IBAD-UR-REHMAN LODHI J.---Through the present appeal, appellants-Abdul' Rehman Shanwari, Zia-ur-Rehman, Ibad-ur-Rehman, Hamza and Muhammad Asif have assailed the findings of learned Judge Special Court under the Control of Narcotic Substances, Lahore dated 28-2-2011, whereby the findings earlier arrived at on 21-1-2011 were affirmed and a detailed probe was refused on forfeiture of the property of the appellants.
2. The facts relevant for the purpose of the disposal of this appeal are that appellant No,1 was tried and sentenced under the provision of Control of Narcotic Substances Act, 1997 in two different eases registered through F.I.Rs, Nos.66 and 67 of 2000 dated 15-9-2000 with Police Station Anti- Narcotic Force, Model Town, Lahore and vide judgment dated 27-8-2005 he was convicted and sentenced to death. On appeal, his conviction was set aside by this Court on 18-5-2009 and the case was remanded to the learned trial Court for decision afresh. In post, remand proceedings, the learned trial Court maintained the conviction, however, instead of death sentence he was awarded life imprisonment.
3. In the first round, subsequent to his conviction, vide judgment dated 27-10-2006 his property was ordered to be forfeited in favour of Federal Government and it was clearly mentioned by the learned trial Court that house, which was forfeited, was in the name of the convict and his four sons.
4. The conviction as was announced on 27-8-2005 by the learned trial Court was set aside by this Court in appeal on 18-5-2009 and thus the forfeiture ordered on the basis of such conviction lost its any efficacy and for that purpose the Anti-Narcotic Force moved again the learned trial Court for afresh forfeiture. This time, the learned trial Court on 21-1-2011 without giving any show-cause notice to the owners of the property straightaway ordered the forfeiture of. House as was ordered in earlier round of litigation and such findings were affirmed on 28-2-2011.
5. The learned counsel for the appellants mainly, while placing reliance on provisions under section 39 of the Control of Narcotic Substances Act 1997, has argued that in case of any sentence of imprisonment for more than three years, if court is moved by any authorized officer by way of application in writing along with a list of assets of the convict or his associate, relative or any other person holding or possessing such assets on his behalf, for the forfeiture, the Special Court upon "satisfaction" that any such assets were derived, generated or obtained in contravention of section 12 of the Act or are liable to be forfeited under section 19 of the Act, it may order that such assets shall stand forfeited to the Federal Government. But a proviso attached with such subsection requires that no order under this section shall be made without issuing a notice to show-cause and providing a reasonable opportunity of being heard to the persons being affected by such order.
6. The learned Special Prosecutor for ANF has halfheartedly conceded the position that after conviction as was announced in post remand proceedings no notice as is required under the proviso to section 39(2) of the Control of Narcotic Substances Act, 1997 has been issued to the appellants nor they were provided any reasonable opportunity of being heard, thus, the orders impugned herein suffers from illegality and are not sustainable.
7. When the earlier conviction was set aside and fresh order convicting appellant No,1 was passed by the learned trial Court it was incumbent upon it to observe the procedure provided, particularly in section 39 of the Control of Narcotic Substances Act 1997 if the assets of the convict are going to be forfeited and for satisfaction of the court a detailed inquiry was sine qua non and also a declaration to the effect that the assets/subject-matter of forfeiture were derived, generated, or obtained in contravention of section 12 thereof was necessary but the learned trial Court has miserably failed either to observe such procedure or to give any declaration as is required under the law. The impugned orders are thus declared to have been passed without lawful authority and illegal and are set aside.
8. Keeping in view the above, the matter is remanded back to the learned trial Court for decision afresh of the case of forfeiture of the assets of the convict but after adopting all codel formalities as has been pointed out in the above lines. The learned trial Court would finalize the proceedings within two months from today.
9. With the above observations, this appeal is disposed of accordingly.