1. ' SAJJAD ALI SHAH, J.---Through instant petition, the petitioner has prayed that letter dated 13-1-2011 of Muhammad Salman, Inspector (Assets Investigations) RD ANF, Karachi addressed to the Country Head (Fraud and Forgery Preventions), Meezan Bank Ltd, 3rd Floor, PNSC Building, Karachi, directing to freeze Account No,0100308059 (hereinafter referred to as "impugned notice") containing a credit balance of Rs,500,466 in the name of petitioner be declared as null and void.
2. ' Briefly, the petitioner's sons were involved in Crime No,66 and 15 of 2010 of Police Station ANF Clifton, Karachi under sections 9(b) and 9(c) of Control of Narcotic Substances Act, 1997 respectively. In the first crime the petitioner's son was acquitted, whereas, in the second crime they were convicted and the CNS Court after regular trial vide its judgment dated 11-2-2011 sentenced one of the accused to R.I. For 5 years with fine of Rs,100,000, whereas, the remaining two accused were sentenced to R.I. For two years and fine of Rs,50,000 each. On appeal though the conviction was maintained but the sentence was reduced of the first convict to three years and of the remaining two, to one year. All three convicts have completed their sentences and have been released from jail. It appears that during pendency of the trial before the CNS Court Inspector (Assets Investigations) RD ANF Karachi vide impugned notice directed the respondents Nos.4 and 5 i.e, Meezan Bank Ltd. To freeze the aforestated bank account of the petitioner who happens to be the mother of the convicts. The account consequently was placed under a statusquo which has been called in question through instant petition.
3. ' Counsel for the petitioner has contended that neither the judgment of the trial Court nor of the Appellate Court contain, any direction regarding the assets of the convicts i.e, sons of the petitioner, therefore, ANF has no power whatsoever to freeze the account of the petitioner on the ground that she is the mother of the convicts consequently the letter is nothing but abuse of the authority by the ANF officials.
4. ' On the other hand Mr. Hussain Bux Balouch appearing for the respondent ANF has contended that since the petitioner's son was involved in drug trafficking and the amount, which is available in the petitioner's account, has been procured through drug trafficking, therefore, has been rightly seized.
5. He further contends that an application under section 37 of Control of Narcotic Substances Act, 1997 is pending before the trial Court and the petitioner should have approached the trial Court instead of filing a constitutional petition which even otherwise is barred on account of availability of alternate efficacious remedy.
6. ' We have heard the learned counsel for the respective parties and have perused the record.
7. ' The scheme of law under the Control of Narcotic Substances Act, 1997 (hereinafter referred to as "Act 1997") definitely is not curative but punitive as it not only provides stringent punishment for the-criminal who indulge into the business of narcotic but also provides a machinery and mechanism to deal with the same force with all those who aid, abet or have any association in the offences pertaining to narcotic substances. In order to curb and ultimately to eradicate such maniac from the society the legislator has empowered the law enforcers to freeze all assets acquired through the money derived from unlawful narcotic business and further, has clothed the Courts with the powers to forfeit such assets. It is pertinent to note that not only the assets acquired from unlawful drug money could be frozen and or forfeited when they stand in the name of an offender, his associates, relatives or any person holding or possessing such assets on his behalf but also in cases where a person knowingly acquire any asset which is frozen by suspecting it to have been, purchased from drug money. Since the acts, prohibited by the "Act of 1997" are not only deemed to be just a crime against a human being but against the entire humanity and, therefore, it is to be enforced with all the might. However, notwithstanding the ultimate goal which the legislature intend to achieve by enforcing such stringent law for the betterment of the Society, the Courts are bound to maintain a balance while awarding convictions keeping in mind that severity of the punishment automatically increases severity of the proof and therefore have to ensure that no one is subjected to such stringent punishment unless such person is proven guilty beyond any shadow of doubt.
8. ' In the instant case during the pendency of trial the bank account of the petitioner who happens to be the mother of the convicts was frozen by an officer authorized under section 21 of the Act 1997 vide impugned letter dated 13-1-2011 by exercising powers under section 37 of the Act 1997, however, thereafter the prosecution failed to either obtain continuation of such freezing notice from the Court or could obtain a forfeiture of such assets, though the prosecution initially resulted in conviction and punishment of five years for one accused and three years for the other two.
9. ' The freezing of the assets by the Court or the authorized officer or the duration of freezing and or continuation of such freezing is detailed in section 37 of the Act 1997 and in order to dilate and mark boundaries on the powers exercised by the authorized officer it would be very material to reproduce the provision itself, which reads as under:- "37. Freezing of assets, etc.---(1) Where the Special Court trying an offence punishable under this Act is satisfied that there appear reasonable grounds for believing that the accused had committed such an offence, it may order the freezing of assets, of the accused, his relatives and associates.
(2) Where in the opinion of the Director-General or an officer authorized under section 21 an offence is being or has been committed, he may freeze the assets of such accused and within seven days of the freezing shall place before the Court the material on basis, of which the freezing was made and further continuation of the freezing or otherwise shall be decided by the Court.
(3) The said officer shall trace, identify and freeze the assets during the investigation or trial for the purpose of forfeiture by the Special Court: ' Provided that, the Director-General, or as the case may be, the officer freezing any asset shall, within three days, inform the Special Court about such freezing and the Special Court shall, after notice to the person whose assets have been frozen, by an order in writing, confirm, rescind or vary such freezing."
10. ' Minute perusal of above reproduced provisions reflects that the Legislator has empowered the Court or the Director-General of the Anti-Narcotic Force or an officer authorized under section 21 of the Act 1997 i.e, an officer not below the rank of Sub-Inspector of Police or equivalent thereto, to freeze the assets of an accused on their satisfaction that there appears reasonable grounds for believing that the accused has committed an offence under the Act 1997. However, such freezing order is always an interim arrangement till the forfeiture or release of the assets is directed by the Court. The difference between the freezing of the assets by the Court or the Director-General ANF or the authorized officer as appears from the language of subsection (2) of section 37 is that the Director-General or the authorized officer has to place the freezing notice issued by them before, the Court within seven days and it is the Court who has to decide continuation or otherwise of such freezing notice.
11. ' In case the Court does not provide continuation to the freezing A notice issued by the Director- General ANF or the authorized officer, it loses its sanctity after expiry of 7 days and the assets would automatically stand released. In cases where the continuation to the freezing notice is granted by the Court or the Court direct the freezing of the assets till the trial finalizes, in such cases unless the Court forfeits the assets by passing a separate reasoned order or through judgment, the assets automatically stand released upon pronouncement of judgment for the reason that forfeiture of the assets except where the accused is convicted for an offence under section 12 of the Act 1997 is not a sine qua non to the conviction but subject to the conditions prescribed under section 39 of Act 1997, which reads as follows:-- "39. Order for forfeiture of assets---(1) Where the Special Court convicts an accused under section 13, or sentences him to imprisonment for more than three years, the Director-General or an officer authorized by him may request the said Court by an application in writing along with a list of the assets of the convict or, as the case may be, his associates, relatives or any other person holding or possessing such assets on his behalf for forfeiture thereof.
(2) Where the Special Court is satisfied that any assets specified in the list referred to in subsection (1) were derived, generated or obtained in contravention of section 12 or are liable to be forfeited under section 19, it may order that such assets shall stand forfeited to the Federal Government: ' Provided 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 person being affected by such order.
12. ' Provided further that if such person fails to tender any explanation or defaults in making appearance before the Special Court on any date appointed by it, the Special Court may proceed to record an order ex parte on the basis of the evidence available before it
(3) Where any shares in a company are forfeited to the Federal Government under subsection (2), notwithstanding anything contained in the Companies Ordinance, 1984 (XLVII of 1984), or any other law for the time being in force or Articles of association of the Company, such shares shall be registered in the name of the Federal Government."
13. ' Perusal of above provisions in conjunction with the provision of section 12 of Act 1997 clearly reflects that in cases where Special Courts convict an accused for knowingly possessing, acquiring, using, converting, assigning or transferring any assets 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 constitute an offence punishable under the "Act 1997" or any other law for the time being in force or even under any law repealed under "Act of 1997", besides corporal punishment as provided under section 13 of the. Act 1997 his assets so acquired are liable to forfeiture to the Federal Government. However, in cases where the accused is tried for an offence other than the one detailed in section 12 of Act 1997 and the special court-convicts such accused and sentences him to imprisonment for more than three years, the Special Court on being satisfied that the assets of the convict or as the case may be, his associates, relatives or any other person holding or possessing such assets on his behalf, were acquired through the money derived, generated or obtained directly or indirectly through narcotics offences may after giving an opportunity of hearing direct its forfeiture in favour of the Federal Government. The stringency of the law can be gauged from the fact that even after the conviction of an accused in cases where such conviction has resulted in imprisonment exceeding three years, the Special Court is empowered to forfeit his assets if pointed out by the Director General or an authorized officer and further places on such convict the burden to prove that such assets or any part thereof was not acquired through an act or omission, relating to narcotic substances which constitute an offence punishable under Act 1997 or any other law for the time being in force or even under any law repealed under Act 1997. However, before directing the forfeiture, the Court must provide a reasonable opportunity of hearing to the person effected through such order of forfeiture in order to satisfy itself that the assets sought to be forfeited have been derived, generated or obtained through such act or omission.
14. ' In view of what has been discussed above, since the conviction of none of the accused persons has resulted in sentence of imprisonment exceeding three years, therefore, the question of forfeiting their assets does not arise. We consequently, allow this petition and declare the impugned notice of no legal effect. The petitioner would be free to withdraw his funds from her bank account.