Find a Lawyer

ANTI NARCOTICS FORCE versus PARVEZ HASSAN HARAVI

Constitution Pakistan, Overseas convicted person's assets Article 12 - Protection against frustration The narcotics control law, 1997 had no prejudicial effect and in nature it was only possible provided for in Article 12 of the Constitution The principle was added, that no law shall authorize an individual to punish an act or error which is not lawful at the time of the act or error, except for such general rule as may exist, But this is rarely and is generally applied when the former is a clear indication of the identity of the legislature. , As was provided in section 1 of the Act Nar's stances substances Narcotic Control Act 1997 that 1997 has been specifically described in 1997 it will be implemented once the Act's passage. It was July 11, 1997, and as such, no previous legislation was intended for this law. Therefore, T passing, 1997 1997 was applicable for offenses committed under this law after the date of its adoption question. Property purchased by the foreign court eleven years before the defendant was sentenced, followed by Had nothing to do with crime. 1997; therefore, the property was not subject to confiscation in favor of the federal government under section 40 of the Drug Abuse Act 1997 [PP 147, 148, 149] A, B, C, D, E, F, G&H.

P L D 2017 Sindh 140 

Before Ahmed Ali M. Shaikh and Mohammed Karim Khan Agha, JJ

THE STATE/ANTI NARCOTICS FORCE, MINISTRY OF INTERIOR NARCOTICS CONTROL through Deputy Director (Law), Karachi—Appellant

versus

PARVEZ HASSAN HARAVI and another—Respondents

Criminal Appeal No.7 of 2016, decided on 8th June, 2016.

(a) Control of Narcotic Substances Act (XXV of 1997)—

—S. 40—Anti-Narcotics Force Act (III of 1997), 6(5)—

Constitution of Pakistan, Art. 12—of assets of person convicted abroad—Protection against retrospective punishment— Control of Narcotic Substances Act, 1997 had no retrospective effect and was only prospective in nature—General principle was enshrined in Art. 12 of the Constitution, which provided that no law would authorize the punishment of a person for an act or omission that was not punishable by law at the time of the act or omission—Exception to such general rule might exist, but the same were rare and generally applied when the retrospective effect had been provided specifically in the statute, being a clear manifestation of the intention of the Legislature—Section 1 of Control of Narcotic Substances Act, 1997 specifically stated that the Act would come into force at once on the date of passing of the Act, which was 11th July, 1997, and as such, there was no intention on part of the Legislature for the Act to be retrospective—Control of Narcotic Substances Act, 1997 was, therefore, applicable to offences committed under the Act after date of its passing—Property in question, having been purchased 11 years before the conviction of the respondent by the foreign court, had no nexus to offence related to offences committed after 1997; therefore, the property was not subject to forfeiture in favour of the Federal Government under S. 40 of Control of Narcotic Substances Act, 1997. [pp. 147, 148, 149] A, B, C, D, E, F, G & H

Khan Asfanyar Wali Khan v. Federation of Pakistan PLD 2001 SC 607; Mst. Saiwar Jan v. Mukhtar Ahmed PLD 2012 SC 217; Lt.-Gen. (Rtd.) Jamshcd Gulzar v. Federation of Pakistan 2014 SCMR 1504 and Haji Nawab Din v. The State PLD 1996 Lah. 304 rel.

(b) Control of Narcotic Substances Act (XXV of 1997)—

—Ss. 40 & 39—Anti-Narcotics Force Act (III of 1997), S. 6 (5)— Forfeiture of assets of person convicted abroad—Laches, principle of— Applicability—Delay in initiation of forfeiture proceedings—Effect— Time period permissible for applying for forfeiture proceedings—No application for forfeiture was moved before the Special Court until approximately 2 years after dismissal of initial application by the High Court and later by the Special Court in 2005—Time limit for forfeiture under S.39 of the Act ought to have been a reasonable time which generally was regarded as 90 to 120 days—Department, having come to know of the respondent's conviction by the foreign court, should have perused its forfeiture application vigorously—Department did not show any reasonable explanation for the delay in moving the applications— Application under S. 40, of the Act, therefore, having been hit by the doctrine of laches was not entertainable.

[pp. 154, 155* 156] U, V, W & X

The State v. Rana B.Nisar Ahmed 2012 SCMR 167 rel.

(c) Control of Narcotic Substances Act (XXV of 1997)—

—Ss. 40, 37, 39, 19, 12 & 68—Anti-Narcotics Force Act (HI of 1997), S. 6 (5)—Constitution of Pakistan, Arts. 4, 23 & 24—Forfeiture of assets of person convicted abroad—Freezing of assets—Order for forfeiture of assets—Forfeiture of assets of respondents—Prohibition of acquisition and possession of assets derived from narcotic offences— Presumption of assets acquired through dealing in narcotics—Right of an individual to be dealt with in accordance with law—Protection of property rights—Respondents had been convicted in United Kingdom in 2000 for drug related offences and sentenced to 11 years’ imprisonment, for which the Anti-Narcotic Force filed application for forfeiture of the property owned/pur chased by the respondent/wife of the convict on the ground that property had been acquired through proceeds arising out of the trade in illegal drugs by her husband and she was simply a benamidar, which was dismissed by the Special Judge Control of Narcotic Substances—Questions before the High Court were that whether the property was from the proceeds of drug related crimes under the Control of Narcotic Substances Act, 1997 to be forfeited under S.40 of the Act; whether the Anti-Narcotics Force through evidence had shown reasonable grounds that the respondent/wife of the convict could not afford to purchase the property or the same belonged to her genuinely or as benamidar, and whether present case was of no evidence—Section 39 of the Act applied to convictions by the Special Court under the Act—No conviction, in the present case, however, had been made by the Special Court—Under S,39 of the Act, the Special Court could order forfeiture of assets derived, generated or obtained in contravention of S.12 of the Act or were liable to be forfeited under S:19 of the Act—Section 40 of the Act applied only to assets acquired through drug related offence in the foreign jurisdiction—Under S. 40 of the Act, there was a right for the affected party to be heard to enable to show that the assets had not been derived from a drug related offence—Presumption of S. 68 of the Act would only kicked in if there were reasonable ground to believe that the assets of a person or any part thereof were acquired before or after the commission of an offence under the Act, and there was no other source of acquiring such assets or part thereof, and it would be presumed, unless contrary was proved, that such assets or part thereof were acquired, generated or obtained through narcotic related offences—Section 40 of the Act, therefore, would apply to the assets which had been acquired through drug related offences under the Control of Narcotic Substances Act, 1997—Assets in terms of a person’s property could not be easily interfered with bearing in mind the protection given to property under Arts. 4, 23 & 24 of the Constitution—Department had to prove that the property had been acquired through a drug related offence under Control of Narcotic Substances Act, 1997, and that the same belonged to the accused and not his wife, or his wife was holding the same as a benamidar on his behalf or at the minimum there were reasonable grounds for so believing under S. 68 of the Act—Even if S. 68 of the Act could be relied upon, the petitioner would have to show through evidence that there were reasonable grounds to believe that the assets of a person or any part thereof had been acquired before or after the commission of an offence under the Act—Reasonable grounds must be more than suspicion—Department, in order to show existence of benamidari, had relied upon a Supplemental Lease deed which being an unregistered photocopy, paled into insignificance when the same was compared with the registered sale deed produced by the respondent, to which presumption of correctness applied, whereby his wife had purchased the property—Department, therefore, had no reasonable grounds under S.68 of the Act to believe that the property had been acquired before or after the commission of an offence under the Act, and as such, the burden of proof would not shift to the respondent/wif e-—High Court observed that as result of conviction of brother of the respondents, certain properties belong to said convict am the respondent's property had been forfeited for offence under the Act, but the property in question had not been included in the list of forfeiture {ike Supreme Court, however, setting aside the conviction of the brother of ike respondent, had released the property)—Investigating Officer had admitted that he had no evidence that the property had been purchased from drug money except the conviction of the respondent in United Kingdom and also that he had no reasonable suspicion or satisfaction or proof that the property had been purchased by the respondent/wife pom drug money of her husband—No evidence was thus available to support the application under S. 40 of the Act-Impugned order was, therefore, upheld—Appeal was dismissed accordingly. [pp. 150, 151, 152, 153, 154, 156, 157] I, J, K, L, M, N, O, P, Q, R, S, T, Y, Z & AA

The State v. Umer Hayat 2011 SCMR 1527 rel.

Muhammad Ishaque Memon, Special Public Prosecutor ANF.for Appellant.

Muhammad Akram Shaikh for Respondent No.2 along with Behzad Haider for Respondents.

Date of hearing: 1st June, 2016.

online advocate from Sidhnoti lawyer