The State through Deputy Director (Law) vs Sardar Muhammad alias

ORDER

This appeal has been filed against order dated 17.03.2010 passed by the learned Judge, Special Court CNS, Lahore, whereby application filed by Muhammad Amjad Ali (respondent No.5) for release of his forfeited property was accepted.

2. As per brief facts of the present case, Muhammad Amjad Ali (respondent No.5) was an accused in case FIR No. 18 dated 15.05.1995 registered at Police Station PNCB District Lahore offences under Articles 3 and 4 of Prohibition (Enforcement of Hadd) Order , 1979 read with Sections 9/14/15 of the Control of Narcotic Substances Act, 1997 and Sections 324/332 and 353 of P.P.C. In the aforementioned case, Muhammad Amjad Ali (respondent No.5) has admittedly been acquitted by the learned trial Court vide judgment dated 27.07.2001. After acquittal, Muhammad Amjad Ali (respondent No.5) filed above-referred application for release of his freezed property i.e. bank account No. 100-5058-5, UBL, Renala Khurd Branch, as well as, his share in properties mentioned at serial Nos. 1, 9 and 10 of application bearing No. M.A.24/ 2012.2004. The abovementioned application of respondent No.5 was accepted vide impugned order dated 17.03.2010. Hence, the instant appeal before this Court.

3. Arguments heard. Record perused.

4. It is an admitted fact that Muhammad Amjad Ali (respondent No.5) was an accus ed in the abovementioned case FIR No. 18 of 1995 of Police Station P.N.C.B. District Lahore but he has been acquitted in the said case by the learned trial Court vide judgment dated 27.07.2001. No appeal against his, acquittal has been filed before any forum by the State. In the light of above, there was no justification to forfeit/free ze the property of Muhammad Amjad Ali (respondent No. 5), mentioned in his above-referred application. In this respect, Sections 19 and 37 of the Control of Narcotic Substances Act, 1997 are relevant. Sections 19 and 37 of the Act ibid read as under: "19. Forfeiture of assets of an Offender ---Notwithstanding anything contained in section 13, where the Special Court finds a person guilty of an offence punishable under this Act and is sentenced to imprisonment for a term exceeding three years , the Court shall also order that his assets derivable from trafficking in narcotics substances shall stand forfeited to the Federal Government unless it is satisfied, for which the burden of proof shall rest on the accused, that they or any part thereof have not been so acquired.(Bold and underlining supplied for emphasis).

37. Freezing of assets etc.---(1) Where the Special Court trying an offence punishable under this Act is satisfied that there appear reasonable grounds for believing that the accused has committed such an offence, it may order the freezing of the assets of the accused, his relatives and associates.

(2) Where in the opinion of the Director -General of an officer authorized under section 21 an offence is being or has been committed, he may freeze the assets of such accused and within seven days of the freezing shall place before the Court the material on the basis of which the freezing was made and further continuation of the freezing or otherwise shall be decided by the Court.

(3) The said officer shall trace, identify and freeze the assets during the investigation or trial for the purpose of forfeiture by the Special Court: Provided that the Director General, or as the case may be, the officer freezing any asset shall, within three days, inform the Special Court about such freezing and the Special Court shall, after notice to the person whose assets have been frozen, by an order in writing, confirm, rescind or vary such freezing."

It is therefore, evident from the perusal of abovementioned provisions of law that if an accused of offence punishable under the Act supra is sentenced to imprisonment for a term exceeding 03 years, only then a Court can order that his assets derivable from trafficking in narcotics substances be forfeited, whereas, in the instant case, respondent No. 5 has been acquitted by the learned trial Court. Insofar as Section 37 of the Act ibid is concerned, although under the said provision of law, a Court can pass an order for freezing of the assets of an accused, his relatives and associates and learned Special Prosecutor for A.N.F has argued that father and two brothers of Muhammad Amjad Ali (respondent No.5), namely , Sardar Muhammad alias Sardara, Muhammad Asghar and Muhammad Ashraf, respectively , have been convicted and sentenced by the learned Judge, Special Court CNS, Lahore vide judgment dated 27.07.2001 therefore, assets of respondent No.5 being their relative, can validly be forfeited under the abovementioned provisions of law but there is no substance in the abovementioned argument of learned Special Prosecutor for ANF because in this case, Muhammad Amjad Ali (respondent No.5) himself was an accused and he was tried for charges under Sections 9, 14 and 15 of CNSA, 1997 along with other charges but he has not been convicted and sentenced by the learned trial Court for the charge under Section 9-C of the Act ibid or for abetment of the said offence, as envisaged under Section 15 of the Act ibid rather , as mentioned earlier , he has been acquitted by the learned trial Court from all charges therefore, provisions. of Section 37 of the Act supra are not attracted in this case against respondent No.5. It appears that the instant appeal has malufidely been filed by the State against Muhammad Amjad Ali (respondent No. 5) only on the ground that he is relative (son/ brother) of the abovementioned rest of the accused of this case. No illegality or material irregularity in the impugned order dated 17.03.2010 has been pointed out by learned Special Prosecutor for ANF.

5. In the light of above discussion, there is no substance in this appeal therefore, the same is hereby dismissed .