CH. IJAZ AHMED, J.---We intend to decide captioned petitions by one consolidated judgment having similar facts and law.
2. Petitioners seek leave to appeal against the judgment dated 31-7-2002 wherein the application of tit` respondent No.1 for forfeiture of the property of the petitioners under section 37 of the Control of Narcotic Substances Ordinance, 1995, was accepted through the impugned judgment.
3. Necessary facts out of which present petition arise, as mentioned in order dated 26-7-2006, are as under:--- "On account of a conviction recorded against one Tasnim Jalal by a District Court in United States of America with respect to the possession of heroin with intent to distribute the same, an application was filed in the. Lahore High Court under section 37 of the Control of Narcotic Substances Ordinance of 1995 praying that the properties of the said convict acquired by him in Pakistan be forfeited. The said application bearing Criminal Miscellaneous No.1192-M of 1995 was allowed by the learned High Court through a judgment, dated 31-7-2002.
The said Tasnim Jalal impugned the said judgment before this Court through Criminal Petition No.722-L of 2002 which was dismissed through an order of this Court passed on 22-6-2004 on account of the same having abated since this Court had been informed that the said Tasnim Jalal had been murdered and since none of the legal heirs of the said Tasneem Jalal had filed any petition for being substituted in the said petition for the purpose of prosecuting the same. The legal heirs of the said Tasnim Jalal seek review of the said order dated 22-6-2004 on the ground that on the death of the said Tasnim Jalal the said property had devolved upon them and thus, they had a right to continue to press the above mentioned Criminal' Petition No.722-L of 2002 to protect the said property for their benefit. They have also placed on record a succession certificate issued by a competent Court in Lahore declaring them as the legal heirs of the said Tasnim Jalal."
4. Said review petition was accepted vide order, dated 26-7-2006 and petition was restored to its original number to be decided on merits along with the connected Criminal Petition No.288-L of 2006.
5. Respondent No.1 also filed Criminal Miscellaneous No.1521/M of 2005 in Criminal Miscellaneous No.1192/M of 1995 in the High Court with the following prayer:--- "It is therefore, most respectfully prayed that this Honourable Court may be pleased to issue warrant of possession qua forfeited properties mentioned in para.11 (supra) and further more a bailiff of this Court may kindly be deputed to execute warrants upon concerned authorities/departments. It is further prayed that possession of' properties may kindly be delivered to Regional Director, A.N.F., Lahore being Administrator of frozen and forfeited assets. It is further prayed that till the final disposal of this application respondents may kindly be directed not to change the nature of forfeited assets or to cause damage to them in any manner whatsoever. Any other relief which this Honourable Court may deem fit and proper according to the circumstances of the case may kindly be awarded."
6. The said application was accepted vide judgment dated 15-3-2006 in the following terms:-- "The said respondents are hereby directed to take possession of the relevant properties forthwith.
This petition is disposed of with this direction.
7. Petitioner being aggrieved filed Criminal Petition No.288-L of 2006 before this Court.
8. Learned counsel for the petitioners submits as under:--
(i) That Criminal Miscellaneous No.1192/M of 1995 was decided in favour of respondent by the High Court vide order dated 8-9-1998. Predecessor-in-interest of petitioners being aggrieved filed Criminal Petition No.455/L of 1998 which was accepted by this Court vide order, dated 7-4-1999 and the impugned order was set aside and the case was remanded to the High Court to decide case afresh. After remand, the learned High Court again accepted the same vide impugned judgment, dated 31-7-2002 without adverting to the contention raised by the counsel of the petitioners before apex Court.
(ii) That the respondent filed application on 28-9-1995 under section 37 of the Narcotic Substances Ordinance, 1995 before the High Court. During pendency of the application, the said Ordinance was stood repealed at the expiration of the period prescribed vide Article 89(2)(a)(ii) of the Constitution, therefore, by virtue of section 40 of the C.N.S.A., 1997, it is a special Court who has to deal with the matter, therefore, the impugned judgment is not sustainable in the eyes of law. The amendment in the said law is of a procedural nature, therefore, 'same has retrospective effect and this fact was not considered by the learned High Court in its true perspective.
(iii) That the learned High Court while accepting the application of the respondent had awarded conviction to the predecessor-in---interest of petitioners with retrospective effect. Punishment cannot be awarded retrospectively in terms of Article 12 of the Constitution.
(iv) That impugned order was passed without providing personal hearing to the petitioner. It was not decided by an forum before forfeiting the property and assets of the predecessor-in-interest of the petitioners that the assets were genuinely owned by him or not.
9. Learned counsel appearing on behalf of A.N.F. supported the impugned judgment.
10. We have given our anxious consideration to the contentions of learned counsel of the parties and have perused the record. Learned counsel of the petitioners has raised all the pleas which were raised by him before the learned High Court. All the contentions were noted and were rejected by the learned High Court as is evident from paras.4 to 13 of the impugned judgment. It is better and appropriate to reproduce property owned by the predecessor-in-interest of the petitioners:--- Sr.
No.Description of property Total Area Property Land
1. House No.24-A Nisar Colony, Khurshid Alam Road, Lahore Cantt.500 sq. yards Survey No.302/24-A, Nisar Colony Khurshid Alam Road, Lahore Cantt.
2. Residential Land Tajpura, Tehsil Cantt.
District Lahore.24 Kanals 5-1/2 Marlas Khasra No. Measurement - K. M 957 7 6 958 3 4 959 3 10-1/2 960 5 15 961 4
3. House No.95-D, Jalal Street Al-Faisal Town, Lahore13 Marlas Khasra No. Measurement - K. M 3194 - 10 3194 - 3 4. Agricultural Land Village Feroze Tehsil and District Sheikhupura134 Kanals 2 Marlas.
Khatooni Nos.9/535-547, 62/2095, 2113, 2119, 2120, 17/885, 884, 880, 885, 893, 16/1036, 83/2448, 81/2361, 2376 Name of owner Approx value Title of evidence Tasneem Jalal son of Jalal-ud-Din Resident of 95-D Al-Faisal Town, LahoreRs.50,00,000 (Fifty lac only)Sale-deed No.3508, dated 10-7-1990, Document No.8401 Volume No.1 Sub- Registrar, Lahore -do- Rs.75,00,000 (Rupees seventy-five lac only)Record of Revenue Department of N/Tehsildar, Lahore Cantt.
Khewat No. Khatooni No. 108 219 109 220 110 221 111 222 112 223 Mutation Nos.3582, 3909, 3911, 3912 and 3738 Tasneem Jalal son of Jalal-ud-Din Resident of 95-D Al-Faisal Town, LahoreRs.30,00,000 (Rupees thirty lac only)Sale-deed No.42225 Vol. No.784 page No.290/295 dated 21-3-1982 Sub- Registrar, Lahore -do- Rs.37,00,000 (Rupees thirty- seven lac only)Sale deed No.14149 Vol.850 page No.260/265 Sub- Registrar, Lahore Cantt..
Record of Revenue Department Tehsil and District Sheikhupura.Mutations Nos.2466, 2467, 2233, 2234, 2465, 2231, 2932, 3178, 2525
11. The whole controversy arises that the aforesaid properties were not made by the predecessor- in-interest of the petitioners through genuine means. The controversy between the predecessor- in-interest of the petitioners and respondents are pending adjudication since 1995. Predecessor- in-interest of petitioners and petitioners did not bring on record sufficient material to show that the properties in question were made by the predecessor-in-interest of petitioners by bona fide means or inherited the same from his forefathers. It is proper to note here that the predecessor-in- interest of petitioners was employee of the PIA. Predecessor-in-interest of petitioners was convicted on 26-9-1963 by a United States District Court in the District of New Jersey and sentenced for the offence under section 21 USC 846 of the conspiracy to distribute and possess with intent to distribute heroin. He was also sentenced under section 21 USC 841(a)(1) and section 18 USC 2 for possession of with intent to distribute heroin, aiding and abetting the said offence. The predecessor-in-interest of petitioners has sufficient notice that the respondent No.1 filed Criminal Miscellaneous No.1192/M of 1995 in the Lahore High Court, Lahore on 28-9-1995 with the prayer that the properties/assets acquired by predecessor-in-interest of petitioners be forfeited to Federal Government ' of Pakistan. As mentioned above, predecessor-in-interest of petitioners or the petitioners had not brought on record any material to show that the property in question was genuinely made by him. It was sufficient notice to the predecessor-in---interest of petitioners and petitioners in terms of law laid down by this Court in Saiyyid Abul Al'la Maudoodi's case PLD 1964 SC
673. It is better and appropriate to reproduce section 37 of Control of Narcotic Substances Ordinance, 1995:--- "37. Forfeiture of assets of person convicted abroad.---(1) Notwithstanding anything contained in any other law for the time being in force, where a citizen of Pakistan is convicted by a foreign Court for an offence which is also an offence punishable under this Ordinance, the Court may, on an application made by the Director-General or any other officer authorised by the Federal Government, order that the assets acquired in Pakistan by such citizen shall be forfeited to the Federal Government: Provided that the judgment or order of conviction---
(a) is passed by the foreign Court of competent jurisdiction;
(b) has been pronounced on the merits of the case;
(c) has not been obtained by fraud;
(d) has not been made in contravention of any law in force in Pakistan;
(e) has assumed finality through appeal, revision or review, and is not sub-judice before any appellate forum: Provided further no order under this section shall be made without providing an opportunity of being heard to such citizen: Provided also that, notwithstanding anything contained in clauses (a) to (e) of the first proviso, during the pendency of the application the Court may, by an order, freeze all or any of the assets or restrain such citizen, his associate and relative from alienating such assets by lease, sale, gift, transfer or in any other manner.
Explanation.--- For the purpose of this section, the expression "Court" means the High Court of the Province where the assets or any portion thereof are located."
12. During pendency of the application of the respondent No.1 in the High Court, said Ordinance was repealed in terms of Article 89(2) (a)(ii) of the Constitution, Control of Narcotic Substances Ordinance, 1997 (XLIII of 1997) was promulgated which was subsequently repealed vide Act No.25 of 1997 under the name and style "Control of Narcotic Substances Act, 1997" wherein section 40 relates to forfeiture of assets of persons convicted abroad which is verbatim of section 37 of the said Ordinance, 1995 with explanation. The previous actions/orders which were taken under the previous law are saved vide section 78 subsection (2) which is to the following effect:---
(2) Notwithstanding the repeal of any law under subsection (1), the repeal shall not except as otherwise provided in this Act:---
(a) affect the previous law or anything duly' done or suffered thereunder;
(b) affect any right privilege, obligation or liability acquired, accrued under such law;
(c) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against such law;
(d) affect any investigation, legal proceedings, or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment; and
(e) affect any such investigation, legal proceedings or remedy may be instituted, continued or enforced or any such penalty, forfeiture or punishment may be imposed, by the Courts, or Authorities competent to investigate, try an offence under such law if the said law had not been repealed."
13. Mere reading the aforesaid provision of law clearly shows that actions taken under the repealed Act be deemed to have been taken under the repealing Act. Saving clause has always played its own important role. Saving clause is generally used to preserve from destruction certain rights, remedies or privileges already existing. Saving means that it saves all the rights the party previously had, not, that it creates any new rights in his favour. See Arnold's case (1856) 69 EDR 911.
14. The contention of the learned counsel for the petitioners that repealing of Ordinance, 1995 is of procedural in nature, therefore, it has retrospective effect, has no force in view of law laid down by this Court in Nabi Ahmed's case PLD 1969 SC 599, Abdur Rehman's case 1978 SCMR 292 and Bhai Khan's case PLD 1992 SC 14. In the case in hand, the whole Ordinance was repealed in terms of Article 89(2)(a)(ii) consequences of which are provided in Article 264 of the Constitution. It is settled proposition of law when any instrument/Ordinance stand repealed in terms of Article 89(2)
(a)(ii) at the expiration of 4 months from its promulgation then effect of the repeal shall be determined in terms of Article 264 of the Constitution on the well-known principle that Ordinance which stood repealed in terms of the aforesaid provision of Constitution, it would be a case of repeal and not of expiry, then consequences of such repeal are envisaged in Article 264 of the Constitution. The word "repeal" means to revoke, rescind etc. whereas expire means to come to an end. Article 89(2)(a)(ii) was interpreted by the superior Courts and laid down the aforesaid principle in various pronouncements. See Zia Ullah Khan's case PLD 1989 Lah. 554. Zia Ullah Khan's case (supra) was upheld by this Court reported as Government of Punjab through Secretary, Home Department v. Zia Ullah Khan and 2 others 1992 SCMR 602. Article 264 was also interpreted by this Court in United Sugar Mills Ltd.'s case PLD 1977 SC 397 and observed that Article 264 of the Constitution is a reproduction in the Constitution of section 6 of the General Clauses Act, 1897. Even otherwise, the contention of the learned counsel for the petitioners has no force in view of repeal of Ordinance, 1995. There is no difference in section 27 of the Ordinance, 1995 and section 40 of the Act, 1997 mentioned herein above. Both the sections contained the explanation as "for the purpose of this section, the expression Court means the High Court of the Province where the assets' or any portion thereof are located". This explanation clearly envisages that there is no change in the forum at all as alleged by the learned counsel of the petitioners. The property of the predecessor-in- interest of petitioners was forfeited in terms of the provisions of law as the predecessor-in-interest of petitioners was convicted and sentenced by the Foreign Court in 1993 as mentioned herein above under offences relating to possession and distribution of heroin. Learned High Court was justified to give finding against the predecessor-in-interest of the petitioners that learned High Court did not find any violation of Article 12 of the Constitution inasmuch as forfeiture of assets stood prescribed by the said law for offence committed by the predecessor-in-interest of the petitioners at the relevant time. The learned High Court has dealt the matter in para.11 in detail and thereafter had given findings of fact as under:--- "Having thus examined the provisions of said Drugs Act in juxtaposition to the said Ordinance, 1995, I do not find any violation of Article 12 of the Constitution inasmuch forfeitures of assets stood prescribed by the said law for offence committed by the respondent at the relevant time."
15. It is proper to note that the aforesaid finding is in accordance with the mandate of Article 12 of the Constitution coupled with the fact that there is no violation of Article 12 of the Constitution as alleged by the learned counsel of the petitioners. This Court has earlier remanded the case to the High Court to decide the case afresh vide order, dated 4-6-2001 whereas the learned counsel for the petitioners has relied upon his contentions which were raised before this Court in the earlier round of litigation, therefore, this contention has also no force. It is settled law that constitutional jurisdiction is always discretionary in character. He who seeks equity must come with clean hands.
Keeping in view the conduct of the petitioners, as highlighted in the impugned judgment and also mentioned hereinabove, we are not inclined to exercise discretion in favour of the petitioners as law laid down by this Court in Nawab Syed Raunak Ali's case PLD 1973 Sc 236, Rana Muhammad Arshad's case 1998 SCMR 1462 and Noora's case PLD 1973 SC 469.
16. Learned counsel for the petitioner has failed to raise any substantial question of law. We have, in the interest of justice and fair play, re-examined the case of the petitioner, we do not find any infirmity or illegality in the impugned judgment. It is also settled law that this Court has no jurisdiction to substitute its own findings in place of the finding of High Court while exercising power under Article 185(3) of the Constitution as law laid down by this Court in Syed Azmat Ali's case PLD 1964 SC 260.
17. For what has been discussed above, we do not find any merit in this petition which is dismissed.
Leave declined. However, the Director-General, A.N.F. is directed to cause production of a list of the properties forfeited ever since the introduction of section 37 of Narcotic Substances Ordinance, 1995 as also under section 35(c) of the Dangerous Drugs Act of 1930 till date. He shall also supply the details of the auction 'money and the prices at which these properties had been auctioned. To the said extent, this matter shall be listed on 26-8-2009.