' ABDUL AZIZ KUNDI, J.---This single judgment shall also decide connected Writ Petition No,823 of 2007 entitled "Nasir Haleem Khattak and another v. Government of Pakistan through Secretary Interior Division, Islamabad and 8 others" because the facts leading to the controversy, forfeiture and confiscation of the property both set of the petitioners and also the grounds therefor are the same. Moreover, the law points involved in both the petitions are identical.
2. The petitioners Syed Zafar alias Qazi Zafar Afridi and four others have invoked the Constitutional jurisdiction of this court to declare the forfeiture/confiscation of their properties as without lawful authority through the impugned judgment dated 31-1-2005 recorded by the Presiding Officer/Judge Special Court (Central) Customs, Taxation and Anti-Smuggling, N.-W.F.P., Peshawar, and further to declare null and void the judgment of the appeal court dated 14-7-2006 being without jurisdiction and lawful authority.
3. The brief background of the case is that petitioner No,1, who is father of petitioners Nos.2 to 4 and uncle of petitioner No,5, was previously booked for crimes under Articles-3/4 and 9 of the Prohibition Order, 1979, and under section 9 of the C.N.S. Act, 1997, on five different dates commencing from 27-3-1996 and the last registered case was F.I.R. No,18 of 2000 under Articles-3/4 of the Prohibition Order, Police Station A.N.F, Peshawar. After holding trials in all the five cases, the Special Court at Lahore, in the four cases and Special Court, Peshawar, in the last case honorably acquitted him vide judgments dated 23-9-2000 and in the last case on 7-4-2001. The judgments of acquittal were never challenged by the respondents in the court of appeal thus, attained finality.
' In the connected Writ Petition No,823 of 2007 the plea of the petitioners is that they earned money from their lawful business as one of the petitioner was Engineer in Merchant Navy while the second one a doctor by profession and still in service. The respondents Nos.6 and 7, who are the sons of Qazi Zafar Afridi were the owners of Bungalow No,45-D-III situated in University Town Peshawar, and a bargain was struck between the parties, where under the Bungalow was purchased by the petitioners for Rs,45,00,000 vide registered deed dated 28-1-2002.
' It was at this juncture, that, while chasing the assets of Qazi Zafar Afridi, complaint No,3 was instituted against him under section 31 of the Prevention of Smuggling Act, 1977, wherein the Bungalow in question was also shown in the schedule of the complaint with allegations of having been acquired through the money/wealth earned by the said Qazi Zafar Afridi derived from the smuggling of narcotics. Notice was also issued in this complaint to the petitioners Qazi Zafar Afridi and others, which was replied by them, trial was held and at the conclusion the impugned order was passed by the learned Judge Customs (Central),. Peshawar, dated 31-1-2005, the Bungalow in question was also forfeited/confiscated to the State along with other property of Qazi Zafar Afridi and others, petitioners accepting the allegations contained in the complaint. Appeal filed by the petitioners met the same fate as it was dismissed on merits by the learned Judge of this court vide judgment dated 10-4-2006.
4. On 14-11-2001 the respondents through their standing counsel instituted a complaint under section-31 of the Prevention of Smuggling Act, 1977, with a prayer that the immovable property/assets acquired by petitioner No,1 herein in his own name and in the names of petitioners Nos.2 to 5 were from the business of smuggling of narcotic thus, the same were liable to be forfeited to the Federal Government under the above provision of law.
5. The learned Judge Special Court Customs, Peshawar, issued notices to the petitioners under section 31 of the Prevention of Smuggling Act, 1977, which were replied by the petitioners through a rejoinder, wherein question of jurisdiction of the trial Court was specifically challenged. However, the learned trial Judge accepted the complaint at the conclusion of the trial/proceedings vide the impugned judgment and vide impugned judgment of the the Hon'ble Judge of this court in Criminal Appeal No,121 dated 10-4-2006, the same maintained by dismissing the appeal of the petitioners.
6. In their petition as well as during the course of arguments it was the case of the petitioners that since Syed Zaffar alias Qazi Zaffar Afridi petitioner No,1 was honourably acquitted in all five cases registered against him vide F.I.Rs, No,6/96, 2/96, 3/96, 7/96 and 18/2000, therefore on the same allegations complaint under section 31 Prevention of Smuggling Act, 1977 could neither have been filed, nor entertained and adjudicated upon by Judge, Special Court under the Prevention of Smuggling Act, 1977.
7. Article 13 of the Constitution of Islamic Republic of Pakistan, 1973 reads as under:-- "13. No person-
(a) shall be prosecuted or punished for the same offence more than once;"
' Similarly, section 403, Cr.P.C. Reads as under:-- "403. Person once convicted or acquitted not to be tried for same offence.---
(1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 236, or for which he might have been convicted under section 237.
(2) A person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which separate charge might have been made against him on the former trial under section 235, subsection (1).
(3) A person convicted of any offence constituted by any act causing consequence which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last-mentioned offence, if the consequences had not happened, or were not known to the Court to have happened, at the time when he was convicted.
(4) A person acquitted or convicted of any offence constituted by any act may, notwithstanding acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged.
(5) Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897, or section 188 of this Code."
' Likewise section 26 of the General Clauses Act, 1897 reads as under:-- "26. "Provision as to offences punishable under two or more enactments." Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished for same offence."
8. A bare reading and inter se comparison of all the three provisions as pressed into service on behalf of the petitioners would show that it is prosecution or punishment for the same offence which is prohibited more than once.
9. Now let us examine as to whether it is really the same offence in respect of which the complaint aforestated was filed under section 31 ibid or a totally different one.
10. As stated above, it is acquittal of petitioner No,1 in F.I.Rs, detailed above, which has been made the basis of their defence as well as foundation of this petition by the petitioners. Except for one F.I.R., which was registered in the year 2000, all other F.I.Rs, were registered in the year 1996 and their full details are available in para-4 of the writ petition.
11. When compared with reference to the properties acquired by petitioners fully detailed in Notice dated 13-4-2002 issued by trial Judge to petitioner No,1, it is manifestly clear that the acquisition of the said properties had commenced since 12-1-1986 and the last acquisition was on 26-10-1995.
The date of acquisition of Bungalow/Plot No,45-D (iii), Jamrud Road, University Town, Peshawar (measuring 1.08 kanals) is, however, conspicuous by its absence.
12. It can thus hardly be said that the filing of complaint, its entertainment and adjudication by Special Judge was in fact their prosecution or punishment for the same offence, for which he/they had been once tried and acquitted.
13. The rule that no man shall be vexed twice for the same offence commonly called Rule of double jeopardy came up for consideration before august Supreme Court of Pakistan in the case of Muhammad Ashraf and others v. The State (1995 SCMR 626) and it was held as under:-- "The Constitutional guarantee is confined only to duplicate punishment and is silent in so far as acquittal is concerned. Section 403(1) however prohibits the second trial for an offence during the course of existence of conviction or acquittal of a person, as the case may be, in consequence of final adjudication of such an offence by a Court of competent jurisdiction. Thus the rule against "autrefois acquit" finds place in section 403(1) and the counterpart of this rule "autrefois convict" has received recognition in the Constitutional guarantee embodied in Article 13(a).
' In the present case one trial ended in conviction and punishment and in the second case accused was acquitted. When the two judgments are placed in juxtaposition it becomes evident that the judgment of conviction in point of time was rendered first and shall hold the field. The accused's subsequent acquittal cannot reflect upon his conviction and sentence awarded to him on the basis of the trial.
' Under section 26 of the General Clauses Act there is no bar on the simultaneous prosecution; what is prohibited is duplicate punishment and not the trial."
14. Earlier too the question had been considered by a Division Bench of Karachi High Court in the case of Hort Khan and 6 others v. N.I.R.C, Islamabad and 2 others (PLD 1977 Karachi 145) and it was held that Article 13 (a) of the Constitution and section 403, Cr.P.C. Are substantially different from each other.
15. In the case of Shadi Khan v. The State through Advocate-General of Balochistan, Quetta (2002 SCMR 273), the august Supreme Court of Pakistan with reference to the law laid down in the case of State through Collector, Customs v. Naseem Ahmad Butt and others (2001 SCMR 1083) considered the law laid down in the cases reported as PLD 1977 Karachi 145 and 1995 SCMR 626 and that of the case titled The State v. Anwar Khattak and others (PLD 1980 FSC 62) and granted leave to examine the question as to whether the offence under section 156(1)(8), Customs Act, 1969 and the offences under section 9(a)(b)(c) of Control of Narcotic Substances Act, 1997 are same offences and if an accused is convicted/sentenced under any of the provisions out of both these laws, the trial/conviction/sentence of the accused/petitioner under the other law would be barred in view of the provisions of Article 13(a) of the Constitution of Islamic Republic of Pakistan, 1973 and section 403, Cr.P.C.
16. The ultimate fate/decision of this case (2002 SCMR 273) was not brought to our notice.
17. In view of the above, we are of the view that filing of complaint under section 31, Prevention of Smuggling Act, 1977 and its adjudication was not hit by principle of "Double Jeopardy".
18. The second point urged was that of jurisdiction of the Special Judge under the Prevention of Smuggling Act, 1977 and it was argued that it would be court empowered under Control of Narcotic Substances Act, 1997 which could entertain and adjudicate upon the complaint.
19. Sections 31, 32 of the Prevention of Smuggling Act, 1977 deal with the issuance of notice and passing orders for forfeiture of property of a person who is found to have acquired the said properties through smuggling.
20. As against that, forfeiture can be ordered under sections 19 and 39 of Control of Narcotic Substances Act, 1997 by Special Court constituted in the said Act only when he is convicted. There is, thus vast difference between the two, one provided in the Act of 1977 and the other in the Act of 1997.
21. The later one makes conviction of the person a precondition for proceedings against him, while the former does not lay any such condition and a person, who though not tried and convicted of an offence. Can still be proceeded against in respect of forfeiture of his assets, if found to have acquired through smuggling.
22. Petitioners' case is one where during the period they acquired the said properties, they were not charged or convicted for any offence of smuggling but were found to have acquired the said properties through the income derived from-smuggling and thus notwithstanding the fact that provisions of Control of Narcotic Substances Act, 1997 have over-riding effect, action under sections 31 and 32 of Act, 1977 was legal and justified.
23. Besides the legal proposition so propounded and stressed upon, the learned counsel also took us through the evidence recorded by the trial Court and was of the view that both the impugned judgments, the one rendered by the trial Court and the other by the appeal court have been operated upon on high presumptions, conjectures and surmises. He was of the further view, under the statutory law, the burden to explain that the properties were acquired through legal means, was on the petitioners, nonetheless it has been the consistent view of the superior courts of the country that even in such matters, the accused/respondent is not required to prove his innocence in the same manner and according to the same standards laid down for the prosecution to prove a criminal charge against an accused. In such cases the person charged with such like allegations is simply required to offer some reasonable explanation and then the burden is re-shifted to the complainant/ prosecution to substantiate its allegations against the accused through cogent, convincing and reliable evidence. However, according to him, complainant/prosecution has miserably failed to lead any evidence of the nature raising a reasonable presumption, on which a judicial verdict can be legally structured thus, the impugned judgments, as was contended, are coram non judice, in disregard of law and the provisions of Constitution thus, are liable to be set at naught.
24. To the contrary, learned counsel for the respondent/complainant contended with vehemence that, keeping in view the past financial status of petitioner No,1 being retired "Subedar" and belonging to Tribal Area, how it was possible for him to accumulate wealth, property and assets disproportionate to his known resources/income thus, both the learned courts were right in holding that the wealth/properties and assets were acquired through money earned by smuggling narcotics and the presumption so drawn is well founded thus, could not be held unreasonable or in disregard of law on the subject.
25. Over all analysis of the evidence and the submissions made at the Bar has led us to conclude that complainant has miserably failed to prove the allegations against petitioner No,1 while the said petitioner has sufficiently discharged his onus and proved that the property is acquired by him not as a result of income derived from smuggling etc. Except statement in the complaint, no evidence worth the name has been produced or brought on the record by complainant and on the basis of mere allegations of the nature leveled in the complaint under section 31 of the Anti- Smuggling Act, 1977, a citizen cannot be deprived of his property as enshrined in Article 24 of the Constitution of Islamic Republic of Pakistan, 1973.
' As a result this Writ Petition No,1237 of 2006 and the connected Writ Petition No, 823 of 2007, entitled Nasir Halim Khattak and another v. Government of Pakistan and eight others are allowed and both the judgments impugned herein are set at naught.