Mian Fasih-ul-Mulk, J.--The learned Special Judge, Prevention of Smuggling Act, 1977, Peshawar on having received information from the Special Prosecutor Anti-Narcotics Force that Respondent No. 1 Obaid Khan has purchased properties in his own name and in the names of his relatives etc. through illegal resources i.e. smuggling of narcotics, issued notices to respondents under Section 31 of the Prevention of Smuggling Act, 1997, which were duly contested.
2. Respondents in defence examined as many as 17 witnesses.
3. It appears that there were numerous general complainants to the high-ups that narcotics were being smuggled from Peshawar to foreign countries by some of the officials of General Post Office, Peshawar as on 07.04.1991 and (sic)04.1991, 37 parcels were posted from GPO Peshawar to Lagos and Nigeria, which contained heroin. Two FIRs were accordingly registered in Police Station Anti- Narcotic Force, Peshawar as well as another FIR under Section 5(2) PC Act, was registered in Police Station FIA, Peshawar. During investigation it transpired that respondent Obaid Khan had joined the Post Office as a Clerk in BPS-7 in the year 1974, who belonged to a poor family but during a short span of time i.e. from 1989 to 1997, he acquired 199 kanals and 15 marlas landed properties in his name or in the names of his close relatives; whereas during his entire service, he received an amount of less than one million rupees as pay, G.P, fund, pension and commutation.
4. The learned trial Court, while appraising evidence in the case, came to the conclusion that investigation was started on complaints of sending heroin to foreign countries by the GPO officials but neither the Post Master General of GPO was produced for evidence nor the envelops/parcels were produced in which the alleged heroin were seized. From the FIRs registered, it is not yet clear and certain that who was held responsible for the same activities and how this business was carried out and what was the financial outcome of the same and who, the beneficiary was. The documents on the file however revealed that the alleged properties in the names of the wives of Obaid Khan were purchased in between 1989 and 1998; therefore, one can easily presume that wherefrom this wealth came in the hands of Obaid Khan Respondent over-nightly. The learned trial Court while sorting-out market value of the properties observed that the same being worth Rs.2,51,03,000/- cannot be said to have been wholly and solely acquired through smuggling; hence shares upto 40% in the alleged properties were treated to have been purchased through the money accumulated through suspected means of smuggling whereas 60% shares were invested by the respondents from their own generated sources.
5. The State through Deputy Attorney General filed appeal against the said judgment of trial Court before the Special Appellate Court Prevention of Smuggling Act, 1977 Peshawar, but the same was dismissed being not maintainable.
6. The petitioner has now filed instant constitutional petition for setting aside the impugned judgments of the Courts below and ordering for forfeiture of entire properties of respondents.
7. Vide order dated 30.06.2006 of this Court, the learned Special Prosecutor for ANF Mr. Tariq Khan Kakar, advocate was asked to first argue the point of competency of the writ petition before proceeding ahead. On the next date, the learned counsel, however, requested for time to prepare the case on this point.
8. Today, the learned Special Prosecutor referred to an unreported judgment of the august Supreme Court of Pakistan in Civil Petition No. 667-P/2003 filed by Anti-Narcotics Force, wherein too the Special Appellate Court and this Court had dismissed the appeal and writ petition of petitioner being not maintainable, but the learned Bench while setting aside the judgments of all the three forums, remanded the case to the trial Court for decision afresh.
9. We have heard learned counsel for the parties and have also gone through the record.
10. Perusal of the judgment of the Apex Court in the above referred case would reveal that the case was remanded to the trial Court after counsel for respondents frankly conceded that the judgment of trial Court is based on oral assertions of the respondents/accused and no documentary evidence has either been referred to or relied upon by the trial Court. The Hon'ble Bench, while remanding the matter to the trial Court, did not take into consideration the judgments of Special Appellate Court and the judgment of this Court in constitutional petition on the subject matter i.e. maintainability of appeal etc.
11. For the sake of convenience, Section 43 of the Prevention of Smuggling Act, 1977 is hereby reproduced as under:-- "43. Appeal.--Any person aggrieved by an order of the Special Judge passed under Section 31, Section 32 or Section 34 may, within thirty days from the date of such order, prefer an appeal before the Special Appellate Court whose decision thereon shall be final.
(2) The provisions of the Limitation Act, 1908 (IX of 1908), shall apply in an appeal filed under sub- section (1)".
At the time of hearing the appeal filed by Anti-Narcotics Force against Haji Iqbal Shah and 11 others, reported in 1999 P.Cr.L.J 1125, the learned counsel appearing for respondents namely Mr. M. Zahurul Haq, Bar-at-Law raised an objection on the maintainability of appeal by referring to Section 47(1) of the Act, and submitting that counsel for Anti-Narcotics Force was only a Special Prosecutor, authorized to appear before the Special Judge and had no authority to file appeal or appear before the Special Appellate Court as by virtue of sub-section (2) of Section 47 of the Act, only Law Officer appointed under the Central Law Officers Ordinance, 1970 is competent to conduct proceedings before the Special Appellate Court. The above objection prevailed upon the then learned Presiding Officer of Special Appellate Tribunal in the following terms:- "As to the question, whether appellant is covered by any person "aggrieved", we may refer to the definition of "aggrieved person" provided in the "interpretation of statute", by N.S. Bindra where it is defined "a person aggrieved must be a person against whom a decision has been pronounced which has wrongly refused him something which he had a right to demand". A very elaborate definition of "aggrieved person" has been given, by Sardar Muhammad Iqbal, J, in Sajjad Haider vs. Government of West Pakistan PLD 1967 Lah. 938 which reads as under: "The words 'aggrieved party' or 'person' aggrieved do not really mean a man who is disappointed of a benefit which he might have received if some other order had been made. "A person aggrieved" must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something, or wrongfully refused him something, or wrongfully affected his title to something."
The above definition of 'aggrieved person' clearly connotes an individual who has wrongly been deprived of or refused of something. He is only aggrieved if he is entitled to be called a person. I am also alive to the query that the word 'any' excludes limitations, restrictions of qualification. It, no doubt connotes wide generality but when we get back to the word any person used to the different provisions in the Act, itself it is found to have been used to represent a person whose property is to be forfeited.
The above verdict was further affirmed by a learned Division Bench of this Court in the writ petition filed by Anti-Narcotics Force.
12.In the circumstances, we would subscribe to the earlier view taken by this Court and the view taken by the learned Special Appellate Court in the instant case that petitioners do not fall within the definition of aggrieved "persons"; hence the impugned judgment of the Special Appellate Court requires no interference from this end.
13.For the aforesaid reasons, this writ petition is dismissed accordingly with no order as to costs.