IFTIKHAR MUHAMMAD CHAUDHRY, J.- This appeal has been filed under Section 43 of the Prevention of Smuggling Act, 1977 (Act, 1977) against the order dated 10.3.1998 passed by Sessions Judge/Special Judge under the Prevention of Smuggling Act, 1977 whereby complaint lodged by Antinarcotics Force Balochistan through its Director against the respondents with the prayer that properties owned by them or their relatives or associates are reasonably suspected to have been acquired by smuggling within the meaning of Clause-F of Section 2 of the Act, 1977 be forfeited to the Federal Government.
2. Precisely stating facts are that on 27.8.1997 complaint referred to hereinabove was instituted alongwith details of documents indicating ownership/proprietary rights of Haji Habibullah and others in respect of the property owned by the respondents as well as the copies of FIR to prima facie establish that some of them have remained involved in smuggling, therefore, they acquired these properties from its income. However, after the death of Haji Habibullah an advertisement was published for information of legal heirs who were not impleaded in complaint. After publication learned trial Court called upon the prosecution to prove its case against the respondents vide order dated 8.11.1997. This order, however, was challenged before this Court in Smuggling Appeal No. 01/1997 which was disposed of on 12 1.1998. Relevant para therefrom is reproduced hereinbelow:- "In may opinion without entering into merits of the case or maintainability of the appeal it would be sufficient to observe that as far as observations made by the trial Court with regard to the fact that FIRs are not sufficient to establish that property has been acquired through smuggling are to be tentative in nature because the operative para indicates that unless evidence is not led by appellant no final order can be passed.
Learned counsel for the respondent also agreed that these observations are of tentative nature and cannot form basis for final determination of the complaint; For the foregoing reasons and observations made hereinabove appeal is dismissed. However, the trial Court is directed to proceed in accordance with law in terms of the concluding para of the impugned judgment."
It seems that after remand of the case appellant produced PW-1 Kamran Yousaf son of Muhammad Yousaf, AS1, Police Station Sariab who got recorded FIR (Ex.D/1-A) in pursuance whereof respondent No. 2 Amanullah son of Habibullah and Qasim were arrested and after the trial they were convicted/sentenced for 2 years' R1 and fine of Rs. 10,000/- each. It so happened that thereafter prosecution directed to appellant to produce all their witnesses, It may be noted that on the date of hearing i.e. 05.3.1998 respondents admitted ownership of the properties, therefore, there is no need to prove this fact. On this the matter was adjourned for 10.3.1998 with directions by the trial Court to appellant to produce witnesses according to the written statement, however, subject to the fact that documents pertaining to the property had been admitted. The record reveals that on this date no one appeared on behalf of appellant and an application was moved for adjournment on the ground that the Advocate was busy, as such vide impugned order learned trial Court dismissed the complaint, concluding para therefrom is reproduced hereinbelow:- "Whatever the case may be, it is a fact that prosecution is very slow in producing the evidence before the Court. The witness produced has simply endorsed the FIR. He orally submitted that perhaps the case has been decided and accused has been convicted for two years' R.I. It is observed that list produced do not contain any word that this property has been acquired by means of smuggling. The word smuggling has been defined under Section 2 of the Customs Act.
On the basis of allegations and interpretation of smuggling no case is made of that respondents have acquired the properties mentioned in the list of the allegations through smuggling. All the allegations are in respect of narcotics and arms, but there should have been some facts that respondents collected such amount whereby the mentioned properties were purchased. None of the witnesses listed by the prosecution has been specifically nominated to disclose such facts. The case was filed on 18.9.1995. Sufficient time and opportunities have been provided to the prosecution, therefore, in my view further opportunities cannot be provided."
3. Against the above order instant appeal has been filed u/S. 43 of the Act, 1977. The learned counsel for parties Mr. Tariq Mehmood and Fakhar-ud-Din G. Ibrahim for appellant and respondents respectively filed their written arguments.
4. On behalf of respondents objection on maintainability of the appeal has been raised to the effect that u/S. 43 appeals are competent against the orders of a Special Judge passed u/Ss. 31(3), 32 and 34. It was further mentioned that admittedly impugned order is not covered even u/S. 32, therefore, appeal is not competent.
5. On the other hand learned counsel for appellant attempting to meet with the. Objection of learned counsel mentioned in the written arguments that Section 43 itself did not restrict the scope of filing of appeal, therefore, according to him the appeal is competent because order falls u/S. 32 of the Act, 1977 as it tentamounts to withdrawing the notice, reliance was placed on 1992 SCM R 372.
1991 SCM R 2457 and PLD 1974 Lahore 4476.
6. I have gone through relevant provisions of law. It would be appropriate to re-produce Section 43 of the Act, 1977:- Section 43:-- Appeal (1) Any person aggrieved by an order of the Special Judge passed under Section 31, Section 32 or 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 held under subsection (1)".
Plain reading of above provision suggest that appeal is competent if orders are passed u/Ss. 31, 32 and 34. As far as Section 31 is concerned it pertains to issuing of a notice to a person holding property suspected to be acquired by smuggling and the person to whom the notice is issued is required to indicate the sources of his income, and assets of of which or by means of which he has acquired such property, the evidence he relies upon and other relevant information and particulars, It may be noted that in terms of this section notice was issued to the respondents reference whereof has been made hereinabove and the perusal of notice also suggest that it was in consonance to the provisions of this section. On receipt of the notice no objection was raised by the respondents as they did not contend as to why notice has been issued to them or satisfaction expressed by the Court is not sufficient to call for action against them, therefore, it can safely be held that at of issuance of notice by the Special Judge was conceded to by respondents. Thus, after this stage Section 32 of the Act, 197.7 comes into play. According to which the Special Judge may after considering the explanation, if any, notice issued u/S. 31 and the evidence recorded or produced before him and after giving the relative or associate of such person in case a copy of the notice has also been served upon him reasonable opportunity of being heard by an order recorded a finding whether the property to which the notice relates is property acquired by smuggling and on having satisfied the Special Judge that any of the properties mentioned in the notice issued u/S. 31 or properties by smuggling, but he is not able to specifically identify such property then it shall be lawful for him to specify the properties which to the best of his judgment are' properties acquired by smuggling and to record a finding accordingly under sub-section (1) and where a Special Judge records a finding under subsection (1) that any property is the property acquired by smuggling, he shall declare that such property shall subject to the provisions of this chapter stand forfeited to the Federal Government and vest in that government free from all encumbrances.
7. In the instant case undoubtedly on receipt of the complaint learned Special Judge found himself satisfied that a notice is required to be issued, therefore, once a notice has been issued it was obligatory/incumbent upon the respondents to have satisfied the Court by producing evidence that the property details whereof were mentioned in the list has not been acquired by them by smuggling because u/S. 33 of the Act, 1977 the burden was upon the respondents to clear that the properties owned by them, through relatives etc. Has not vested in them from the income of the smuggling. But in the instant case learned trial Court having adopted this procedure had called upon the appellant to establish/prove that respondents have acquired these properties through smuggling. Thus, the question would be that learned Presiding Officer by adopting a procedure to dispose of the complaint contrary to Section 32 had dismissed the complaint, therefore, against such order appeal would be competent or otherwise.
8. Mr. Fakhar-ud-Din G. Ibrahim learned counsel stated that Section 43 of the Act, 1977 does not contemplate a negative finding that the property is not acquired by smuggling and if the Legislature had appended the word "or, not" after the word "whether" it would have been possible to argue with justification that the finding may be either positive or negative and the order made appealable in other case, but in the present case the finding to be given is that the property has been acquired by smuggling and if an order was to that effect it would be appealable but not otherwise.
9. On the other hand Mr. Tariq Mehmood learned counsel referred to dictionary meaning of the word "whether" according to which introducing the first of two alternatives word phrases or clause, the second being introduced by or (in the case of clauses sometime by or whether), therefore, he was of the opinion that by use of word "whether" the law maker was conscious that order can be that the property is acquired by smuggling or otherwise.
10. In my opinion under sub-section (1) Section 32 word "whether is of great importance. As per its ordinary dictionary meaning it is to be used both in negative and positive purpose. For instance, the Special Judge may come to conclusion after considering the explanation of the person to whom the notice was issued or after recording evidence that the property in respect of which notice relates is not acquired by smuggling. Similarly, positive finding can also be given, therefore, to meet any of both the circumstances appeal would be competent u/S. 43 of the Act, 1977.
11. At this juncture it would be beneficial to make reference to the case of "Liaquat AH and 11 others Vs. The State" (1992 SCM R 372). In this case some of the accused persons were convicted for the criminal charge; whereas few of them were acquitted, therefore, state filed appeal against their acquittal on which the acquitted accused persons filed preliminary legal objections inter alia that appeal filed by Deputy Attorney-General on behalf of Attorney General as provided under Sub- Section (5) of Section 13 of the Ordinance (Special Courts for Speedy Trials Ordinance, 1991) is not competent. Honourable Supreme Court while attending this question held as follows:- "On the basis of above Sub-Article (5) of Article 212-B of the Constitution, it was contended by him that under the Ordinance, an appeal could have been provided against a sentence or a final order of a Special Court and not against an acquittal judgment as it has not been provided in the above-quoted Sub-Article (5) of Article 212-B of the Constitution which empowers the making of a provision for an appeal in the law which was to be enacted. The above contention seems to be untenable as the words "final order of a Special Court" will include an acquittal judgment as well.
The use of the word "sentence" preceding the words "or final order of a Special Court" does not imply that the law makers intended not to provide an appeal against an acquittal judgment. The word "conviction" is generally used in contrast to the word "acquittal" and not the word "sentence" and, therefore, the omission to employ the words "conviction and acquittal" in above Sub-Article
(5) of Article 212-B of the Constitution is of no consequence. If we were to accept the above contention of M. Abdul Aziz Qureshi, it would lead to an illogical conclusion that a provision for providing of an appeal in the relevant law could have been made against a sentence and not against a conviction, which could not be the intention of the law makers, In any case, we are not competent to hold that sub-section (5) of Section 13 of the Ordinance is ultra vires the provision of Sub-Article (5) of Article 212(b) of the Constitution, In this connection, reference may be made to the judgment of the Supreme Court in the case of Mr. Fazlul Quader Chowdhry and others v. Mr Muhammad Abdul Haque (PLD 1963 SC 486), in which inter alia it has been held that neither the Chief Election Commissioner nor the Speaker could have jurisdiction to question the Constitutionality of the impugned order issued by the then President in exercise of Article 224 of the erstwhile Constitution of Pakistan, 1962. Reference may also be made to the case of the State \/s. Zia-ur-Rehman and others (PLD 1973 SC 49), in which Hamoodur Rahman, J., while dilating upon the question of jurisdiction of the Supreme Court, has made the following observations:- "So far, therefore, as this court is concerned it has never claimed to be above the Constitution nor to have the right to strike down any provision of the Constitution, It has accepted the position that it is a creature of the Constitution; that it derives its powers and jurisdiction from the Constitution; and that it will even confine itself within the limits set by the Constitution which it has taken oath to protect and preserve but it does claim and has always claimed that it has the right to interpret the Constitution and to say as to what a particular provision of the Constitution means or does not mean even if that particular provision is a provision seeking to out the jurisdiction of this Court".
The ratio of the above authorities of the Supreme Court seems to be that an incumbent of a public office acting under certain provisions of a statute cannot go into the vires of the same nor the Superior Courts which are the creature of the Constitution and derive their power and jurisdiction under it, claim to be above the Constitution or to have the right to strike down any provision of the original Constitution."
Similarly, in an identical proposition (1997 P.Cr.L.J. 1900) concerning filing of appeal against acquittal order recorded by Sessions Judge in a case pertaining to Offences Against Property (Enforcement of Hudood) Ordinance, 1979, honourable Supreme Court has held:- "A bare perusal of the above re-produced dictum laid down in different cases would reveal that where a case is registered under the Offences Against Property (Enforcement of Hudood)
Ordinance (VI of 1979) (hereinafter referred to as the Ordinance) irrespective of the fact whether conviction is awarded or acquittal is made the appeal shall lie to Federal Shariat Court except in those cases where conviction is less than 2 years."
Thus, in view of above two judgments we are of the opinion that in the instant case learned Special Judge under the Act, 1977 rejected the complaint and had withdrawn the notice instead of conceding the request of the prosecution to adjourn the matter or to dispose of the same even without recording the evidence on the basis of the notice issued to respondent and its reply filed by them, therefore, this order shall be covered u/S. 32 of the Act, 1977 and appeal is held to have been filed competently.
12. Now adverting to merits of the case suffice to observe that in view of the observations made hereinabove while discussing the provisions of Section 32 of the Act, 1977 learned Special Judge/Sessions Judge adopted a procedure which was not permissible under the law because instead of calling upon the prosecution to adduce evidence to establish that property details whereof was mentioned in the notice was acquired by respondents through smuggling may have satisfied itself on having seen explanation offered by respondent or provide them opportunity to indicate to the Court source of his income and assets of of which or by means of which he/they have acquired such property etc., therefore, in my opinion the order is bad in the eye of law and deserves to be set aside.
13. Thus, in view of the above discussion appeal is allowed, impugned order dated 10.3.1998 passed by Sessions Judge/Special Judge under Prevention of Smuggling Act, 1977 Quetta is set aside and case is remanded to him for proceeding with the matter afresh keeping in view the observations made hereinabove and according to relevant law.