' This appeal has been filed under section 43 of the Prevention of Smuggling Act, 1977 (hereinafter referred as the Act) against the judgment and order of Special Judge (Central), Customs, Taxation and Anti-Smuggling, N.-W.F.P., Peshawar dated 3-1-2001 whereby the property mentioned in the information/complaint lodged by the Director Anti-Narcotics Force has been directed to be forfeited to the Federal Government.
2. The Federal Government through Director, Anti-Narcotics Force, Peshawar filed information/report under section 31 of the Act in the Court of Special Judge (Central), Customs Taxation and Anti-Smuggling, Peshawar against Haji Shamal son of Noor Kamal, resident of House No,49 Qaidabad, Peshawar, appellant herein, for the forfeiture of the properties, mentioned hereinbelow, holding in his own name and the names of his relatives/associates to the Federal Government suspecting to be the properties acquired through income derived from smuggling of narcotics. The properties are:-
(1) House No,244 (double storey) at Qaidabad, Peshawar City, acquired through sale-deed etc. Annexures B/1 and B/2.
(2) House No,49 and 7 shops situated at Qaidabad, Peshawar City, acquired through mutation and Fard etc. Annexures B/3 to B/5.
(3) Hotel "Classic Inn" at Ranzra Pull Madyan, Tehsil Baharain District Swat, on Khasra No,1039, Khata No,625/577, Khatooni No,857, measuring 16 Marlas, Khasra No,1040, Khata No,526/578, Khatooni No,858, measuring 0-Kanal .6 Marlas and Khasra No,1044, Khata No,266/23, Khatooni No,418, measuring 0 Kanal, 7 Marlas, acquired through mutation and Fards Annexures 3/6 to Exh.B/8.
(4) Plot of about one Kanal and 17 Marlas situated at Ranzra Pull Madyan, District Swat, vide Registry No,64 dated 11-8-1999 Annexure B/95, and
(5) Afridi Iluminum Industry (Pvt.) Ltd., Ghundai, Jamrud Khyber Agency, situated in tribal territory.
3. The allegations contained in the information were that upon the investigation, Haji Shamal Khan was found actively involved in the smuggling of narcotics and from the income of such illegal trafficking of narcotic the appellant who was simply a driver/cleaner of the vehicle. Derived income and acquired the properties in question in his own name and in the names of his relatives, were liable to be forfeited under section 31 of the Act. The learned Special Judge (Central), Customs, Taxation and Anti-Smuggling, Peshawar upon the receipt of the information, issued notice to the appellant and his associates calling upon them to reply to the following queries:--
(i) to indicate the sources of his income:
(ii) the income and the assets out of which or by means of which he has acquired these properties, and
(iii) the evidence on which he relies upon as well as other relevant information and particulars.
' They were further called upon to show cause on 31-3-2000 as to why--
(i) the whole of these properties should not be declared to be the properties acquired by smuggling, and
(ii) be not forfeited to the Federal Government.
4. The notice was duly replied to by the appellant denying all the allegations levelled against him/them contained therein. The appellant also produced his evidence to satisfy the Court that the properties in question were acquired through legal means. The complainant/Federal Government did not produce any evidence and relied on the information and documents annexed thereto. After evaluating and assessing the evidence so recorded on behalf of the appellant, the learned trial Court, vide impugned judgment, dated 3-1-2001, declared the properties in question to be the properties acquired through income of smuggling and accordingly ordered their forfeiture to the Federal Government. Aggrieved, the appellant approached this Court through the instant appeal.
5. Mr. M. Zaharul Haq, Bar-at-Law, Advocate for the appellant and Mr. Amjad Zia, Advocate, appeared for the Federal Government.
6. The learned counsel for the appellant contended that out of five properties, mentioned above, three properties are situated in Swat and in Khyber Agency and hence beyond the jurisdiction of Special Judge Anti-Smuggling, Peshawar as the Prevention of Smuggling Act, 1977 has not been extended to PATA/FATA in terms of Article 247 of the Constitution. As to the other two properties situated in Peshawar, the learned counsel maintained that the same could not be confiscated as the prosecution badly failed to prove that they were acquired through the income of smuggling of narcotics and that the appellant remained involved in the smuggling of narcotics. It was also contended that the documents relied upon by the prosecution and annexed with the information have not been duly proved and substantiated before the Court in terms of Qanun-e-Shahadat Order, 1984, therefore, the same cannot be considered in evidence. In support of his contention, the learned counsel referred to AIR 1964 Supreme Court 1654, AIR 1951 Orissa 262/263 and AIR 1956 Bombay 67.
7. On the contrary, the learned counsel for the Federal Government maintained that the appellant had actively remained involved in the smuggling of narcotics and evidently proved through the annexed documents and that from the income accrued thereon, he acquired the properties in question. The learned counsel further contended that the documents so annexed need not be proved through evidence as the information contained is enough to move the Court of Special Judge to issue notice under section 31 of the Act and that if the Court is justifiably satisfied can issue the said notice to the respondent. As for the properties situated in PATA/FATA, the learned counsel submitted that the properties may not be situated within the limits/jurisdiction of the trial Court as the action against the properties situated outside his jurisdiction could also be considered to have been acquired through illegal income.
8. I have considered the submissions of the learned counsel for the parties carefully and also very minutely examined the record of the case.
9. For the proper appreciation of the issues in hand, it would be appropriate to reproduce section 31 of the Act 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 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 proceedings against such persons.
(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 relied upon and other relevant information and particular.
(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.
' Section 31 (ibid) contemplates that when an information is received by the learned Special Judge Anti-Smuggling that within limits of his jurisdiction any person is holding property suspected to be the property acquired though income of smuggling and he has sufficient reasons to believe that the said property is acquired through income of smuggling, the Special Judge after considering the value of assets and his known source of income would issue notice calling upon the person to show as to why such property shall not be declared as the property acquired through income of smuggling and that after considering reply and objection so filed by the person against whom notice was issued and the evidence so produced by the said person, the Court if satisfied that the said property was acquired through income of smuggling would order forfeiture/confiscation to the Federal Government.
9. As it is evident from the provision of law, reproduced hereinbefore, it is nowhere required/mentioned in the said provision that the prosecution shall also record its evidence in support of the information so made. Section 33 of the Act envisages that the burden of proving that any property specified in a notice issued under section 31 of the Act is not the property acquired by smuggling shall be on the person or his relative or associate to whom such notice is issued. I find myself in agreement with the learned counsel for the respondent that the term mentioned in section 32 of the Act pertains to the evidence of the respondent, for, he is to prove his innocence qua the charges contained in the information. While appreciating identical point, the High Court of Quetta in the case of State v. Nasrullah and 8 others (PLD 2000 Quetta 19) made the following observations:-- "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 respondent 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 under section 33 of the Act, 1977, the burden was upon the respondents to clear that the properties owned by them, through.Relatives etc., have 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."
' Thus it is sufficiently clear that the person to whom the notice is issued, is to prove his innocence through his evidence and it is not for the prosecution to prove him guilty.
10. As to the objection that some of the properties being situated in Swat and Khyber Agency are not amenable to the jurisdiction of Special Judge, also seem to have no force. The term "property" has been defined in section 2(c) of the Act which includes property even outside Pakistan, therefore, non-extension of the Act in terms of Article 247 of the Constitution is not required. What is required of section 31 is that the person against whom the notice is issued shall be within the limits of the jurisdiction of the Special Judge. Admittedly, the appellant is the resident of settled area of Qaidabad and thus within the jurisdiction of the Special Judge.
11. Now reverting to the merits of the case, the allegations against the appellants were ,that he was simply a driver of a vehicle and a notorious smuggler and through the business of smuggling, he had amassed the property in question through the income of the smuggling. The prosecution in support of allegation annexed certified copies of the judgment and F.I.Rs, justifying his conviction and his involvement in the drug business. To prove his innocence, the appellant examined as many as seven witnesses. However, he himself abstained to be examined on oath so as to avoid the cross-examination by the prosecution. Tariq, P.W.6, is the son of the appellant. According to him, his father (appellant) had a business of timber inherited from his forefather and that he himself dealt in a business of transport and for some time a business of furnace oil. He submitted that his grandfather was the only man who had a motor-car in the village but not an iota of documentary evidence was produced to substantiate his claim. However, he expressed his ignorance regarding registration of criminal cases against his father (i,e, F.I.R. No,79 dated 27-2-1965, F.I.R. No,183 dated 5-4-1974 and F.I.R. No,73 dated 13-8.-1993). However, he admitted that his father was convicted for the smuggling of heroin powder weighing 89 Kgs. By the Political Authorities. Mian Jan (R.W.1) claimed to be the partner associate in the timber business who had provided Financial Assistance and that the average income per year was 45 lacs rupees. However, he did not produce any document/evidence qua the timber business though he himself admitted that for purchase of jungle trees, permission from A.P.A. Was required. Similarly, Rehmat Khan (R.W.2) stated to have carried out timber business with Shamal Khan (appellant) and that he had business relations with Shamal Khan appellant for the last 60 years. He could not produce any receipt/document when so asked by the trial Court. He admitted that father of Shamal Khan appellant was a driver and he (Shamal Khan) himself remained a cleaner. Naseem Khan (R.W.3) has alleged to have carried out business of oil in P.S.O. Since 1985 as per partnership deed which had approximately income of Rs,20,000 per month and net income of Rs,2,40,000 per year, but despite repeated directions by the trial Court, he could not make the income-tax number available. He admitted that the name of the appellant was not mentioned in the document of P.S.O. Though he alleged to be business partner in oil of P.S.O. Since 1985 but partnership deed produced before the trial Court was executed in 1996.
Abdur Rahim (R.W.4) claimed to be business partner of Naushad son of the appellant in aluminum factory. He also claimed to be owner of the land on which the almunium factory was constructed but despite time he could not produce any evidence of his ownership of the factory. Haji Shaurang (R.W.5) stated that he was business partner of appellant in transport with net income of Rs,10/12 lacs per year. He stated to have paid wealth tax, bargain tax etc., however, expressed his inability to produce any document/receipt of such payment. He admitted that appellant had a car which was used for carrying foreign made cloth to Punjab. From the statements of respondent's witnesses above, it is more than clear that all the witnesses are convicted witnesses. They deposed in favor of the appellant being his close associates and friends and as per tradition and custom of the area, they had deposed in favor of the appellant to take him out of the crisis. There is ample documentary evidence in the shape of F.I.Rs, and the judgment of trial Court that appellant had remained indulged in the business of smuggling of narcotics. Admittedly, he was convicted to seven years' imprisonment for smuggling of heroin powder weighing 89 Kgs. From the evidence so produced on behalf of the appellant, it is abundantly clear that he was previously an ordinary man and a cleaner and did not have any solid source of income. He had not inherited any property from his father who himself was a driver. We would have no cavil with the contention of the learned counsel for the appellant that the documents/F.I.Rs, unless proved before the trial Court cannot be taken into consideration but under law of Prevention of Smuggling, the production of documents only with the information/complainant against a person allegedly acquired property through the income of amount of smuggling of narcotics was enough to set the machinery into motion.
Appellant himself intentionally abstained to appear in the witness-box in order to avoid the cross- examination by the prosecution. It is sufficiently believed that the property in question was acquired through the income of smuggling of drug.
12. Consequent to above, I see no force in this appeal which is hereby dismissed.