Judge was illegal, as it did not contain any reasons as contemplated under Section 31 of the Act. After setting aside of the notice, the learned Special Judge issued another notice under Section 31 of the Act. The illegality of the second notice was also impugned on the ground that the jurisdiction to proceed under Section 31, is dependant on the conditions specified in the proviso, to Section 31 of the Act. It was contended that the proviso to Section 31 requires that before issuance of a notice the learned Special Judge must have reason to believe, (which reason he shall record in writing) that there is sufficient ground for proceeding against such person. Thus, there should be a preliminary inquiry and thereafter, the learned Special Judge shall record reasons for such belief and then only; shall proceed to issue the notice under Section 31. It was further contended that the proviso to Section 31 of the Act, is mandatory as the wording of the same is couched in negative. It was also contended that the non-compliance with the requirements of proviso is fatal and invalidates the notice itself. Reliance was placed on the judgment of Honourable Supreme Court, in the case of Atta Muhammad Qureshi v. Settlement Commissioner, Lahore Division, PLD 1971 SC 61, wherein it was held as follows:-- "It is well-settled that the neglect of the plain requirements of a statutory enactment, which prescribes how something is to be done, will invalidate the thing being done in some other manner if the enactment is absolute but not if it is merely directory. The real question which thus, arises for consideration is when an enactment is to be considered as absolute and when as merely directory? It is not possible to lay down a general rule of universal application in this behalf, but the law which is suggested by reported authorities in this connection is the affirmative or negative character of the language in which the provision is couched. If it is negative, that is to say, if the statute enacts that certain action shall be taken in a certain manner and in no other manner, it has been held that the requirements are absolute and that neglect to attend them will invalidate the whole procedure.
28. If, on the other hand, the language is affirmative, it may be considered as a directory provision.
14. The learned Single Judge of this Court thereafter examined the notice impugned in the said case, which contained the tentative finding to the effect that and whereas these properties are suspected to have been acquired by smuggling". It was observed that, "this assertion does not contain any reason". It was held that, the proviso to Section 31 requires that no such notice shall be issued unless the Special Judge has reason to believe that there is sufficient ground to proceed against such person, which reasons he shall record in writing. The grounds for proceeding against the appellant were not recorded with reasons and therefore, the notice was issued in disregard of mandatory provisions of law and without application of judicial mind". The then Standing Counsel had not supported the impugned notice. The order passed by the learned Special Judge was set aside and at the request of learned Standing Counsel, the matter was remanded for fresh proceedings in accordance with law.
29. 15.After a careful consideration of the provisions contained in Sections 30, 31 and 32 of the Anti- Smuggling Act, 1977, I am persuaded to agree with the view held by the learned Single Judge of this Court, in the case of Adnan Enterprises (supra). It is salutary principle of law that the things should be done as they are required to be done or not at all. I would like to emphasise that while dealing with the laws empowering to deprive a person of life, liberty and property, the mandatory requirements of law must be strictly adhered to, for the reason that such action is to be taken keeping in view, that, under Article 9 of the Constitution, no person shall be deprived of life or liberty save in accordance with law, and likewise, under Article 24 of the Constitution no person shall 'be deprived of his property save in accordance with law.
30. 16.Chapter IV of the Prevention of Smuggling Act, 1977, contains the provisions for forfeiture of property. It is provided in sub-section (1) of Section 30, that it shall not be lawful for any person to hold, either in his own name or in the name of any relative or associate, or any property acquired by smuggling. Under sub-section (2), any such property held in contravention of the provisions of sub-section (1) shall be liable to be forfeited to the Federal Government, in the manner hereinafter provided. The expression, in the manner hereinafter provided" indicates the intention of the Legislature that the order of forfeiture of property is to be made in the manner provided in succeeding sections. It is also indicative of the fact that, if, it is not in the manner provided in law, the order of forfeiture shall not be valid. It is provided in sub-section (1) of Section 31 that whenever a Special Judge receives' information about holding of a property, which is reasonably suspected to be acquired by smuggling, he may issue to such person a notice calling upon him to show cause, as to why whole or any part of such property should not be declared to be property acquired by smuggling and to be forfeited to the Federal Government. It is to be noted here that, there should be an information before the Special Judge, not only that a property is suspected to be acquired by smuggling but it should be reasonable suspected' be acquired by smuggling. It is trite law of the interpretation of statute that every word used by Legislature is to be assigned a meaning. When the Legislature, has deemed fit to prefix the word suspect with expression "reasonably' then it is incumbent on the Special Judge to ensure that the suspicion is not merely subjective but it is objective and the suspicion is substantiated with the material which appears to be reasonable. The word reasonably cannot be assigned any hard and fast definition if universal application and it will differ from case to case and circumstances to circumstances. However, in every case the suspicion should be such which appeals to reason. This intention of the Legislature is further manifested with the proviso which is couched in negative terms. It is provided that no such notice shall be issued, unless, having regard to the value of his assets, his known source of income, his style of living, his previous involvement in smuggling or conviction under any law relating to prevention of smuggling and other similar factors, the Special Judge has reason to believe (which reason he shall record in writing) that there is sufficient ground for proceeding against such person. This provision has not left any scope, for any interpretation or imagination.
31. The law is very clear and unambiguous which has placed a restriction on the Special Judge. It is very clear that the Special Judge is not supposed to issue notice under Section 31 on mere information laid before him. It is evident that no notice is to be issued under Section 31(1) in a mechanical manner without application of judicial mind. It is a mandatory requirement of law that the Special Judge must receive information containing material to show that it is reasonably suspected to be acquired by smuggling. If the information does not contain material to show that any person is holding property, which is reasonably suspected to be acquired by smuggling, the Special Judge shall not issue any notice until and unless material is furnished showing that the property is held by the person complained against, is reasonably suspected to be acquired by smuggling. He shall thereafter examine the material placed before him and if, so required he may hold a preliminary inquiry as well. However, if sufficient material is furnished to the Special. Judge, then holding of preliminary inquiry would not be necessary. In any case, the learned Special Judge must be in possession of sufficient material before him, on examination whereof and application of judicial mind, he has reason to believe that there is sufficient ground for proceeding against such person and such reason shall be recorded in writing. If the Special Judge fails to record the reason to believe that there is sufficient ground for proceeding against such person and issues a notice under Section 31, it shall be violative of the mandatory requirement of law as discussed above.
32. 17.In the light of the above discussion, I find that the learned Special Judge received information from Inspector Assets, A.N.F. Karachi, on 3-2-1999 and on the same day issued notice under Section 31 of the Prevention of Smuggling Act, 1977. A perusal of the notice already produced in earlier art of this judgment shows that the learned Special Judge observed, that Para 3 of the application containing information relates to the allegations saying that during investigation of A.N.F. Zaki Pasha was found to be involved in smuggling of 'narcotics, over a period of time and has acquired property through that income.
33. 18.It is further stated in the notice that keeping in view the allegations and the material produced by the Special Prosecutor, he considers it proper to issue notice to all the respondents providing them with an opportunity to file preliminary objections, if any. It is abundantly clear that the learned Special Judge, has neither applied his judicial mind to the information furnished to him nor has made any probe. whether the property allegedly held by the persons complained against was reasonably suspected to be acquired by smuggling. He has not recorded in writing, mentioning the material produced before him, on the basis whereof he has, to believe that there is sufficient ground for proceeding against those persons. The use of the expression sufficient ground is further indicative of the intention of the Legislature that the reasons to believe that a property has been acquired by smuggling should be based on sufficient grounds and not on mere information devoid of such grounds. The learned Special Judge issued the notice in a mechanical manner as if the learned Judge was feeling himself bound to issue the notice under Section 31, as soon as, an application was submitted before him by an A.N.F. official. By acting in this manner, the learned Special Judge, abdicated himself of the jurisdiction and authority vested in him. He did not act in a manner provided in law making the entire proceedings to be violative, of the mandatory provisions of law, without jurisdiction and invalid.
34. 19.For the foregoing reasons, the notice issued under Section 31 and the entire proceedings in pursuance thereof, culminating in the order passed under Section 32, are hereby held to be not in accordance with law and invalid. The entire proceedings are quashed and the order passed by the learned Special Judge, impugned in these appeals is set aside. Consequently, Special Criminal Appeals Nos, 6 and 8 of 2004 are allowed, while Special Criminal Appeal No, 9 of 2004, at the instance of State, is hereby dismissed, for the reason that the prayer for forfeiture of the properties cannot be allowed on account of entire proceedings being illegal.
35. 20.All the three appeals stand disposed of accordingly.
36. 21.After hearing the learned Advocates for the parties on 29.8.2005, all the three appeals were disposed by a short order. These are the detailed reasons in support thereof.