The STATE/ANTI-NARCOTICS FORCE Versus MERAJ RASOOL
FAHIM AHMED SIDDIQUI, J.--- The appellant through the instant special criminal appeal impugns the Order of learned Special Judge CNS-II (also empowered as Special Judge (Customs and Anti-Smuggling) dated 04.02.2016, whereby released the property bearing House No. 66/1-B, 8th Street, Phase-V, DHA Karachi for which a freezing order was earlier passed. It is the contention of the appellant that they felt themselves seriously aggrieved and dissatisfied with the impugned order as the property in question was the part of a pending trial case.
2. The facts of the case leading to this appeal are that Inspector Muhammad Ahmed Tatari of ANF filed an information under Section 31 of Prevention of Smuggling Act 1977 before the learned Special Judge of Customs and Anti-Smuggling at Karachi in the year 1995 for the forfeiture of properties acquired by drug baron Muhammad Anwar Khatak, his family members and associates through drug money. The said drug baron was arrested along with others by the Customs Intelligence and Investigation in FIR No. V-765/85 on 25.04.1985. The learned Special Judge Customs and Taxation, Karachi convicted the said Muhammad Anwar Khatak on 13.07.1991 and sentenced him for 7 years R.I. and Rs. 50,00,000/-. Muhammad Anwar Khatak was also convicted on 21.03.1997 for 4 years imprisonment by the District Court, Eastern District of New York for the smuggling of drugs besides he was also an absconder in FIR No. 155/1983. During investigation regarding the assets of Muhammad Anwar Khatak, his family members and associates generated from drug money, several properties were revealed including the aforementioned property released vide impugned order.
3. The learned counsel for the appellant, while pressing the instant appeal, submits that the learned Special Judge CNS-II has not appreciated the correct and proper position that an information has already been furnished with complete details. According to her, the property was purchased by the drug baron Muhammad Anwar Khatak in the name of his wife Mrs. Abida Ali Ahmed daughter of Ali Ahmed as Benami, who sub-divided the said property in three plots and amongst them one was sold out by her to Mr. Zafar Zuberi from whom the same was purchased by respondent Meraj Rasool and presently it stands in his name. She further submits that the remaining two plots were sold out to Muhammad Rafiq which were subsequently amalgamated and presently the same stands in the name of Naveed Husan. According to her, since other properties have been released after furnishing PR bond; therefore, if the property is going to be released then at least a PR bond should be furnished by the respondent No. 1.
4. As against the above, the learned counsel for the respondent No 1 submits that the respondent No. 1 is neither a relative of Muhammad Anwar Khatak nor his associate. He submits that the respondent No. 1 is a renowned figure of town who is engaged in a reputable business of publishing of different monthly magazines and tabloids and having no criminal record. He submits that the property in question was originally allotted to Brig. Hafiz-ur-Rehman and subsequently transferred to various persons namely Dr. Saeed Khan, Abdul Latif, Munazara Khatoon, Miss Abida, Ali Ahmed and then Mr. Zafar Zubairi from whom the same was purchased by respondent No. 1 in the year 1993. He submits that the information under section 31 of Prevention of Smuggling Act in 1995 was made by Inspector Tatari but the name of respondent No. 1 is not there in the list provided by him. He refers to the said list filed by the appellant which is available at page 39 of the instant appeal. He submits that the respondent No. 1 has got the said plot purchased in his name, plan was approved, completion plan was issued and the said property is being shown continuously in tax returns filed by the respondent No. 1. He submits that the prosecution witness Inspector Tatari in his affidavit of evidence has not levelled any allegation against respondent No. 1. He also refers to the cross conducted by the counsel of respondent No. 1 to Inspector Tatari and submits that the said Inspector admits that respondent No. 1's property is not included by him in his information furnished to the court. He submits that even no notice under Section 31 of Prevention of Smuggling Act was ever issued to respondent No. 1. In the end he submits that the order passed by the Special Judge is proper, and needs to be maintained.
5. After hearing the arguments advanced from either side, I have scrutinised the entire record available and referred during the course of arguments. It is the contention of learned counsel for the appellant that the property in question is one regarding which an information was furnished before the Special Judge and the same thus amongst the freezing properties. The list furnished by Inspector Tatari is annexed by the appellant with the memo of appeal and I have gone through the same. It is a fact that the name of respondent No. 1 is not mentioned in the said list. It is neither pleaded nor proved by the appellant that the respondent No. 1 is a relative or associate of the drug baron Muhammad Anwar Khatak. On the contrary, it is pleaded that respondent No. 1 is one of the renowned personalities of the town and having no criminal record. There is no allegation by the appellant or anyone else that the respondent No. 1 is a benami owner of the said property. It is specifically alleged in the appeal that the property was purchased by respondent No. 1 below the market value but in this respect, no proof is produced besides in absence of any proof, purchasing or documenting a property below market rate is not sufficient to presume that the respondent No. 1 has any nexus with the drug baron Muhammad Anwar Khatak. The property in question is being shown by the respondent No. 1 in his tax returns and copies of such tax returns have been filed by the counsel of respondent No. 1 under his statement.
6. Another aspect of the case is important. Inspector Muhammad Ahmed Tatari is the star prosecution witness, who has furnished information under section 31 of Prevention of Smuggling Act, 1977 before the learned Special Judge of Customs and Anti-smuggling at Karachi in the year 1995. The said inspector has filed his affidavit in evidence and he was cross-examined by the counsel of respondent No. 1 at length. The said witness has said in his affidavit in evidence that the property was already purchased by the respondent No.1 and this fact is admitted by him during cross-examination. What is more, during cross-examination he has admitted that he has not included the property of respondent No. 1 in the list provided under section 31 of Prevention of Smuggling Act, 1977. The relevant portion of cross-examination of Inspector Tatari is as under:--
"I see paras-6 and 17 of my affidavit-in-evidence and say that I have mentioned therein that prior to giving in formation the property in question was already purchased by Applicant Meraj Rasool. I do not know whether adjoining properties released by this Court. Prior to giving in formation I never served any notice to Applicant Meraj Rasool. It is correct to suggest that I have not made Meraj Rasool as party in this case. It is correct to suggest that no role has been assigned to him. It is correct to suggest that Meraj Rasool had purchased the property from Zafar Zuberi not Abida Ahmed Ali".
From the above cross-examination of an important witness of the appellant, it becomes evident that in fact there is nothing available with ANF against the respondent No. 1 and the property owned by him. When no notice was given to respondent No. 1, no allegation was made against him and even he was not made party in any respect, then no question of freezing his property arises. I am of the view that in the existing position of affairs, it will be unjust to demand or direct to execute a PR bond at the time of de-freezing the property of respondent No. 1.
7. The ultimate outcome of the above discussion is that the impugned order is rightly passed by the learned Special Judge CNS-II Karachi and the same does not require any interference by this court in appellate jurisdiction.
8. The above are the reasons for my short order passed on 06-09-2018, whereby instant Special Criminal Appeal was dismissed.
SA/S-44/Sindh Appeal dismissed.