SHC sets aside 2004 order of property forfeiture under anti-smuggling law

The Sindh High Court has set aside an anti-smuggling court order with regard to forfeiture of property of two persons under the Prevention of Smuggling Act (PSA).

The appellants, Zaki Pasha and Tariq Irshad, had challenged the anti-smuggling court special judge’s order with regard to forfeiture of their property situated in the PECHS area of Karachi. According to the prosecution, the Anti-Narcotics Force alleged that the appellants, Irshad, Pasha and his brother Pervaiz Amir Ali, had acquired certain properties by way of smuggling narcotics and the same were liable to be forfeited under the prevention of smuggling law. The trial court, however, ordered the forfeiture of the property situated in PECHS Block 3.

The appellants’ counsel, Aamir Mansoob Qureshi and Ahmed Ali Hussain, submitted that the high court had already held after the enactment of the Control of Narcotic Substances Act 1997 (CNSA) that proceedings for forfeiting an asset allegedly acquired by proceeds of smuggling narcotics could only be taken under the CNSA, and proceedings taken in that regard under the Section 31 of the PSA were without any legal basis.

The counsel submitted that the entire case against Pasha was set up on a prior conviction in Canada in the year 1980 and firstly the prosecution had only produced a photocopy of that decision which was an inadmissible evidence. They submitted that a photocopy of the order itself recited that the conviction was on the count of trafficking narcotics within Canada and not for smuggling narcotics into Canada, which was a pre-condition for attracting the provisions of the sections 30 to 32 of the PSA.

They submitted that though Irshad was implicated as an associate of Pasha but there was no evidence whatsoever to show that the subject plot was purchased from the proceeds of smuggling, and Irshad had explained how he came to purchase part of the subject plot.

An ANF special prosecutor opposed the appeals and supported the impugned order to the extent of forfeiture of the subject plot. He submitted that the special judge had failed to appreciate the material placed before him with regard to the other properties which too had been acquired by way of smuggling narcotics.

A single bench of the high court comprising Justice Adnan Iqbal Chaudhry after hearing the arguments of the counsel observed that the informant and investigation officer (IO) of the case, Qadir Iftikhar of the ANF, had not been examined by the prosecution.

The SHC observed that it was stated that the IO had been dismissed from service in the year 2000 and had moved abroad. The high court observed that the prosecution examined ANF Assistant Director Manzoor Ali Rana who stated that the erstwhile IO had gathered the tax and wealth record of Pasha, but no such record was produced as evidence.

The high court observed that in fact, the entire testimony of Rana was based on what he had allegedly learnt from the dismissed IO at that time and thus it was hearsay. The bench observed that regarding the contention that the subject plot was the fruit of smuggling narcotics, the only evidence cited by the special judge was the photocopy of a short order passed on November 28, 1980, by a sessions court in Ontario, Canada, against Pasha and his brother Pervaiz, and the order in appeal on August 5, 1981, by the Supreme Court of Ontario, Canada. The SHC observed that even assuming that those photocopies were admissible evidence, those reflected that while Pasha was charged with offences under the Narcotic Control Act of Canada, he was convicted and sentenced only on the charge of trafficking narcotics within the Municipality of Metropolitan Toronto, but acquitted of the charge of importing (or smuggling) narcotics into Canada.

The court observed that in any case, there was no evidence before the special judge to even suggest that Pasha was involved in the smuggling of narcotics in the period of 17 years from his conviction in Canada in 1980 to the time he purchased the subject plot in 1997.

The SHC observed that except for drawing an inference from the above-mentioned conviction, the information placed before the special judge did not reveal any effort made to tie the subject plot to proceeds of narcotic smuggling. The high court observed that the ANF had never discharged the initial burden under the section 31 of the PSA to demonstrate that the subject plot could be reasonably suspected to be acquired by smuggling.

The SHC observed that the entire proceedings before the special judge were coram non judice and set aside the trial court order with regard to forfeiture of the property issued on June 2, 2004.