C. P. NO. D-4486 of 2013
Present:
Mr. Justice Aqeel Ahmed Abbasi.
Mr. Justice Muhammad Junaid Ghaffar.
The State / Anti Narcotics Force ----------------------------------------- Petitioner
Versus
Mushtaq Ahmed Malik & Another ------------------------------------ Respondents
Date of hearing: 19.02.2015.
Date of order: 19.02.2015.
Petitioner: Through Mr. Shafiq Ahmed Special Prosecutor
Assisted by Mr. Samiullah Baloch A.D. ANF.
Respondent Through Mr. Pervaiz Mustafa Advocate.
J U D G M E N T
Muhammad Junaid Ghaffar, J. Through instant petition, the petitioner has impugnedorder dated 26.4.2013 passed by the Special Appellate Court established under section 46 of The Prevention of Smuggling Act, 1977, and presided over bya Single Judge of this Court in Special Criminal Acquittal Appeal No. 04 of 2011, whereby, the appeal preferred by the petitioner against order dated 29.1.2010 passed by the Special Judge (Anti-Smuggling), Karachi, had been dismissed.
2. Briefly, the facts as stated are that the Pakistan Cost Guards had arrested respondent No. 1 in FIR No. 3201 of 1985 dated 17.1.1985 registered under Section 156(1) & (8) of the Customs Act, 1969, for his alleged involvement in smuggling of heroin. The case was proceeded before the Special Military Court, Headquarter, Sector I, Karachi, wherein the respondent No.1 was convicted and sentenced for three years R.I. with a fine of Rs.500,000/-. It is further stated that thereafter, during investigation it revealed that a property bearing Bungalow No. 27/II, 19th Street, Khayaban-e-Tanzeem, Phase V, D.H.A. Karachi, was traced out in the name of the wife of respondent No. 1, whereas according to the petitioner,since the wife of respondent No. 1 had no source of income, the property was apparently purchased from illegitimate earnings of her husband. Subsequently, the petitioner department approached the Special Judge (Anti-Smuggling), Karachi, on 27.01.2000, by filing information under Section 31 of The Prevention of Smuggling Act, 1977, and on receipt of such information the Special Judge (Anti-Smuggling), Karachi, issued Notice to the respondent No. 1 and his wife and also restricted any further transfer of the said property. Subsequently, respondent No. 2 filed an application before the Special Judge (Anti-Smuggling), Karachi, on or about 25.6.2001, wherein, she claimed that the said property was purchased by her from the wife of respondent No. 1 vide registered Sale Deed No.4892 registered with Sub-Registrar T-Division-II-Karachi on 29.10.1987 and M.F. Roll No.430 dated 8.11.1987 before Photo Registrar, Karachi. Learned Special Judge(Anti-Smuggling), Karachi, after recording of evidence led by the petitioner as well as by the respondent No.2 vide order dated 27.9.2005, withdrew the Notice under Section 31 of The Prevention of Smuggling Act, 1977, and the property in question was ordered to be de-freezed. The petitioner i.e. ANF, did not prefer any appeal against the order of De-freezing of the property, however, after a lapse of approximately three years filed an application on or about 20.5.2008 for rectification in the aforesaid order dated 27.09.2005. The rectification application was dismissed by the learned Special Judge (Anti-Smuggling), Karachi, vide order dated 29.1.2010,whereafter, a Criminal Acquittal Appeal bearing No. 04 of 2011 was filed by the petitioner under Section 43 of The Prevention of Smuggling Act, 1977, before the Special Appellate Court, which has also been dismissed vide impugned order dated 26.4.2013.
3. Mr. Shafiq Ahmed learned Special Prosecutor ANF contended that the learned SpecialJudge(Anti-Smuggling), Karachi, had failed to adjudicate the case on merits, whereas, the petitioner has been non-suited merely on the ground that the rectification application was hopelessly time barred. Per learned Counselit was incumbent upon the learned SingleJudge to decide the case on merits, instead of dismissing iton the ground of limitation. Learned Counsel further contended that the property in question was bought by the wife of respondent No. 1 from illegitimate source of income of her husband as she had no independent source of income, therefore, the learned Special Judge,(Anti-Smuggling), Karachi, as well as the Special Appellate Court have erred in law while passing the impugned order(s). Learned Counsel for the petitioner in response to the objectionraised on behalf of Respondent No. 2 with regard to maintainability of instant petition against the order passed by the Special Appellate Court, presided over by a learned Single Judge of this Court, relied upon the case ofAsghar Ali & another Vs. The State (1999 SCMR 654) and contended that the Hon’ble Supreme Court has already held that no appeal lies before the Hon’ble Supreme Courtunder Article 185 of the Constitution of Islamic Republic of Pakistan 1973, against an order passed by the Special Appellate Court, established under a Special Law, as such Court is not a High Court, therefore, the petitioner having left with no other remedy has filed instant petition. In view of hereinabove submissions, learned Counsel for the petitioner prayed that instant petition may be allowed by setting aside the order(s) passed by the forums below and the property in question be ordered to be freezed.
4. Conversely, Mr. Perviaz Mustafa learned Counsel for the respondent No.2 has vehemently opposed the contention of learned Counsel for the petitioner and has raised an objection as to maintainability of instant petition. It has been contended that the impugned order has been passed by the learned Special Appellate Court after considering the entire material on record and the contention as raised on behalfof the petitioner, whereafter, it has been heldthat since no appeal was filed by the petitioner against the order dated 27.09.2005 of de-freezing of the subject property,passed by the learned Special Judge (Anti-Smuggling), Karachi, whereas,instead of filing an appeal against such order, a rectification application was filed at a very belated stage which was hopelessly time barred, hence no case for recalling or rectification was made out by the petitioner. Per learned Counsel, the Trial Court as well as the Special Appellate Courthave passed well-reasoned order(s)after taking the entire facts and the relevant law, therefore, instant petition merits no consideration and the same is liable to be dismissed,whereas, through this frivolous petition and the proceedings, the respondent No.2, who is an old ailing lady is being dragged unnecessarily since last 15 years and is unable to sell its lawfully owned property despite having favourable orders in her favour.
5. We have heard both the learned the Counsel, perused the recordincluding the R & P of the Trial Court and the Special Appellate Court and the case law relied upon by the parties. Since a short controversy is involved in the instant matter, by consent of both the learned Counsel, instant petition is being finally disposed of at Katcha Peshi stage.
6. From perusal of the record it appears that one Mr. Zarin Khan,(Inspector, Assets), ANF, Karachi,had filed an application dated 21.12.1999, before the Special Judge (Anti-Smuggling) at Karachi, by disclosing information under Section 31 of The Prevention of Smuggling Act, 1977, whereby, the Court was informed that during the course of inquiry, it has been found that respondent No. 1 has been involved in smuggling of narcotics, by which over a period of time, had acquired properties which were not relatable to any legitimate known source of income of respondent No. 1 and his family. It was further prayed on behalf of the petitioner that the property in question may be declared as a property acquired through smuggling which is liable to be forfeited to the Federal Governmentunder Section 32 of the Prevention of the Smuggling Act, 1977. Thereafter the Special Judge (Anti-Smuggling), Karachi, vide order dated 27.1.2000 issued Notice to respondent No. 1,for filing preliminary objections against the application and till disposal of the application the respondent No. 1 was restrained from disposing of the property.Thereafter, respondent No.2 approached the Special Judge (Anti-Smuggling), Karachi,on 27.6.2001, by filing an application under Section 32 read with Section 40 of The Prevention of Smuggling Act, 1977, for recalling the order of freezing of the property, as according to the respondent No. 1 the said property was purchased by her in the year 1987 from her known source of income and had no relation with respondent No. 1 or his alleged illegitimate sources of income. The learned Special Judge (Ant-Smuggling), Karachi, proceeded with the matter by recording evidence, and the petitioner through its informer Mr. Zarin Khan filed Affidavit in evidenceand deposed that the respondent No.1 was convicted by the Military Court and was awarded sentence of three years R.I. with fine of Rs.500,000/-. It was further deposed in the Affidavit in evidence that respondent No. 1 acquired bungalow / property in question from income earned through smuggling of narcotics and further deposed in the Affidavit that the property in question was freezed by ANF on 1.8.1996 by means of a written request to D.H.A. The witness further deposed that as per record of Defence Housing Authority, the Conveyance Deed dated 29.10.1987, through which the respondent No.2 had purchased the said property, was not available on record of D.H.A. The deponent was cross-examined on behalf of respondent No. 2, wherein the deponent admitted that the Defence Housing Authority, Karachi, had informed through its letter dated 03.09.1996, that once a property is B-leased by them, the owner can disposeof the property, without knowledge or intimation to Defence Housing Authority, Karachi, through an independent Conveyance Deed, whereas, the appropriate authority for entertaining any freezing request in such a situation would be the concerned Registrar, before whom the Conveyance Deed is registered. The said witness also admitted in the cross-examination that ANF (petitioner) did not read nor filed any objection(s) against the advertisement in the Newspaper,published by the respondent No.2, in respect of the purchase of the said property from the wife of respondent No. 1. The respondent No.2 also filed her Affidavit in evidence and brought on record the entire documents including the Conveyance Deed, the Newspaper publication as well as papers regarding sale of another property from which the respondent No.2 claimed to have purchased the property in question. However, the respondent No.2 was not cross-examined on behalf of the petitioner. The Special Judge(Anti-Smuggling), Karachi, after going through the entire evidence and hearing the arguments raised on behalf of the petitioner and respondent No.2,came to the conclusion vide order dated 27.9.2005,that the property in question could not be freezed as the same was purchased by the respondent No.2 with lawful means. It would be advantageous to refer to the findings of the learned Special Judge (Anti-Smuggling), Karachi, which reads as under:-
“Heard the learned Advocate for the applicant / intervener and the learned Special Prosecutor. The learned advocate argued that Mst. Husan Ara purchase the property / bungalow in question and a Conveyance Deed dated 25.10.1987 was executed between her and Mrs. Rizwana Malik. He further argued that before executing the Conveyance Deed Mst. Husan Ara had given advertisement in Daily Jang dated 18.10.1987. He further argued that Mst. Husan Aramade payment of Rs. 7,48,000/- for the purchase of the property. The learned D.C. argued that Mst. Husan Ara purchased this property after selling of her property / plot No. 24, Khatoni NO. 114, Khawat No. 65, Quetta measuring 3268 Square feet in the sum of Rs. 33,00,000/-. He argued that Mst. Husan Ara has no relationship whatsoever with Mrs. Rizwana Malik or his associates. The learned D.C. argued that ANF authorities without conducting any investigation seized / freezed the property of Mst. Husan Ara. The learned D.C. argued that informer Zarin Khan in his report dated 18.5.2000 Ex. 2M himself admitted that Mrs. Rizwana Malik sold the property in question to Mt. Husan Ara but inspite of that fact he filed affidavit in evidence against Mst. Husan Ara. The learned advocate argued that Mst. Husan Ara also filed counter affidavit Ex. 3 and an opportunity was provided to the SpecialProsecutor to cross examine but he did not crossexamine her and admitted the contents of the affidavit to be true. The learned D.C. argued that ANF illegally freezed the property of Mst. Husan Ara and same may be released. The learned Prosecutor appearing on behalf of the ANF frankly conceded that property in question was mistakenly freezed and he has no objection for release / defreeze of the same.
Having heard the arguments. I have also gone through the entire material on record. Applicant Mst. Husan Ara purchased the property in question and a conveyance deed Ex. 2L was executed between her and Mrs. Rizwana Malik and which conveyance deed dated 25.10.1987 was registered in the office of Sub-Registrar T-Division-II, Karachi. Before purchase of the same Mst. Husan Ara got published an advertisement in Daily Jang dated 18.10.1987 Ex. 2H. No objectionwas received from any quarter. Mst. Husan Ara has established that she purchased the property in question from her legal money which amount she received after selling her property in Quetta to M/s. N.D.F.C. vide Sale Agreement Ex. 2K dated 17.6.1985 in the sum of Rs. 33,00,000/-. The informer in his cross-examination himself admitted that during investigation he came to know that the property in question was sold by Mrs. Rizwana Malik to Mst. Husan Ara and he submitted such report Ex. 2M before this Court. The ANF authorities completely failed to prove any link between the applicant and main respondent Mushtaq Ahmed Malik. The applicant in her affidavit completely denied her associating with Mushtaq Ahmed Malik and the learned prosecutor did not challenge the evidence of Mt. Husan Ara which she deposed in her affidavit in evidence. The learned Prosecutor also frankly conceded that due to misunderstanding the property of Mst. Husan Ara was seized / freezed and stated that he has no objection for release /de-freeze of the property of Mst. Husan Ara. The upshot of the above discussion is that Mst. Husan Ara is the bonafide owner of the property and she has no relationship / association with Mushtaq Ahmed Malik or his wife Rizwana Malik. Accordingly, I order the release / defreeze of the property of Mst. Husan Ara being Bungalow No. 27/11, 19th Street, Khayaban-e-Tanzeem, Phase V, DHA, Karachi.”
7. It is an admitted position which has not been controverted that the petitioner did not prefer any appeal against the aforesaid order, nor filed any application before the learned Special Judge (Anti-Smuggling), Karachi, until 20.5.2008, when the petitioner sought rectification of the order dated 27.09.2005, on the ground that no order had been passed on merits,whereas, the learned Trial Court had also not taken into consideration the proviso to Section 31(1) of the Prevention of the Smuggling Act, 1977. The rectification application was dismissed by the learned Special Judge (Anti-Smuggling), Karachi, vide order dated 29.1.2010, against which an Acquittal Appeal bearing No. 04 of 2011 was preferred by the petitioner and the learned Special Appellate Court, presided over by a Single Judge of this Court,dismissed the same vide order dated 26.4.2013. It would be advantageous to refer to the relevant finding recorded by the Special Appellate Court in the aforesaid order which reads as under:-
“I specifically askeda question from the learned counsel for the ANF Authorities that whether any appealagainst the judgment passed by the learned Judge dated 27.9.2005 was filed, to which he replied in negative. I again asked from the learned counsel that what is the mistake, according to him, apparent and patent in the order against which he sought review, again no plausible reply was furnished. I asked yet another question form the learned counsel that what is the material defect in the order dated 29.1.2010 to which he reiterated his above view. It is apparent from the record that no appeal against the judgment dated 27.9.2005 was filed by the department and it appears that as an afterthought review application, at a belatedstage, was filed just to give the case a new lease of life. The judgment passed by the learned Judge dated 27.9.2005 appears to be in consonance with law, since the learned Judge has passed the order when the Special Prosecutor appearing before him has candidly conceded that due to mis-understanding the property of the respondent No. 2 was seized / freezed and that he has no objection for release / de-freeze of the said property. It is only thereafter that the learned Judge, after recording the concession of the Special Prosecutor, who appeared before him, and upon looking at the fact of the case, ordered releasing / de-freezing of the property. It is also seen from the record that the departmental authorities have failed to point out any mistake apparent form the record or any justification for filing the review application before the learned Judge at a belated stage on 20.5.2008 which application also appears to be vague, which has not been controverted by the learned counsel appearing on behalf of the ANF Authorities.
In view of the observations made above, I do not find any justification to set aside either the judgment dated 27.9.2005 or the order dated 29.1.2010, as prayed by the department, or to order freezing of the saidproperty, as the department has totally failed to adduce a single plausible reason for interfering with the said judgment / order. This Special Criminal Acquittal Appeal is, therefore, found to be totally devoid of any merit and is hereby dismissed.”
8. Insofar as the objection with regard to maintainability of instant petition raised by the learned Counsel for respondent No.2 is concerned, we have gone through the judgment relied upon by the learned Counsel for the petitioner in the case of Asghar AliSupra and are of the opinion that since the Hon’ble Supreme Court has already held that no appeal could be preferred under Article 185 of the Constitution of Islamic Republic of Pakistan, 1973, before the Hon’ble Supreme Court against an order passed by a Special Appellate Court, established under a Special Law, therefore, insofar as present petitioner is concerned, no appeal could have been preferred by the petitioner against the order impugned through instant petition. However, we may observe that mere fact that no appeal is provided under Statute against an adverse order, an aggrieved person would acquire some right to invoke the extra ordinary Constitutional jurisdiction of this Court under Article 199, which is purely a discretionary relief to be extended to an aggrieved person having a prima facie case and could establish some constitutional or legal right or its infringement against which no alternate and efficacious remedy is available. Relief sought through a Constitutional petition under Article 199 of the Constitution; is discretionary in nature, and not a matter of right, like a first appeal or any other statutory appeal.In the instant matter, though we are of the view that no appeal could have been preferred under Article 185 of the Constitution of Islamic Republic of Pakistan, 1973, before the Hon’ble Supreme Court by the petitioner in view of the dicta laid down by the Hon’ble Supreme Court in the case reported as Asghar Ali Supra, however,after examining the facts and circumstances of the instant case,we are of the view that all along the petitioner has not been vigilant enough to pursue its case, as initially no appeal was preferred by the petitioner against the order dated 27.09.2005, whereby the property was ordered to be de-freezed. Subsequently, at a belated stage, after lapse of about 3 years, an application for rectification or recalling the order dated 27.09.2005 was filed, which appears to be an attempt to give a past and closed transaction a new life, and after dismissal of the rectification application, an Acquittal Appeal was preferred before the Special Appellate Court and after dismissal of such appeal, instant petition has been preferred. Once the petitioner has chosen not to file any appeal against an appealable order dated 27.09.2005, whereby the property in questions was ordered to be De-freezed, the matter had attained finality and no further application before the Trial Court could have been preferred on the ground of some mistake apparent on record which could be rectified by the learned Trial Court. In fact, the learned Trial Court had passed the order dated 27.09.2005 on merits and nothing has been brought on record to suggest that there was any mistake apparent on record in the said order, which could have been rectified by the Trial Court. Such conduct on the part of the petitioner, who did not bother to challenge the order dated 27.092005 before any forum provided under law for a period of about three years, and instead filed a rectification application, amounts to abuse the process of law and certainly disentitles the petitioner of any discretionary relief under Article 199 of the Constitution. The respondent No. 2has been dragged in unnecessary litigation for such a long period of time without any plausible justification on the part of the petitioner. Therefore, in view of hereinabove facts and circumstances of the instant case, we are of the view that, though no appeal lies before the Hon’ble Supreme Court against an order passed by the Special Appellate Court established under a Special Law, however, in the instant matter, the petitioner has not been able to point out any error or illegality in the impugned order(s) which may require any interference by this Court under Article 199 of the Constitution of Pakistan, which being discretionary in nature cannot be exercised in favour of the petitioner who has neither remained vigilant nor has approached this Court with clean hands, on the contrary, has made an attempt to re-open a past and closed order dated 27.09.2005 firstly by filing frivolous application for rectification and thereafter by filing instant petition both after lapse of several years beyond the period of limitation and also suffers from laches, which could not be explained by the learned Counsel for the petitioner.
9. Even otherwise, on merits of the case, we have noticed that in the instant matter it has categorically come on record that the property in question was purchased by respondent No. 2 much prior to the information filed under Section 31 of the Prevention of Smuggling Act, 1977 before the learned Trial Court and further, after recording of evidence in the matter a detailed and well-reasoned order had been passed by the learned Trial Court, whereby, the property in question was ordered to be de-freezed in favour of the respondent No. 2. At the very outset we may observe, that in the first instance, the petitionerapproached the learned Trial Court at a very belated stage when an application for freezing of the property in question was filed, without even ascertaining the fact that the said property already stood transferred in the name of respondent No. 2, much prior to the information available with the petitioner. Moreover, the Prosecutor appearing on behalf of the petitioner had conceded before the learned Trial Court, that the property in question was freezed on a wrong premise.However, after a lapse of about three years, a frivolous rectification application was filed on behalf of the petitioner in the year 2008, without explaining limitation or pointing out any mistake apparent on record in the order dated 27.09.2005. This was in fact an attempt to further harass the respondent No. 2, on flimsy grounds and to revive an already settled matter. Nothing has been brought on record which could otherwise suggest that the order dated 27.09.2005 was passed without appreciating the evidence on record. The petitioner has failed to substantiate or convince us from the entire evidence on record that respondent No.2 had not purchased the property from her legitimate source of income or whether she had any direct or indirect relation with respondent No. 1,against whom the entire case of the petitioner rests. It has also come on record through evidence that the property in question was already “B”-Leased by D.H.A. much prior to request of the freezing made by the petitioner, and was purchased by the respondent No. 2 through a registered Sale Deed No. 4892 registered with Sub-Registrar T-Division-II-Karachi on 29.10.1987 and M.F. Roll No. 430 dated 8.11.1987 before Photo Registrar, Karachi after due publication by the respondent No.2 in Newspaper. Such piece of evidence has not been controverted or shaken before the Trial Court as apparently the petitioner had chosen not to cross examine the respondent No.2. In view of hereinabove facts and circumstances of the instant case, we are of the view that the petitioner has filed instant frivolous petition to drag the respondent No.2 in unnecessary litigation, and vexatious proceedings, which amounts to abuse of process of law. We may further observe that sanctity is attached to all judicial and quasi-judicial orders, and unless such orders are set-aside through some judicial or quasi-judicialorders by competent Court of jurisdiction or the authority, within the stipulated period as provided under the law, substantial legal rights accrue to the person in whose favour such order has been passed by the Court/Authority.
10. Accordingly, we do not find any substance in this petition, which otherwiseis misconceived in facts and law, whereas, the petitioner has miserably failed to point out any illegality or error in the impugned order(s) passed by the Courts below, nor could explain the point of limitation and laches involved in this case. Keeping in view the facts and the legal position as stated hereinabove, we dismissed instant petition vide our short order dated 19.02.2015 in limine with cost of Rs.5000/- to be deposited in the account of High Court Clinic,and theseare the reasons for the short order.
J U D G E
J U D G E
ARSHAD/