THE STATE/ANTI NARCOTICS FORCE through Deputy Director vs MEHBOOB UR

ORDER

1. ' This criminal acquittal appeal arises out of the judgment dated 20-7-2008 passed by the Judge Special Court-II, C.N.S., Karachi, acquitting the respondent of the offence he was charged with, with the prayer that the same may be set aside and the respondent may be convicted and sentenced under sections 12,13 of the C.N.S. Act, 1997, and the property of the respondent shown in the case, be ordered to stand forfeited, in favour of the government, being crime proceeds.

2. ' Necessary facts of the case are that the appellant ANF challaned the respondent in the court of the Judge, Special Court-II, C.N.S., Karachi, for trial of the offence under sections 12,13 against F.I.R.

3. No,30 of 2002 of Police Station ANF Clifton, Karachi, together with the prayer for an order of forfeiture of his movable and immovable property being crime proceeds. The trial court recorded the evidence of the parties consisting of S.I.P. Ghulam Abbas, S.H.O., Police Station ANF Clifton, Karachi, Syed Sher Ali Shah Shirazi, and A.S.I.P. Shakeel Ahmed, being P.Ws.1 to 3 and statement of the respondent under section 342, Cr. P.C. Respectively. The trial ended in acquittal of the respondent and dismissal of the claim of the appellant of forfeiture of the said property under the relevant sections of law. It is a second round of litigation since the appellant had already prosecuted the respondent for possession of the narcotic substances under F.I.R. No,2 of 199$ and another F.I.R. No,4 of 1998 and the trial in both the said F.I.Rs, ended in acquittal of the, respondent by the respective trial court thereof. In other words, the present F.I.R. No,30 of 2002 and prosecution as well as trial thereagainst, stood based on the aforementioned F.I.Rs in which the respondent had already stood acquitted and the charge framed against him in the respective trial of each of them, stood held 'not proved' beyond shadow of any reasonable doubt. The said acquittal(s) of the respondent went unchallenged on the part of the appellant, for the reason well known to the appellant/ANF.

4. ' By our short order dated 6-5-2010, we dismissed the appeal for the reasons to be recorded later on.

5. ' We have heard the learned Special Prosecutor and the learned counsel for the respondent and carefully perused the record as well.

6. ' The learned Special Prosecutor failed to point out any material error in the impugned findings, yet his contention is that the provisions of section 68 of the C.N.S. Act, which carries a provision of presumption for the property being proceeds of crime thereunder, is binding in nature, and the learned trial court was under obligation to pass an order for forfeiture of the property in question, in favour of the government, on the basis thereof. We have carefully perused the provisions of section 68 of the Act, which by itself, lays a stress on presence of reasonable ground for the belief -required to be established as condition precedent for putting the said presumption to practice against any property claimed as proceeds of crime relating to the aforesaid Act. In other words, the instant provisions of law, no doubt does carry a presumption as pinpointed above, yet it does not mean that the matter so presumed should be taken as granted for the purpose of enforcement of the aforesaid sections of law in letter and spirit, which being punitive in nature, need to be construed strictly; nor does it allow the court to bye-pass the law and system, which require adjudication of such like matter, only on the basis of positive evidence and not on mere assumptions; and similarly, the said provision of law, by itself, does not absolve the prosecution (the appellant) of the constitutional liability of establishing the claim and crime thereunder, before obtaining an order of conviction and that of sentence and forfeiture of property of the accused. The words "reasonable ground to believe" used in the said section of law give a positive impression of the intention of the provision in question or that of the law maker, that the property whenever claimed to be crime proceeds, must stand so established up to the mark, like in all other criminal cases. The record shows thit there is no positive evidence against the charge and the claim in question, at all. The impugned judgment shows that the investigation carried out in respect of the aforesaid two F.I.Rs, and the evidence led in the said trials, both did not carry the claim in question, and there had been no order of freezing the property in question under section 37 of the C.N.S. Act, on the part of the appellant or otherwise; there appears issuance and service of no notice against the respondent to seek his explanation of the said claim; and there seems no move made by the appellant to the trial court to enforce the claim in question at that relevant time, in the said first round of litigation. The claim in question, is an afterthought being unnecessarily belated, and is unjust particularly when at the very initial stage, the appellant remained silent until the respondent stood acquitted from the charge of the 'possession' and that of 'recovery' of the narcotic substances. The appellant seems to have failed to establish the respondent as drug peddler, being the first and foremost element of facts justifying for proceedings against the perpetrator of crime and his property under the aforesaid provision of law. Besides, there is no record of narcotic business or dealings, against the respondent in the matter. Needless to mention that mere pendency of any case under the said Act, either in investigation or at trial, alone, does not prove its subject 'drugs dealer' and the property as crime proceeds so as to attract the provisions of law applied in the instant case.

7. ' The appellant should have reasonably carried out the investigation of the property in question being crime proceeds, together with the indictment of the respondent after his arrest and effecting recovery of the narcotic substances culminating in prosecution and trial there against under the F.I.R. Of the first round of litigation; and that the charge and claim under sections 12/13 of the C.N.S. Act should have been levelled together with the charge of possession and recovery of the narcotic substances, and the material collected there against, should have been placed before the trial Court together with the charge-sheet presented in the matter of the aforesaid F.I.R(s) and simultaneously, necessary steps of serving the notice upon the respondent and freezing his property whatsoever, as crime proceeds, should have taken place together with the investigation steps, which culminated in the said trial(s). Thus, this second move against the respondent with no positive record particularly after the failure of the appellant in the first combat in trial court's enclosure, can hardly be appreciated as fruitful exercise in public interest.

8. ' Consequently, we are, of the considered view that the judgment impugned in this appeal is well- reasoned and there appears no misreading or non-reading of evidence. We, therefore, do hereby uphold the same and accordingly dismiss the appeal.

9. ' The above are the reasons for the short order passed on 6-5-2010.