' SADIQ HUSSAIN BHATTI, J.---Through the instant Special Criminal Appeal, the appellant (ANF), through its Deputy Director (Law) called in question the order dated 16-6-2009, passed by the Special Judge (Customs, Taxation and Anti-Smuggling), Karachi in Special Case No,3 of 1995 (State v. Muhammad Anwar Khattak and others), whereby the learned Special Judge released the property in pending trial.
2. Brief facts of the prosecution case are that the respondent No,1 purchased the property No,M-1, Mezzanine Floor, Tower-A, Palm Beach Homes, Block-2, KDA Scheme No,5, Clifton, Karachi in the year 1993 from Messrs Al-Ghazi Associates (Pvt.) Limited after payment of Rs,50,000 and the property was registered vide Sub-Deed of Lease Registration No,1647, Book No,I, by Sub-Registrar T.
Division-II, Karachi on 15-5-1993, though the restriction on the property was imposed vide notice under section 31 of the Prevention of Smuggling Act, 1977.
3. It is contended by Mr. Hussain Bux Baloch, Special Prosecutor ANF that the learned Special Judge failed to understand and comprehend that in order to safeguard the properties of drug baron Muhammad Anwar Khattak, the entire vicious circle has been created that that respondent No,1 had got no locus standi to purchase the said property under dispute from Messrs Al-Ghazi Associates (Pvt.) Limited, which was supervised and literally owned by the accused drug baron Muhammad Anwar Khattak, who was the Managing Director of the said Messrs Al-Ghazi Associates (Pvt.) Limited and undoubtedly he is known notorious drug baron and also convicted by the foreign Courts. It is further contended that the case of the respondent No,1 is hit by the principle of "CAVEAT EMPTOR", which means that the buyer must be vigilant but the respondent No,1 pretends his innocence and he was obliged to see that whether Messrs Al-Ghazi Associates (Pvt.) Limited is free from any sort of charges of whatsoever nature and the criminal negligence on the part of the respondent No,1 cannot be substituted as a title of bona fide purchaser. It is further contended that the learned Special Judge did not advert to the various aspects of the notice dated 10-10-1996, which was issued under section 31 of the Prevention of Smuggling Act, 1977 for freezing the transaction, which was made in continuation of F.I.Rs, Nos.155/1983, 765/1985 and 30/1985 name of drug baron Anwar Khattak was very much apparent and the learned Judge instead of discouraging the respondent No,1 have facilitated him by de-freezing the property. It is further contended that the respondent No,1 seems to have not issued any notice, which is to be published in any daily newspaper, whereby the public was informed in general that he is going to purchase the property under dispute, which shows that the respondent No,1 was nothing but a front man of drug baron Muhammad Anwar Khattak. Lastly, he contended that the order passed by the learned Special Judge, de-freezing the property be recalled.
4. On the other hand, learned counsel for the respondent No,1 contended that no notice regarding freezing the property has-been served upon him and he voluntarily appeared before the learned trial Court and moved application for de-freezing the property. He further contended that the respondent No,1 has no nexus or link with Muhammad Anwar Khattak and his Associates and the respondent No,1 has purchased the property from Al-Ghazi Associates (Pvt.) Limited in the year 1993 for Rs,50,000 whereas the restriction over the said property was issued by the Court on 10-10- 1996 and even notices were served by the Court upon Muhammad Anwar Khattak and his Associates and no notice was issued or served upon the respondent No,1, who is the lawful owner of the said property.
5.Heard the- counsel for the parties and perused the record. The record shows that property in question was booked and purchased by the respondent No,1 from Messrs Al-Ghazi Associates (Pvt.) Limited for Rs,50,000 in the year 1993. Record further reveals that the aforesaid property was registered vide Sub-Deed of Lease Registration No,1647, Book No,I, by Sub-Registrar T.Division-II, Karachi, dated 15-5-1993, whereas notice under section 31 of the Prevention of Smuggling Act, 1977, imposing restriction over the said property was issued by the Court/respondent No,2 on 10-10-1996.
In fact the said notice was issued by the Court upon Muhammad Anwar Khattak and his Associates, as a list of property, including the property in question (Suit property), was submitted by the ANF that the property was acquired through ill-gotten smuggling money. The Court did not issue such notice to the respondent No,l. Learned counsel for respondent No,1 also vehemently opposed by submitting that such act is in gross violation of section 31 of the Prevention of Smuggling Act, 1977, as no notice, was issued to the respondent No,1, the holder of the Suit property.
Section 31 of the Prevention of Smuggling Act, 1977, reads as under:- "Section 31. Notice-to person holding property suspected to be acquired by smuggling.---(1)
Whenever a Special Judge receives information that within the limits of his jurisdiction any person, either in his own name or in the name of any relative or associate, is holding property which is reasonably suspected to be acquired by smuggling, the Special Judge may issue to such person a notice calling upon him to show cause, within such time as may be specified in the notice, which shall not be less than thirty days, why the whole or any part of such property should not be declared to be property acquired by smuggling and to be forfeited to the Federal Government."
6. The learned counsel for the respondent No,1 relied upon the case-law, which enunciated the principles laid down in Article 9 of the Constitution that, no person shall be deprived of life or liberty save in accordance with law. Learned counsel for the respondent No,1 further relied upon the case- law PLD 2006 Karachi 25 wherein it is held as under:-- ' It is provided in subsection (1) of section 31 that whenever a Special Judge receives information that within the limits of his jurisdiction any person, either in his own name or in the name of any relative or associate, is holding property which is reasonably suspected to be acquired by smuggling, the Special Judge may issue to such person a notice calling upon him to show cause, within such time as may be specified in the notice, which shall not be less than thirty days, why the whole or any part of such property should not be declared to be property acquired by smuggling and to be forfeited to the Federal Government. It is to be noted that, .There should be information before the Special Judge, not only that a property is suspected to be acquired by smuggling but it should "reasonably suspected" to be acquired by smuggling. It is trite law of the interpretation of statute that every word used by legislature is to be assigned a meaning."
"It is evident that no notice is to be issued under section 31(1) in a mechanical manner without application of judicial mind. It is mandatory requirement of law that the Special Judge must receive information containing material to show that it is reasonably suspected to be acquired by smuggling. If the information does not contain material to show that any person is holding property, which is reasonably suspected to be acquired by smuggling, the Special Judge shall not issue any notice until and unless material is furnished showing that the property is held by the person complained against, is reasonably suspected to be acquired by smuggling."
7. As such notice was not only mandatory but in fact very practical to serve upon the respondent No, 1 . Since he was registered title owner and such notice is imputed in law to one and all owing to the registration. That no such notice was served upon respondent No,1 but he appeared before the Court and after due discussion the Court released the property in question vide order dated 16-1- 2009. The perusal of the record does not show any links between the respondent No,1 and Muhammad Anwar Khattak and his Associates. The prosecution has not been able to establish through arguments or record business deals with Al-Ghazi Associates (Pvt.) Limited and Muhammad Anwar Khattak. Although F.I.R. Against Muhammad Anwar Khattak was lodged in the year 1985, hence prosecution had sufficient time to collect tangible evidence to connect the respondent No, 1 and Al-Ghazi Associates with accused Muhammad Anwar Khattak. The prosecution has not been able to produce any evidence that the respondent No,1 was involved in drug smuggling business and that he purchased the property in question through ill-gotten money or any other illegal source, although such allegations have been levelled but without any material evidence, therefore, it cannot be supposed that the title-holder/ respondent No,1 had no sufficient source to purchase the property in question.
' In view of the above discussion, I am of the opinion that the appellant has failed to make out a case in its favour, therefore, this Special Criminal Appeal is hereby dismissed.