' SARMAD JALAL OSMANY, J.--- Vide this application it has been prayed that the proceedings under crime No,1/2003 of PS, ANF, Sukkur which are pending adjudication before the Court of Special Judge for CNS, Sukkur being Special Case No,7/2003 titled State v. Azfar Hussain be quashed as being without jurisdiction and against the law.
2. In support of the applicant Mr.Maqbool Ahmed Awan has submitted that originally the applicant's late father. Was booked under crime No,21/1988 of PS, PNCB, Sukkur under the Prohibition Order 1979 and the same abated due to the death of the applicant's father viz. Azhar Hussain. Now in the year 2003 the present F.I.R. Has been registered against the applicant under sections 12 and 13 read with section 37(2) of the CNS Act being crime No,1/2003 of PS, ANF, Sukkur.
3. Per learned counsel section 12 of the CNS Act prohibits the possession, acquisition, assignment or transfer of any assets by any person which have been derived, generated or obtained, directly or indirectly, either in his own name or in the name of his associates, relatives or any other person through an act or omission relating to narcotic substances which constitutes an offence punishable under, this Act, the Customs Act, the Prohibition (Enforcement of Hadd) Order, 1979, or under any other law. For the time being in force, or constituted an offence under any layy repealed by this Act. Consequently, per learned counsel since section 12 of the CNS Act was not on the Statute Book in 1988 when the offence was commit* by the applicant's father; therefore, the income derived front the fruits of such offence could not be visited upon his son viz, the present applicant.
In short per learned counsel the offence which is the subject-matter of section 12 of the CNS Act is not retrospective in nature and hence per the constitutional guarantees contained in Article 12 the property allegedly acquired under the earlier offence cannot be frozen/ acquired by the State.
4. This submission has been opposed by Mr. Aslam Roshan Rajput, learned S.P.P. For ANF on the ground that section 12 of the CNS Act is very much clear in this regard that the income made or derived out of the proceeds of dealing etc. In narcotics can be made the subject-matter of the present F.I.R.
5. We have heard both learned counsel as well as learned S.P.P. It would be seen that section 12 of the CNS Act is very much clear since it prescribes the offence of possession, acquisition, assignment or transfer of any assets by any person which have been derived, generated or obtained, directly or indirectly, either in his own name or in the name of his associates, relatives or any other person through an act or omission relating to narcotic substances which constitutes an offence punishable under this Act, the Customs Act, the Prohibition (Enforcement of Hadd) Order, 1979, or under any other law for the time being in force, or constituted an offence under any law repealed by this Act. This would then mean that such possession, acquisition or transfer of the assets which are allegedly derived, generated or obtained through an act or omission relating to narcotic substances should be in violation of any law which was then existing i.e, in 1988 when the offence was committed. On the last date of hearing we had given time to Mr. Aslant Roshan to examine this provision of law and satisfy us as to whether such offence was on the Statute Book in 1988 but he is unable to do so. Hence we are very much clear in our minds that there is no retrospective application of the offence in question since it was not on the Statute Book in 1988 when it was committed. Consequently in our opinion the proceedings in question cannot result in a conviction of the accused under the present F.I.R. Since legally this cannot be done. It is settled law that in such circumstances when there is no scope for the conviction of an accused either due to some legal disability or lack of evidence, it would be indeed be a wastage of time of the Court and abuse of its process to keep such matter lingering on and hence we would set aside the impugned order and direct that the proceedings under the F.I.R. No,1/2003 of PS, ANF, Sukkur against the accused be quashed. .
6. Cr. Miscellaneous. A. No,D-146 of 2003 stands disposed of along with the listed applications.