This appeal under section 43 of the Prevention of Smuggling Act, 1977 (hereinafter referred as the Act) is directed against the judgment and order of Special Judge, Customs, Taxation and Anti-- smuggling, N.-W.F.P., Peshawar dated 30-8-2002 whereby property situated at Mauza Sheikhul Bandi, District Abbottabad mutated through Mutation No. 21400 attested on 6-1-1999 in the name of Haji Ghayur Khan son of Ghulam Ghaus (appellant No.3) and amounts deposited in General Post Office in the names of Ghafoor Khan minor (appellant No.1) and Taimoor Khan, minor (appellant No.2) and in the name of Ghulam Ghaus (late) father of appellant No.3 and grandfather of appellants Nos.1 and 2 were ordered to be confiscated to the Federal Government.
2. On 9-10-2001 Anti-Narcotics Force constituted under Anti-Narcotics Force Act 1997 submitted before Special Judge information/complaint under section 31 of the Prevention of Smuggling Act, 1977 praying that the property acquired by late Ghulam Ghaus, predecessor-in-interest of the appellants, the amount deposited in the accounts of his minor grandsons be declared as derivatives of the smuggling of narcotics and may be forfeited to Federal Government.
3. In pursuance of above complaint/ information, the learned Special Judge Customs, Taxation and Anti-Smuggling, on 5-12-2001 issued following notice under section 31 of the Act:-- "Sub: NOTICE TO HAJI GHAYOOR KHAN SON OF (LATE) GHULAM GHOUS AND HIS RELATIVES UNDER SECTION 31 OF THE PREVENTION OF SMUGGLING ACT, 1977.
Take notice that the Anti-Narcotics Force laid in this Court an information under section 31 of the Prevention of Smuggling Act, 1977 that you being the legal heir of deceased Ghulam Ghous are holding the assets detailed herein, in your own name and/or in the names of your relatives namely:-- (1)Legal heirs of Ghulam Ghous (Late).
(2)Taimur Khan son of (late) Sohrab Khan resident of Village and Post Office Sheikhul Bandi, District Abbottabad.
(3)Ghafoor Khan son of (late) Yasir Khan resident of Village and Post Office Sheikhul Bandi, District Abbottabad.
(4)Mst. Hayat Noor widow of Ghulam Ghous, resident of Village and Post Office Sheikhul Bandi, District Abbottabad.
AND WHEREAS these assets are suspected to have been acquired by smuggling of narcotics. You are, therefore, issued this notice and required-- (i)to indicate the sources of your income; (ii)the income in the assets out of which or by means of which you have acquired these assets; and (i.e)the evidence on which you rely upon as well as other relevant information and particulars.
You are also called upon to show cause on 5-1-2002 as to why--- (i)the whole of these assets should not be declared to be assets acquired by smuggling; and (ii)be not forfeited to the Federal Government.
DETAIL OF ASSETS (1)Account No.SSA-17153, General Post Office, Abbottabad (balance amount of Rs.34,50,000)
(2)Account No.SSA-17154, General Post Office, Abbottabad (balance amount Rs.20,00,000)
(3)Account No.SSA-17155, General Post Office, Abbottabad (balance amount Rs.20,00,000)
(4)Account No.2264-5, United Bank Limited, Sabzi Mandi Branch, Abbottabad (balance amount Rs.46,963.24)
(5)Landed property situated at Moza Sheikh ul Bandi, District Abbottabad, having through:-- Khata No.1998/3292 Khasra No.5049, Khata No.3493 Khasra No.5067, Khata No.3494 Khasra No.5068, Khata No.1998/3490 Khasra No.5073, Khata No.3496 Khasra No.5069, Khata No.1999/3497 Khasra No. 5071, Khata No.1998/3495 Khasra No.5073 and Khata No. 3496 Khasra No.5069."
(Sd.)
(Special Judge), Customs, Taxation and Anti --Smuggling, N.-W. F. P., Peshawar."
The appellants appeared before the Special Judge Anti-Smuggling and filed their written reply. The appellants were allowed to produce their evidence. At the conclusion of the trial, the learned Special Judge on 30-8-2002 passed the impugned order. The concluding paras. Read as under:-- "In view of the above facts, I am satisfied that the cash amounts deposited in the name of (late)
Ghulam Ghaus in Account No.SSA-17153, General Post Office, Abbottabad amounting to Rs.34,50,000 as per Exh.P.W.5/3, in Account No.2264-5, United Bank Limited, Sabzi Mandi Branch, Abbottabad amounting to Rs.46,963,24 as shown in Exh.P.W.3/1 (4 sheets) and in the names of his legal heirs namely Ghafoor Khan and Taimoor Khan (grandsons) in Account No. SSA--17154 and Account No.SSA-17155, General Post Office, Abbottabad amounting to Rs.20,00,000 each account respectively shown in Exh.P.W.5/1 and Exh.P.W.5/2, duly mentioned in the notices under section 31 of the Prevention of Smuggling Act, 1977, are properties acquired by smuggling and as such I declared that such properties shall stand forfeited to the Federal Government and vest in it free from all encumbrances under section 32(2) and (3) of the Act. I am further satisfied that the landed property acquired by respondent Haji Ghayur Khan through Mutation No.12400 dated 6-1- 1999 Khasra No.5073 Khata No.1998/2490, situated in Mauza Sheikhul Bandi, District Abbottabad is also property acquired by smuggling and hence I declared that such property shall also stand forfeited to the Federal Government and vest in it free from all encumbrances as required under the relevant provisions of the Act.
Regarding the other immovable properties mentioned in the notice under section 31 of the Prevention of Smuggling Act, 1977 issued to the respondents i.e. Khata No.3493 Khasra No.5067, Khata No.3494 Khasra No.5068, Khata No.3496 Khasra No. 5069, Khata No.1999/3497 Khasra No. 5071, Khata No.1998/3495 Khasra No.5073 and Khata No.3496 Khasra No.5069, situated at Mauza Sheikhul Bandi, District Abbottabad, are not proved to be properties acquired through smuggling and hence these properties are not confiscated to State and are hereby released from attachment etc. "
Saddened with the above order, the appellants have filed the instant appeal.
4. The substantive argument of Haji Ghulam Basit, learned counsel for the appellants, was that the Special Judge Anti-- Smuggling had no jurisdiction to serve the appellants with notice under section 31 of the Prevention of Smuggling Act, 1977, therefore, proceedings initiated and property in question confiscated in pursuance to the notice issued to the legal heirs of late Ghulam Ghaus, who had allegedly acquired the property through smuggling of narcotics, was illegal, void and without lawful authority. Elaborating his viewpoint, the learned counsel urged that notice under section 31 could be served upon a person who 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 and if any property is held on his behalf by any of his relatives or associates, a copy of notice be served upon the associates or relatives. Therefore, notice to the L.Rs. (of such person) who do not fall within purview of associates, relatives, was violative of provisions of section 31 of the Act. It was argued that there being no allegation of accumulating of wealth through illegitimate source against the appellants, impugned notices were not appropriate and just and consequently the confiscation of the property was riot warranted in law. Arguing the case on factual side, the learned counsel for the appellants, submitted that amounts deposited in the names of minor appellants was the property of their late fathers namely Yamar Khan and Sohrab Khan, murdered on 17-6-1999 who were transporters and before their death, they had withdrawn Rs. One Crore from their Bank for the construction of Flour Mills which amount lying with their wives, was taken by their father Ghulam Ghous (late) which he had deposited in his own name and in the names of the minor sons of his said deceased sons.
5. As to confiscation of landed property in the name of Haji Ghayoor Khan appellant, the learned counsel maintained that appellant No.3 inherited only a portion of six Marlas of land vide mutation in question dated 6-1-1999 which under the law could not be confiscated.
6. On the contrary, Mr. Tariq Kakar, learned Prosecutor for respondent No. 1, defending. The impugned order insisted that property and amounts in question were rightly confiscated to the Federal Government which have sufficiently been proved to be the property acquired by Ghulam Ghaus through smuggling of narcotics.
7. The arguments of the learned counsel for the parties considered in the light of record and evidence produced by the appellants at the trial.
8. Before I proceed to appreciate the points raised before me, it is desirable to narrate a brief background of the case.
As per complaint/information filed by ANF, respondent, Ghulam Ghaus (late) predecessor-in- interest of appellants, was basically a poor man. He had no legal income generating source. He indulged himself in smuggling of narcotics and against him cases under Order 3/4, P.O. And section 9, C.N.S.A. Were also registered. Through this illegitimate business of narcotics, he acquired huge wealth. He had three sons namely Yamar Khan (late), Sohrab Khan (late) and Haji Ghayoor Khan (appellant No.3). His two sons Yamar Khan and Sohrab Khan, both married during his lifetime, were murdered in a jeep near Salhad on 17-6-1999. Sohrab Khan (deceased) was survived by a son Taimoor Khan minor 5/6 years (appellant No.2) and widow Mst. Nighat Bibi while Yamar Khan was survived by a son Ghafoor Khan minor 4/5 years (appellant No.1) and his widow Mst. Naheed Begum. During his abscondence in case F.I.R. No.3 dated 4-8--1999 under section 9, C.N.S.A., he was murdered and to this effect case F.I.R. No.431 dated 13-6-2001 was registered in Police Station Carat., Abbottabad. At the time of death of Ghulam Ghaus (late) he had only one son Ghayoor Khan (appellant No.3), besides his widow Mst. Jamila Khatoon and daughter Mst. Shahida Norin and two minor grandsons Taimoor and Ghafoor (appellants Nos. 1 and 2). Before his death, Ghulam Ghaus (late) had deposited in the bank certain amount in his own name and also in the names of his minor grandsons.
9. Under section 30 of the Act, it shall not be lawful for any person to hold either in his own name or in the name of any of his relative or associate any property acquired by smuggling. Any such property so held shall be liable to be forfeited to the Federal Government. Section 31 provides issuance of notice to any person holding property suspected to be acquired by smuggling. Section 31 reads as under:-- "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 the 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 he 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."
10. The above provision suggests that notice is to be given to any person who 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 the smuggling. The words 'any person' needs to be expounded in right perspective. Though the expression 'any person' has been discussed in detail in the case of Anti-- Narcotics Force v. Haji Iqbal Shah and others 1999 PCr.LJ 1125 referred to by the learned counsel for the appellants but that was in respect of different context. In the cited precedent, the question before the Court was whether ANF/State would be covered by term 'any person' used in section 43 of the Act. In the instant case, the words 'any person' in section 31 of the Act above obviously refers to a person against whom allegation of smuggling has been made and who either in his own name or in the name of his relative or associate is holding property reasonably suspected to be acquired from the income of smuggling.
11. Similarly expression 'such person' contained in above provision also needs to be clarified. The word 'such' according to Stroud's Judicial Dictionary, Fourth Edition, "such," like "said", generally refers to its last antecedent. The expression 'such' has been interpreted in Law Terms and Phrases.
The word 'such' means 'of the same kind', that is to say, 'of the kind mentioned before'. Such person has also been appreciated by Lahore High Court in the case of Amir Chand v. Jowahar Singh Harbhajan Singh and another AIR 1928 Lahore 473. It says 'such person' can only mean the person described immediately above. Thus 'such person' in section 31 of the Act connotes person who had in fact committed the offence of smu ggling and accumulated wealth either in, his own name or in the names of relatives or associates. As to who shall be relative or associate we may fall back on the definition of 'associate' provided in section 2(i)(a) of the Act. It reads 'Associate' in relation to a person means-- (i)any individual who is or has been residing in the residential premises, including outhouses and servant --quarters, of such person; (ii)any individual who is or has been managing the affairs or keeping the accounts of such person; (i.e)any association of persons, body of individuals, partnership firms, or private limited company within the meaning of Companies Act, 1913 (VII of 1913), of which such person is or has been a member, partner or director; (iv)any individual who is or has been a member, partner or director of an association of persons, body of individuals, partnership firm or a private limited company referred to in sub-clause (i.e); (v)a trustee of any trust created by such person; or (vi)where the Special Judge, for reasons to be recorded considers that any property of such person is held on his behalf by any other person, such other person"; The above definition in no way can be interpreted to include the legal heirs of a person who is suspected to have acquired property through income of smuggling. Had that been the intention of the Legislature, the same would have been provided in express terms in section 30 or 31 of the Act.
Therefore, the notice issued under section 31 of the Act could only be issued to a person accused of smuggling thereby calling upon him to explain why his property or any part of his property be not forfeited to the Federal Government. The above provision further suggests that where such notice specifies that ill-gotten wealth or property is being held in the names of his relative or associate, such relative or associate be also sent copy of such notice. To be more precise, the provision of above law follows up the person and not the property acquired by smuggling. Thus notice issued to the appellants and in pursuance thereof property forfeited to the Federal Government is held to be void, illegal and without lawful authority.
12. As to the objection of the learned counsel for the ANF that the appellants, who had remedy to assail the issuance of notice under section 31 of the Act through appeal under section 43 of the Act, once surrenders to the jurisdiction of the Special Court cannot dispute the same at later stage has no force. It is firmly established that when a final order is challenged through an appeal, the entire case requires re appreciation and reassessment including all the interim orders. In this context, we may refer to the case of Mst. Khurshid Begum and others v. Ahmad Bakhsh and others PLD 1985 Supreme Court 405 wherein it is held:-- "When an appeal is filed against ultimate decision, whole case including all interim orders passed in the case get reopened and can be challenged before Court of appeal hearing the appeal filed against final decision whereby suit was ultimately disposed of."
Similar view was held by the Supreme Court in the case of Ali Muhammad v. Hussain Bakhsh and others PLD 1976 Supreme Court 37.
13. Now reverting to the factual aspect of the case, as observed above, it was Ghulam Ghaus (late) predecessor-in-interest of the appellants who was allegedly involved in the business of smuggling of narcotics and from this illegitimate business, he had made money which amounts he had deposited in the names of his minor grandsons and the property was inherited by his son Haji Ghayoor Khan, appellant No.3.
14. To prove its case the prosecution examined five witnesses. Rafi Sultan (P.W.1), Saddar Office Qanoon Go, Abbottabad produced Fard Jamabandis for the year 1948-49 (Exh.P.W.1/1), 1952-53 (Exh.P.W.1/2), 1957-58 (Exh.P.W.1/3), Fard Jamabandis 1960-61 (Exh.P.W.1/4), 1964-65 (Exh.P.W.1/5), 1982-83 (Exh.P.W.1/6) and Mutation No.2054 (Exh.P.W.1/7) attested on 1417-1955 and Mutation No. 9650 (Exh.P.W.1/8) attested on 22-7-1998. In the cross-examination, he had admitted that Mutation No. 2 54 dated 14-7-1955 was a gift on the basis of which the sisters of Lal Muhammad and Wali Muhammad (father of Glaulam Ghaus) transferred their shares in the names of their brothers and that share of his father was mutated in the name of Ghulam Ghaus through Inheritance Mutation bearing No.9650. He further admitted that there was not any mutation through which Ghulam Ghaus had purchased the property from any one. Javed Khan Patwari Halqa Sheikhul Bandi, Abbottabad (P.W.2) produced Fard Jamabandi 1982-83 till 1994-95 (Exh.P.W.2/1) regarding the property of Ghulam Ghaus. In the cross-examination, he admitted that the above properties were inherited by him from his father. Tic also referred to mutation attested in the name of Haji Ghayoor (appellant) referred to in the Jamabandi for 1994-95 which was purchased on 6-1-1999. Ghulam Rabi Manager Sales, U.B.L. Branch Sabzi Mandi, Abbottabad (P.W.3) brought statement of account
(PLS) No.2264-5 (Exh.P.W.3/1) in the name of Ghulam Ghaus (late) showing balance as Rs.52710.11 on 4-1-2002. Muhammad Akram, Cashier M.C.B. Jangi Mansehra Road Branch, Abbottabad brought account opening form of Sohrab Khan, his statement of Account No.000238-4 showing deposits and withdrawals from 10-6-1996 till 1-4-2002 (Exh.P.W.4/2). In the cross-examination, he admitted that a sum of Rs.50 lacs was withdrawn by Sohrab Khan on 8-lp-1998 leaving amount of Rs.277,357.19 and that Rs.50 lacs were never re deposited. Muhammad Mumtaz, Deputy Post Master Abbottabad (P.W.5) brought original ledgers pertaining to Account No. 17154-SSA (Exh.P.W.5/1) in the name of Ghafoor Khan (minor) son of Yasar Khan, Account No.17155-SSA (Exh.P.W.5/2) of Taimur Khan (minor appellant) son of Sohrab Khan and Account No.17153 (Exh.P.W.5/3) of Ghulam Ghaus (late). It has been admitted by him that amount in the name of minor Taimoor Khan and Ghafoor Khan (appellants) was deposited by Ghulam Ghaus their grandfather.
15. Mst. Nighat Bibi widow of Sohrab Khan and mother of Taimoor Khan (minor) appellant appeared as D.W.1 before the trial Court. She averred that she and were of Yasar Khan (late her brother-in- law) were real sisters. Both the brothers brought Rs.10 millions from the Bank before their death and told them (wives) that they would purchase a Flour Mill but after the death of their husbands, Ghulam Ghaus, their father-in-law, took the amount from them for depositing in the names of their minor sons. After Ghulam Ghaus was murdered, she learnt from Ghayoor Khan, her brother-in-law, that an amount of Rs.72 lacs were deposited in the names of minor appellants.
16. I see force in the contention of the learned counsel for the respondents that the amount deposited by Ghulam Ghaus in the names of minor grandsons and in his own name belonged to his deceased sons for the reason that widows of the two deceased i.e. Mst. Nighat and Mst. Naheed in their statements recorded under section 164, Cr.P.C. On 10-8-1998 (much prior to the issuance of Notice under section 31) before the Magistrate after the death of their husbands, wherein they had charged their father-in-law Ghulam Ghaus for the murder of their husbands Sohrab Khan and Yasar Khan had categorically stated that their father-in-law Ghulam Ghaus had by force taken away one crore rupees from them saying that the same would be deposited in the names of the minors sons of the deceased. Furthermore, the statement of the P.Ws. Proved that Ghulam Ghaus had inherited sufficient immovable property from his fore--fathers and, therefore, he was not as poor as depicted in the case. Coming to the property of Haji Ghayoor Khan son of Ghulam Ghaus which he inherited out of 2 Kanals, 2 Marlas through Mutation No.9495 from his father Ghulam Ghaus (late) purchased by him through Mutation No.9495 on 6-1-1999 comes is 6 Marlas only.
Ghulam Ghaus (late) being the owner of such huge property inherited by him which the trial Court held no proved to be the properties acquired smuggling, he could easily purchase Kanals, 2 Marlas.
17. In view of the above discussion, the appeal is hereby allowed. The impugned order is set aside.
The property/Bank accounts which were ordered to be confiscated to the State are hereby discharged.