' SHAH JEHAN KHAN, J.--- Nur Alam petitioner has filed this petition seeking a declaration that order/notice, dated 15-5-1995 issued by Special Judge empowered under Prevention of Smuggling Act, 1977 (hereinafter to be called Special Judge) directing him to appear before the said Judge on 19-6-1995, is without lawful authority and of no legal effect. It is averred in the petition that he is resident of Landi Kotal a part of Khyber Agency situated in Federally Administered Tribal Area
(FATA) as defined under Article 246 of the Constitution. Haji Muhammad Ayub Khan Afridi is the brother of his grandfather namely Shah Zamir. The Director-General, Anti-Naroctics Task Force (hereinafter to be called ANTF) furnished certain information indicating the involvement of said Haji Muhammad Ayub Khan Afridi in smuggling. The Special Judge on receipt of information passed the impugned order and issued notice to him copy whereof was ordered to be sent to the petitioner, his three brothers and other relatives of Haji Muhammad Ayub Afridi. The Special Judge vide impugned order/notice has directed the petitioner and his relatives mentioned in the notice to show-cause as to why the properties mentioned in the notice should not be declared as property acquired by smuggling and liable to forfeiture in favour of Federal Government, also directed to intimate the sources of their income and the assets by means of which the said properties were acquired. The Special Judge issued the impugned notice/order purportedly under section 31 of the Prevention of Smuggling Act, 1977 (hereinafter to be called Act XII of 1977).
2. It is alleged in the petition that petitioner being a resident of FATA where Act XII of 1977 has no application as required under Article 247 of the Constitution. The Special Judge is empowered to issue notice to a person residing within his territorial jurisdiction only. The assumption of jurisdiction and issuing notice to the petitioner based on information furnished by ANTF was without lawful authority as the said force was created under the Ordinance promulgated in 1995 which was repeatedly repromulgated from time to time before the expiry of four months from the date of promulgation which practice has been declared un-Constitutional by the august Supreme Court of Pakistan in a case .Reported in The Collector of Customs v. New Electronics PLD 1994 SC 363. Further alleged that the properties mentioned in the notice were acquired much before the enactment of Act XII of 1977 which has got no retrospective effect as envisaged in Article 12 of the Constitution and the impugned order/notice is a threat to the fundamental rights of the petitioner guaranteed under Articles 23 and 24 of the Constitution. By issuing the impugned notice the Special Judge has seriously damaged the dignity of the petitioner guaranteed under Article 14 of the Constitution.
3. The validity of the impugned notice was also challenged on the strength of proviso attached to section 31 of Act XII of 1977.
4. The petitioner has also alleged that summary of the information furnished by ANTF was not sent to the petitioner alongwith the impugned notice/order in violation of the recognized principle for administration of justice. The vires of Act XII of 1977 were also questioned being harsh, oppressive, unreasonable and violative of the fundamental rights guaranteed under the Constitution with reference to section 33. The petitioner could only be served with a notice after holding an inquiry regarding the information furnished by ANTF against Haji Muhammad Ayub Afridi with the conclusion of its correctness.
5. The learned counsel for respondents raised two preliminary objections regarding maintainability of the writ petition. Firstly on the ground that no writ lies against an interim order/interlocutory order and secondly that in view of statutory right of appeal provided under section 43 of Act XII of 1977 which is also an efficacious and adequate remedy no writ petition lies. To elaborate his first contention he read the impugned order wherein it is stated that there are reasons to believe that the properties mentioned in the impugned order/notice have been acquired by smuggling and the petitioner and others relatives/associates mentioned in the notice were called upon as follows:-- ' "As to why--
(i) the whole of these properties should not be declared to be properties acquired by smuggling
(ii) be not forfeited to the Federal Government and
(iii) they should also indicate the sources of their income, the income and the assets out of which or by means of which they have acquired these properties, the evidence on which they rely upon besides other relevant information and particulars."
6. The aforesaid directions are prima facie interim in nature and no final order has yet been passed against the petitioner. In this regard he relied on:-- ' Mir Nabi Bakhsh Khan Khoso v. Branch Manager, N.B.P. 2000 SCMR 1017, ' Virasat Ullah v. Bashir Ahmad 1969 SCMR 154, ' National Steel Rolling Mills v. Province of West Pakistan 1968 SCMR317, ' Abdul Razzak v. Government of Pakistan 1980 PCr.LJ 375 and ' Muhammad Boota and 77 others v. Commissioner PLD 1973 Lah.
580.
7. As regards the second objection regarding maintainability he referred to section 43 of Act XII of 1977 which reads as follows:-- "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 thereon shall be final.
(2) The provisions of the Limitation Act, 1908 (IX of 1908), shall apply to an appeal filed under subsection (1)."
8. Section 46 provides for the Constitution of Special Appellate Court whereunder the Federal Government by Notification in the Official Gazette constitute Special Appellate Court/Courts consisting of a person who is a sitting Judge of the High Court is to be appointed after consultation with the Chief Justice of High Court concerned. The Special. Appellate Court has been constituted and is functioning as is evident from impugned judgments in Writ Petitions Nos.1275 of 1996, 1276 of 1996, 1285 of 2000 and 1286 of 2000. Under Article 199 of the Constitution when an adequate remedy is provided by the law the High Court never exercises its jurisdiction even if vires of law have been challenged. In this regard he relied on Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly, N.-W.F.P. And another PLD 1995 SC 66.
9. To meet the first preliminary objection regarding maintainability of the writ petition on the ground that the impugned order being an interim/interlocutory cannot be made subject-matter of writ petition the learned counsel for petitioner submitted that the High Court could be competently approached under its Constitutional jurisdiction against a void Order whereby the guaranteed right of the citizen is at stake. The impugned order/notice is a wrongful exercise of the powers of the Special Judge under section 31 and the guaranteed rights of the petitioner under Articles, 14, 23 and 24 of the Constitution have seriously been infringed, the High Court has rightly been approached for his rescue against a void and illegal order. He relied on S. Zafar Ahmad v. Abdul Khaliq PLD 1964 (W.P.) Kar. 149, Lt.-Col. Mohsin Shah v. Mst. Qaseema Wahid and 4 others PLD 1995 Lah. 385 and Mst. Shereen Masood v. Malik Naseem Hassan, Family Court 1985 CLC 2758:
10. As regards the second objection on the ground of availability of right of appeal under the statute he submitted that without resorting to filing an appeal in the hierarchy under the statute an aggrieved person can approach the High Court through a Constitutional petition where the impugned order' is prima facie void and without jurisdiction. In this regard he placed reliance on Ch. Ghulam Ali v. Commissioner Lahore Division PLD 1981 Lah. 368, Salooka Steels Ltd. v. Director- General, Coast Guards of Pakistan PLD 1981 Quetta 1, Sindh Employees' Social Security Institution v.
Dr. Mumtaz Ali Taj and another PLD 1975 SC 450, Messrs S.A. Haroon and others v. Collector of Customs, Karachi PLD 1959 SC (Pak.) 177.
11. Since the vires of various provisions of Act XII of 1977 were challenged on the strength of PLD 1994 SC 363, a notice to Attorney-General of Pakistan was issued under Order 27-A of the C.P.C. On 13-6- 1995 but the Attorney-General never appeared in the case, however, different Deputy Attorney- General at Peshawar used to appear on behalf of Federal Government. On the date of final hearing the Deputy Attorney-General put his appearance with the submission that no relief against the statute Act XII of 1977, has been prayed for but the relief is restricted only to the impugned notice, dated 15-5-1995.
12. Even if there is no prayer regarding vires of Act XII of 1977, the averments made in the body of petition whereby the vires have been questioned on the ground of violation of fundamental rights guaranteed under the Constitution cannot be overlooked. In the impugned judgment of Special Appellate Court in Writ Petition No,1275 of 1996 in para.10 the Constitutional points raised were left unresolved being subject-matter in the instant Constitutional petition. Thus, it is needed to be resolved.
13. The petitioner has challenged the vires of Act XII of 1977 being in conflict with Article 12 of the Constitution. Under the said Article a restriction has been imposed on the law-making authorities not to make a law whereby an act or omission already not punishable at the time of its commission could be made punishable with retrospective effect. Article 12 of the Constitution relates to law regarding an offence and has got no concern with the civil rights. Through Act XII of 1977 the law enacted under Chapter, IV relates to the forfeiture of property acquired by means of smuggling which may be treated as infringement of civil right but has no implication of making an act or omission as an offence which was not already an offence. The fundamental right guaranteed under Article 12 of the Constitution was considered qua the Political Parties (Second Amendment Ordinance, 1976 (Ordinance XIX of 1976) which was given a retrospective effect. The Division Bench of the Lahore High Court in a case of Mir Ghous Bakhsh Bizenjo v. Islamic Republic of Pakistan PLD 1976 Lah. 1504 observed as follows:-- ' "Reverting again to the scope of section 8 if the law on the subject could be made by the Parliament/President it cannot be struck down merely on the ground of its retrospectivity because it is well-settled that an appropriate Legislature can always make retrospective laws. Lastly on this aspect of the matter if the petitioner relies on Article 12 of the Constitution then the said Article itself excepts the abrogation or subversion of a Constitution in force at any time since 23-3-1956. The judgment of the Supreme Court lucidly brings home such activities to the NAP and its leaders. We are really surprised as to how in the face of the aforesaid findings the petitioner has dared to invoke Article 12 in his favour which does not prohibit making of retrospective laws with regard to type of acts which have been held to have been committed by the NAP and its leaders which includes the petitioner."
14. It is averred in the petition that section 31 whereunder the impugned notice was issued is against the fundamental rights of petitioner guaranteed under Articles 23 and 24 of the Constitution which read as follows:-- "23 Every citizen shall have the right to acquire, hold and dispose of property in any part of Pakistan, subject to the Constitution and any reasonable restrictions imposed by law in the, public interest.
24. Protection of property rights.---(1) No person shall be compulsorily deprived of his property save in accordance with law.
(2) No property shall be compulsorily acquired or taken possession of save for a public purpose, and save by the authority of law which provides for compensation therefor and either fixes the amount of compensation or specifies the principles on and the manner in which compensation is to be determined and given.
(3) Nothing in this Article shall affect the validity of--
(a) any law permitting the compulsory acquisition or taking possession of any property for preventing danger to life, property or public health; or
(b) any law permitting the taking over of any property which has been acquired by, or come into the possession of, any person by any unfair means, or in any manner, contrary to law; or
(c) any law relating to the acquisition, administration or disposal of any property which is or is deemed to be enemy property or evacuee property under any law (not being property which has ceased to be evacuee property under any law); or
(d) any law providing for the taking over of the management of any property by the State for a limited period, either in the public interest or in order to secure the proper management of the property, or for the benefit of its owner; or
(e) any law providing for the acquisition of any class of property for the purpose of--
(i) providing education and medical aid to all or any specified class of citizens; or
(ii) providing housing and public facilities and services such as roads, water supply, sewerage, gas and electric power to all or any specified class of citizens; or
(iii) providing maintenance to those who, on aaccount of unemployment, sickness, infirmity or old age, are unable to maintain themselves; or
(f) any existing law or any law made in pursuance of Article 253.
(4) The adequacy or otherwise of any compensation provided for by any such law as is referred to in this Article, or determined in pursuance thereof, shall not be called in question in any Court."
' The right of a citizen to acquire, hold and dispose of or to be deprived of any property by a citizen is subject to various provisions of the Constitution. Under Article 23 reasonable restrictions can be imposed on the right to acquire, hold and dispose of a property in the public interest, while under Article 24 a citizen can be deprived of his property through legislation under its sub-Article (3).
Under Article 24(3)(b) legislation could be made for taking over any property which has been acquired by any person through unfair means or in any manner contrary to law.
15. The then Law Minister who was also designated Chairman of the Constitution Committee by the then Government while bringing for the first time the law regarding forfeiture of the property acquired through illegal means stated in the parliament as follows:-- ' "We have said any property which has been acquired by unfair or unlawful means shall be liable to confiscation, once again under the law by Parliament and not by executive action. We know wealth has been acquired unlawfully and people have evaded taxes in this country. Crores and crores -a rupees which should come into the public revenue have not come into the public revenue. Black marketing and hoarding have taken place. People have made property even by smuggling and sucking blood of the working masses by unfair means and unlawful means. Why should people be permitted. Does Islam permit us to keep the property which is acquired through ill-gotten means. I have thought Halal Ki Kami is permitted and not Haram Ki Kamai. There is vehement emphasis on this. Why should property which has been acquired by unlawful or unfair means be permitted to be kept. Apart from that, we have said that laws which have been made for acquisition of property were meant to enable education to reach the people or any backward class or to enable medical aid or housing facility to reach the people of Pakistan or maintenance allowance to be available to ,sick, infirm old and invalid people. These laws shall not come under the operation of fundamental rights. Even if they violate them these shall not be challengeable in the Court of law and apart from that what we have said is that compensation may be fixed, mode of compensation may be fixed by law. Executive authority may be directed to give compensation, but whatever is the compensation, award shall not be challengeable in the Court of law."
16. The preamble of Act XII of 1977 alluded its purpose which reads as under:-- ' "It is expedient to provide for effective prevention of smuggling and for matters connected therewith."
' The phrase "smuggling is injurious to the whole of "society" cannot be disputed. Steps and measures taken by Government to curb, eliminate and effectively control the smuggling are certainly for the public interest in general. The law enacted for such purpose and in accordance with Constitution is within the competence of legislative body which cannot be struck down by Courts which are itself the creation of Constitution.
17. Though there were already in existence various laws for the prevention of smuggling but proved ineffective which necessitated the enactment of Act XII of 1977 for effective prevention of smuggling as stated in its preamble. The Act has not only been given overriding effect on the existing laws, under its section 49 which reads as under but also has provided for forfeiture of properties acquired by means of smuggling:-- "49. Act to override other laws.-- The provisions of this Act except those of Chapter VI, shall have effect notwithstanding anything contained in any other law for the time being in force."
' Under its Chapter IV for the first time in the history of the country the property acquired through smuggling was made liable to forfeiture to the ,Federal Government. This chapter has been enacted under the strength and powers derived from Article 24(3)(b) which was also introduced for the first time of Constitutional History of the Country. The right of a citizen to hold property is subject to section 30 which reads as under:--
30. 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.
(2) Any such property held in contravention of the provisions of subsection (1) shall be liable to be forfeited to the Federal Government in the manner hereinafter provided."
' The proceedings against any person within his jurisdiction holding property which is reasonably suspected to have been acquired by means of the assets of smuggling are to be initiated under section 31 which provides the following procedure:-
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.
' Provided that no such notice shall be issued unless, having regard to the value of his assets, his known sources of income, his style of living, his previous involvement in smuggling or conviction under. Any law relating to the prevention of smuggling and other similar factors, the Special Judge has reason to believe (which reason be shall record in writing) that there is sufficient ground for proceeding against such person.
(2) A notice issued under subsection (1) shall, among other things, require such person to indicate the sources of his income, the income and assets out of which, or by means of which, he has acquired such property, the evidence he relies upon and other relevant information and particulars.
(3) Where a notice under subsection (1) issued to any person specifies any property as being held on his behalf by any of his relatives or associates, a copy of the notice shall also be served upon such relative or associate.'
' The Special Judge notified under section 44 of the Act (ibid) by the Federal Government has got power of the Civil Court under section 37 for summoning and enforcing a person for examination on oath, for requisitioning any document or record or its copy from any Court or office, issuing commissions for examination of witnesses or documents and to receive any evidence on oath. The Special Judge has got vast powers to conduct an inquiry or investigation under section 38 of Act XII of 1977.
18. Subject to the right of appeal under section 43 the notice issued under section 31 cannot be called in question in view of bar contained in section 36. When a notice is served on the person reasonably suspected to be holding property acquired through assets of smuggling in his own name or in the name of his relatives or associates to whom copy of the notice is sent shall prove that such properties specified in the notice were not acquired through smuggling. The Special Judge shall on receipt of reply of the notice hold an inquiry for arriving at a conclusion that the properties mentioned in the notice are or are not acquired through assets of smuggling.
19. The contention that Act XII of 1977 is a harsh and draconian law is not acceptable merely on the ground of definitions of "Property acquired by smuggling under section 2(1)(d), or burden of proof on notice under section 33. Any person who had acquired a property having a market value of Rupees one lac at the time of its acquisition through any lawful means can certainly explain, however, a person who had acquired any property by means of smuggling would have no explanation to offer. The burden placed on the person holding property is synonymous to the provision contained in section 187 of the Customs Act, 1969 whereunder any person who is found in possession of any foreign made item shall prove that he is possessing the same under validly imported documents.
20. Only a serving Sessions Judge or who has been a Sessions Judge could be appointed as Special Judge for the purposes of proceeding under Chapter IV and every order passed by such Special Judge has been made appealable before the Special Appellate Court who shall be a serving Judge of the High Court of the concerned Province. The Act provides sufficient guarantees for the citizen against any mala fide action.
21. The vires of notice issued to petitioner has been challenged on the ground that Special Judge has no jurisdiction in view of notification empowering him to act under Act XII of 1977 as petitioner is resident of Tribal Territory and that Act XII has not been extended to FATA under Article 247(7) of the Constitution. The objection regarding jurisdiction of the Special Judge is misconceived inasmuch as it is the property and not the person which can be looked into for determining jurisdiction of the Special Judge. The properties mentioned in the notice as detailed below are undisputedly falling within the limits of the jurisdiction of Special Judge. The learned Special Judge has not included these properties owned by notice in various parts of the country and even beyond the State boundaries there is evidence available on the record furnished with the information by respondent No,2. Neither those properties were included in "information" furnished nor mentioned in the impugned notice nor any action has been taken against in that respect.
22. Before parting with this judgment it would not be out of place to say that from the record produced with the information that petitioner is not only a close relative of the noticee Muhammad Ayub Afridi but has also provided much assistance to him in his smuggling of narcotics. The following para. From the statement of Ashraf Naseer. Abbassi dated 16-6-1990 is reproduced:-- ' "He is the only member of Haji Ayub's family who is educated and is a student of Engineering University, Peshawar. Haji Ayub has tended and reared him since his childhood. He is the main man of Haji Ayub rather his right hand man. He controls all the 'regal and illegal business of Haji Ayub at Peshawar. He has crores of rupees property registered in his name in Frontier Province. Apart from this Haji Ayub Afridi and Anwar Khattak have also got registered in his name properties at Lahore and Karachi. It is a rumour in their circle that after the death of Haji Ayub he will be handling with all the legal and illegal businesses of narcotics. In other words he will succeed Haji Ayub. His age now is about twenty-five or twenty-six years. He is yet not married. He is profligate of high order but is intelligent, clever and crafty too. He is very careful in illegal deals. He is also involved in the printing of fake bank notes. One of their Printing Presses is at Pabbi and the other is located in Darra. These printing presses print U.S. Dollars, Saudi Rials and Pakistani Bank Notes. The distribution of fake currency is supervised and handled by him.
' Note. 'I have perhaps stated earlier that Noor Alam is the nephew of Haji Ayub Afridi but he is actually son of Hunar Khan son of Shah Zamir --- a real brother of Haji Ayub. Noor Alam is, therefore, grandson of Haji Ayub by virtue of this relation. He has, however, been tended and raised from his childhood by Haji Ayub Afridi."
' In the report of International Criminal Police Organization Interpol regarding Project "Romeo" which was produced as F-2 alongwith the information submitted by respondent No,2 consisting from page 736 to 833 it is highlighted at page 801 as follows:- ' "He has a brother called Afridi f/ns Shah Zameer Khan, who is managing a transport company.
This brother has a grandson called Khan f/ns Noor Alam, who has been brought up by Afridi f/ns Haji Muhammad Ayub Khan. Khan f/ns Noor Alam has been educated at the Engineering University of Peshawar and is now Afridi's right hand man. He is responsible for the legal and illegal business of his great-uncle and owns in his name real estate in the N.-W.F.P. Worth several million rupees. He also owns real estate in Karachi and Lahore. Khan f/ns Noor Alam is printing counterfeiting money in clandestine printing shops, one is located in Pabbi, the other in Bara. He is printing US Dollars, Riyals (currency of Saudi Arabia) and Pakistani currency and is managing the circulation of the counterfeit money."
23. After hearing the learned counsel for the parties and going through the record we are of the view that in view of interlocutory nature of the impugned order and the statutory right of appeal provided under section 43 of Act XII of 1977 this writ petition is not maintainable. The precedent case laws cited on both the sides are distinguishable on facts but the judgment reported in Abdul Razzak v. Government of Pakistan 1980 PCr.LJ 375 is in identical circumstances which can be followed in the present case. In the said case Abdur Razzaq petitioner challenges the seizure and detention of prize bonds by the Customs Authorities in ordinary proceedings under section 13 of Act XII of 1977 before the Special Judge on the ground that there is no provision for seizure and detention during the pendency of proceedings. Though the possession of the seized prize bonds was admitted but the explanation for its possession was offered. After hearing the learned counsel for the parties the Full Court laid down the following dictum:-- ' "In the present case the power to detain the property reasonably suspected to be acquired by smuggling is, to our mind, incidental or ancillary to the jurisdiction of the Special Court under the said section 31, for otherwise proceedings under it will become fruitless and irrelevant. To this Mr. Sarni Ahmed, the learned counsel for the petitioner replied that to meet this contingency section 34 of the Act provides that the property mentioned in a notice under section 31 shall not be transferred by any mode whatsoever pending its hearing and such transfer will be void as against the Government in whom such property will vest on a forfeiture order made under section 32 and that under its subsection (2) a person who transfers any property shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to fine. Section 34 to our mind gives at best a limited protection and, therefore, cannot be regarded as any substitution of the ancillary power of every Court to safeguard the interests of parties before it during the pendency of proceeding. We are further of the view that section 34 makes it necessary to have recourse to this ancillary power for it will avoid hardship to innocent purchaser of such property.
(4) We are even otherwise not inclined to interfere in our Constitutional jurisdiction for the order is not only otherwise just and fair but is only an interlocutory order.
(5) The result, therefore, is that there is no merit in this petition and it is dismissed in limine."
24. In the instant case the petitioner who was issued copy of notice under section 31, is one of the close relatives and associates of Haji Muhammad Ayub Afridi without surrendering to the Special Court rushed to file the instant Constitutional petition. The petitioner is admittedly close relative of Haji Muhammad Ayub Afridi against whom the ANTF has furnished detail information regarding his involvement in smuggling with close association in smuggling with Mirza Muhammad Iqbal Baig and Muhammad Anwar Khan Khattak to U.S.A., Singapore, Manchester, Hong Kong, Bankock, Canada and Bangla Desh. In the said information the father namely Hunar Khan and grandfather of petitioner namely Shah Zamir have also been found his associates in smuggling. The petitioner has been shown owner of certain properties mentioned in the impugned order alongwith his brothers and Haji Muhammad Ayub Afridi. The information also reveals that Haji Muhammad Ayub Afridi had acquired no property in inheritance except a joint house with his brothers and he joined as Sepoy in Rangers. Being illiterate person his entire business was being run through the petitioner who was provided education by Haji Muhammad Ayub Afridi and all his accounts and dealings were being controlled and supervised by the petitioner. All these informations/allegations require a probe in the matter which can only be done at the trial Court.
25. Notwithstanding the fact that petitioner fails to exhaust his remedy by way of appeal under section 43 of Act XII of 1977, the matter qua the property in the name of petitioner is still sub judice before the Special Judge and the petitioner will have ample opportunity to prove that the properties registered in his name were not acquired through smuggling assets but from a legal source.
12. In view of the discussion made above we found this Constitutional petition not maintainable and the same is hereby dismissed.