' This appeal under section 43 of the Prevention of Smuggling Act, 1977 (hereinafter referred to as the Act) is directed against the order of Special Judge, (Central) Customs, Taxation, Anti- Smuggling and Prevention of Smuggling Act, N.-W.F.P., Peshawar passed on 4-7-1998 whereby the complaint/information filed by appellant, Anti-Narcotics Force, under section 31 of the Act was dismissed.
2. The appellant (Anti-Narcotics Force) has been constituted by the Government of Pakistan under section 3 of Anti-Narcotics Force Act (No,III), 1997 for the purposes of inquiring into and investigating offences related to narcotics and narcotics trafficking and for the matters connected with an incidental thereto.
3. Section 5 of the Anti-Narcotics Force Act prescribes the functions of the force as under:-- "Section 5. Functions of the force.--- The force shall;
(a) inquire into, investigate and prosecute all offences relating to, or connected with, preparation, production, manufacture, transportation, illicit trafficking or smuggling intoxicants, narcotics and chemical precursors or reagents used in the manufacture of narcotics or any offence committed in the course of the same transaction under any law for the time being in force, including an attempt or conspiracy to commit, or any abetment of, any such offence, or any offence committed under the Control of Narcotics Substance Ordinance, 1996 (XCIV of 1996), or the Prohibition (Enforcement of Hadd) Order, 1979 (P.O. 4 of 1979).
(b) Trace and freeze the assets;
(c) provide assistance and advice to other enforcement agencies on all matters in the field of narcotics and to collect information from all national and international enforcement agencies about illicit narcotic traffic and traffickers.
(d) maintain liaison with all national or international narcotics authorities, organizations, bodies, associations and societies and represent Pakistan in such conferences, seminars and workshops arranged by any such organization on narcotics related matters;
(e) arrange and coordinate training of own staff and members of other enforcement agencies in various aspects of narcotics enforcement;
(f) coordinate the project and schemes for elimination and destruction of poppy cultivation; and
(g) perform any other related functions which may be assigned to it by the Federal Government."
4. The appellant through its own source collected information qua properties of the respondents in terms of section 5 of the Act suspected to have been acquired by the respondents through illegal means and set !Rutted the same with the relevant documents before the Special Judge under section 31 of the Act.
5. The allegations of the appellant were that the respondents had acquired the property in question worth rupees two/three corers from the income of smuggling, trafficking of narcotics; that the respondents who belonged to a very poor family, had no visible source of income and hence sudden change in their life style and purchase of huge property within a short span of few years gave reasonable belief that the property in question was acquired from the earnings of illegal drug trafficking. It was also alleged that Haji Iqbal Shah Respondent was suspected in smuggling of narcotics during the period of property was acquired.
' It was, thus, prayed that the properties in question may be forfeited to the Federal Government in accordance with law.
6. Upon notice under section 31(1) of. The Act, respondents appeared before the trial Court and filed their written statement. In rebuttal Haji Akhunzada, Haji Lal Said, Pir Abdullah Shah recorded their statements as R.W.I to R.W.3, respectively. The trial Court vide impugned order dismissed the complaint of the appellant. The reasons which prevailed with the learned trial Court for the dismissal of the complaint were that respondents had enough income from the landed property inherited by them from their forefathers and also had flourishing business of "Hundi" between 1975 and 1994, and that the income during this period generated enough funds to- make them able to acquire the properties in question through registered deeds, duly accepted by the Income Tax Department, which significantly declared the respondents to be the legitimate owners of the property in question. Aggrieved by the said order, hence, the present appeal.
7. Mr. Amjad Zia, Advocate, appeared for the appellant A.N.F. And Mr. M. Zahurul Haq, Bar-at-Law advocate for the respondents.
8. At the very outset, learned counsel for the respondents raised certain preliminary objections as to the maintainability and competency of this appeal. Both the learned counsel for the parties stressed that arguments on the merits of the case may be addressed after the settlement of the preliminary issues raised by Barrister M. Zahur-ul-Haq. The main and substantial objections raised were:--
(a) That the appeal under section 43 of the Act could only be filed by any person aggrieved of the order of Special Judged and that A.N.F. Could not be considered a person as contemplated under section 43 of the Act, therefore, the appellant cannot be termed as an aggrieved person and thus, right of appeal cannot be extended to A.N.F.
(b) That the present appeal was not competently filed by a person authorized under the law.
Referring to section 47(1) of the Act, the learned counsel insisted that Mr. Amjad Zia is only a Special Prosecutor who is authorized to appear before the Special Judge and has no authority to file this appeal or appear before this Court. The learned counsel maintained that by virtue of subsection
(2) of section 47 of the Act, only Law Officer appointed under the Central Law Officer Ordinance, 1970 are competent to conduct proceedings before the Special Appellate Court.
(c) that the order passed under section 32 of the Act in favor of the respondents tan amounts to an acquittal, therefore, an appeal under section 417, Cr.P.C. Against the acquittal could be filed, in that, the applicability of provisions of Criminal Procedure Code are not excluded.
9.. Controverting the objections raised by Barrister M. Zahurul Haq, Mr. Amjad Zia appearing for the appellant contended that it has been categorically provided in section 43 of the Act that any person aggrieved of the order of Special Judge could move the Special Appellate Court in appeal and since the appellant, A.N.F., is an aggrieved party has rightly filed the appeal. As for second objection, the learned counsel submitted that he has been specially appointed and authorized through special power of attorney to plead the case of the appellant, therefore, he has competently filed the appeal. As for the third objection, the learned counsel argued that the impugned order could not be considered as an acquittal as no punitive provision is provided in the Act and that the respondents are never termed as "accused" persons in the case. Only forfeiture of the property is the requirement of the relevant section.
10. The first question that needs to be determined is the definition of "person" and whether appellant falls within the definition of word "person". To properly appreciate the point in issue, it would be expedient to reproduce provisions of section 43 of the Act:-- "Section 43. Appeal--- (1) 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 shall be final.
(2) The provisions of the Limitation Act, 1908 (IX of 1908), shall apply in an appeal filed under subsection (1)."
11. The words "any person" though have been mentioned many a times in the different sections of the Act, but its definition is not available in the Act itself. However, under section 2(a) "associate" in relation to a person has been given. In such a situation we may refer to the definitions of a person given in the different provisions of law.
Under clause (39) of section 3 of the General Clauses Act, the word "person" "shall include any company or association or body of individuals, whether incorporated or not". The expression "person" includes not only natural person but also a juristic person. Chambers Twentieth Century Dictionary defines it as "a living soul or self-conscious being: a personality: a human being.
According to Cochran's Law Dictionary, "person means "any body capable of having and becoming subject to rights; a human being, also called natural person. (2) An artificial person, or corporation".
In conclusion, none of the above definitions suggests word "person" includes the State. It refers only to an individual.
12. In the case of The Kapur Textile Finishing Mills v. Province of East Punjab AIR 1954 Pb. 49 where the question was whether the State is entitled to claim protection under section 43 of the East Punjab Public Safety Act (5 of 1949), it was held that the word person in section 43 did not include the word "State", therefore, there was no bar to a suit against the State. Similar question was raised in Andhra Pradesh High Court in case Sardar-e-Aali Zaria Nazim v. Athar AIR 1957 And. Pra. 714, the Honorable Judge Jaganmohan Reddy, to whom appeal was referred on difference of opinion between Qamar Hasan and Kumarayya, JJ., on the maintainability of the suit filed by the respondent against the appellant, who taking guidance from the observations of Lord Black-Burn in Pharmaceutical Society v. London and Provincial Supply Association (1880) 5 AC 857 (J) observed that "in my view, on a reading of section 2(43), (Hyderabad General Clauses Act) the office or the Government Department is not a person not only because it is not included in the said definition but because it is neither a natural person nor an artificial person, nor a legal person. If this is so, how can the Nazim Umoor-e-Mazhabi be considered either as a natural person or as an artificial person or a legal person or a corporation sole?"
13. 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 lqbal, J. In Sajjad Haider v.
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.
14. I am also alive to the query that the word 'any' excludes limitations, restrictions of qualifications.
It, no doubt, connotes wide generality but when we get back to the word any person used in the different provisions in the Act itself, it is found to have been used to represent a person whose property is to be forfeited. Here we may like to refer to different sections of the Act.
"Section 3(1). Preventive detention.--- In order to maintain supplies essential to the community, if the Federal Government or a Provincial Government is satisfied that for preventing any person from indulging in smuggling, it is necessary to detain him, it may by an order in writing, direct the arrest and detention of such person for such period as may, subject to the provisions of this Act, be specified in the order .. "
Section 30(1). Property acquired by smuggling not to be held.--- (1). It shall not be lawful for any person to hold, either in his own name or in the name of any relative or associate, any property acquired by smuggling ...
Section 31(1). 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. ..
' Section 35. Transfer of certain property void.---
(1) .
(2) Any person who transfers any property, or creates a charge thereon, in contravention of subsection (1) shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to fine.
' Section 39(2) If any person to whom a direction has been issued under subsection (1) refuses or fails to comply with such direction, the Special Judge may cause possession of the property to be taken and for that purpose may authorize use of such force as may be necessary."
In all the aforesaid provisions of law, "any person" refers to a person against whom the action is to be taken and therefore, section 43 of the Act is to be C interpreted in the same manner and style.
Here the question may arise as to what remedy was available to the appellant in such-like situation.
14. It appears that the Legislature in its wisdom has not provided any relief to the Federal Government which could have very conveniently been extended to the appellant A.N.F. (Federal Government) as it did in section 185(F) of the Customs Act, 1969 (IV of 1969) by virtue of amendment in section 51 of the Act, which reads as under:-- "Section 185-F. Appeal to Special Appellate Court.---
(1) Any person, including the Fedetal Government, aggrieved by any order passed or decision made by a Special Judge under this Act or under the Code of Criminal Procedure, 1898, (Act V of 1898), may, subject to the provisions of Chapters XXXI and XXXII of the Code, within sixty days from the date of the order or decision prefer an appeal or revision to the Special Appellate Court, and in hearing and disposing of such appeal or revision such Court shall exercise all the powers of the High Court under the said Court."
' A similar question arose before the Lahore High Court in case of Nawabzada Malik Habibullah Khan Tiwana and others v. The Province of West Pakistan and another PLD 1967 Lah. 533 where controversy in issue was, whether exemption from land revenue or grant to retain the land revenue was Jagir in the ordinary sense of the word. The Honorable Judge of Lahore High Court taking into consideration the definition of "Jagir" given in section 2(1) of the Punjab Abolition of Jagirs Act, 1952 held that "it is well-established that when in any Statute word ' include' or ' includes' is used, then it is intended to enlarge the ordinary meaning of that word". Similarly, in Emperor v. Jiand and another AIR 1928 Sindh 149, De Souza, A.J.C. Held that:-- "It is a well-known rule of interpretation that the word ' includes' is used as word of enlargement and ordinarily implies that something else has been given beyond the general language which precedes it; to add to the general clause a species which does not naturally belong to it."
15. Thus, the argument of Barrister Zahurul Haq appears to carry weight that words to be interpreted and understood, as used and mentioned in the Act itself unless enlarged to something else. It is thus, apparent that section 43 of the Act is a bar to the appeal filed by the appellant A.N.F.
16. Reverting to the second objection, the Special Appellate Courts are constituted by the Federal Government through notification in the official gazette by virtue of section 46 of the Act. Under section 47 of the Act only Special Law Officers, who are appointed under the Central Law Officers Ordinance, 1970 (VII of 1970) are competent to conduct proceedings before the Special Appellate Court on behalf of the Federal Government. In view of section 2 of Central Law Officers Ordinance, 1970, only President is empowered to appoint such Law Officers for such period as determined by him. There is no such provision in the Act that provides provision of privately engaged counsel in the case, who could conduct proceedings for or on behalf of the Federal Government. In this context reference may be made to the ruling of the Supreme Court in the case of State v. Haneef Ahmed 1994 SCMR 749 wherein the identical situation, the Honourable Supreme Court observed that an appeal against the acquittal of accused filed by Assistant Advocate-General under section 417, Cr.P.C. On behalf of the State was not competent as office of the Advocate-General is distinct and his functions and duties are different from the duties of A.A.-G. It was held that Assistant Advocate-General could not be treated as Public Prosecutor in terms of section 492 of Criminal Procedure Code.
17. Coming to the third objection, that dismissal of any charges or complaint brought against the person involved therein shall amount to an acquittal and that any order passed by the Special Court exonerating a person for his action allegedly illegal and unlawful shall be deemed to be an acquittal appears to have weight. As discussed above, the right of appeal is not available in the provisions of the Act. Therefore, it being a substantive right cannot be claimed by implications.
18. Argument of Mr. Amjad Zia, that no punishment is suggested in the Act for the person who has acquired the property through smuggling has no force. If a person is held guilty under section 31 of the Act and is declared to have acquired the property through illegal means and drugs money, he could be tried under section 156(1) of the Customs Act, 1969 or any other law which may result into his imprisonment for life or in some cases, to death. Therefore, the acquittal appeal under section 417, Cr.P.C. Could be filed against the impugned order.
I may, in passing, mention here that under section 7 of Suppression of Terrorist Activities Act, 1975, the State was not provided any right of appeal against the acquittal order recorded by a Special Court constituted there under but by the Suppression of Terrorist Activities (Special Courts Amendment) Act, 1975 (III of 1976) right of appeal against acquittal has been made available.
19. In view of all what has been discussed above, this appeal is held to be incompetent and not maintainable which is hereby dismissed. Parties are left to bear their own costs.