Section 37 : Freezing of assets, etc.
2023 SCMR 1709 SUPREME-COURT
State VS TASNIM JALAL GORAYA (DECEASED)
S.37—Dangerous Drugs Act (II of 1930) [since repealed], S.35-C—Constitution of Pakistan, Arts. 12 & 188—Protection against retrospective punishment—Scope—Conviction and sentence recoded by a foreign court for possessing and distributing heroin—Forfeiture of property in Pakistan—By way of judgment under review, the Supreme Court declared the forfeiture of the properties of deceased-respondent (represented through his legal heirs) to be unlawful and hence set it aside—Plea on behalf of the Anti-Narcotics Force (ANF) was that the assets of the respondent could also have been forfeited under the provisions of Dangerous Drugs Act, 1930 (“1930 Act”) [since repealed] and it did not matter that section 37 of the Control of Narcotic Substances Ordinance, 1995 (‘the Ordinance’) [since enacted as the Control of Narcotics Substances Act, 1997] was promulgated on 07.8.1995 after the conviction and sentence against the respondent in the USA in the year 1993—Validity—Said submission was absolutely misconceived—Section 35-C of the 1930 Act did not envisage foreign conviction, which was for the first time introduced in section 37 of the Ordinance in 1995, hence the offence committed in the USA in the year 1993 could not possibly attract section 37 of the Ordinance of 1995—Such aspect had been dealt with in the judgment under review in great detail and the petitioner (ANF) could not be allowed to re-argue the case in review jurisdiction—No ground was made out for the review of the impugned judgment.
2021 PCrLJ 1289 LAHORE-HIGH-COURT-LAHORE
Rana SANA ULLAH KHAN VS NATIONAL ACCOUNTABILITY BUREAU
Art. 199—National Accountability Ordinance (XVIII of 1999), Ss. 9, 19 & 16-A—Control of Narcotic Substances Act (XXV of 1997), S. 37—Corruption and corrupt practices—Call up notice—Assets beyond means—Freezing of assets—Pre-arrest bail, grant of—Scope—Accused sought premium of pre-arrest bail in a call-up notice issued under S. 19 of the National Accountability Ordinance, 1999 and the subsequent proceedings thereto regarding accumulation of assets beyond known sources of income—Held; accused was served with the call-up notice just after 3 days from the passing of a bail granting order in another case—Accused was required to appear in person before the Combined Investigation Team in connection with an inquiry initiated by the National Accountability Bureau (NAB) on three different complaints against the accused and others on allegations of accumulation of assets beyond known sources of income, whereas, all the assets and properties, subject matter of the inquiry, had already been frozen by the Anti-Narcotics Force on the allegations of having been acquired through involvement in narcotics trafficking and further process for continuation/confirmation of freezing was pending before the court of competent jurisdiction—National Accountability Bureau (NAB) could not take the cognizance of the matter with regard to the same properties without invoking the provisions of S. 16-A of National Accountability Ordinance, 1999—Prosecution had not explained that what prevented the Authorities from arresting the accused when he was already in custody and why had they kept the inquiry pending and never issued any call up notice to the accused and as soon as he was ordered to be released on bail by the court he was issued a call up notice—Constitutional petition was accepted and the ad-interim pre-arrest bail already granted to the accused was confirmed.
2020 YLR 2636 LAHORE-HIGH-COURT-LAHORE
State VS SARDAR MUHAMMAD alias SARDARA GUJJAR
Ss. 9 (c), 14, 15, 19, 37 & 48—Forfeiture of assets, refusal of—Acquittal—Accused was acquitted by Trial Court and the Court declined to forfeit his assets on the ground that his son and brother were involved in drug trafficking—Validity—Accused was tried for charges under Ss.9, 14 & 15 of Control of Narcotic Substances Act, 1997, along with other charges but he was not convicted and sentenced by Trial Court for the charge under S.9(c) of Control of Narcotic Substances Act, 1997, nor for abetment of the offence, as envisaged under S.15 of Control of Narcotic Substances Act, 1997—Accused was acquitted by Trial Court from all charges therefore, provisions of S. 37 of Control of Narcotic Substances Act, 1997, were not attracted against him—Authorities filed appeal malafidely against accused only on the ground that his son and brother were also accused in the case—High Court declined to interfere in the order passed by Trial Court as no illegality or material irregularity was pointed out in the order—Appeal was dismissed in circumstances.
2020 PCrLJ 84 LAHORE-HIGH-COURT-LAHORE
The STATE through Deputy Director (Assets) Regional Directorate Anti-Narcotics Force, Lahore VS ABDUL MAJEED BUTT
- 37—Freezing of assets—Scope—Order under S. 37(1), Control of Narcotic Substances Act, 1997 of freezing of the assets by the court is in the nature of interim arrangement till forfeiture or release of assets is directed, which is subject to final orders of the court—Section 37(2), Control of Narcotic Substances Act, 1997 directs Director General of Anti-Narcotics Force or authorized person to place freezing notice issued by them for freezing of the assets before the court within seven days and it is the court which has to decide the continuation or otherwise of such freezing notice.
2020 PCrLJ 84 LAHORE-HIGH-COURT-LAHORE
The STATE through Deputy Director (Assets) Regional Directorate Anti-Narcotics Force, Lahore VS ABDUL MAJEED BUTT
Ss. 37 & 19—Freezing of assets—Forfeiture of assets of pre-claimed offender—Scope—Anti-Narcotics Force assailed the order passed by Judge Special Court whereby application by subsequent purchaser of the property in question for discontinuation of freezing of properties was allowed—Validity—Anti-Narcotics Force had freezed the properties on 30/08/2001, whereas it had submitted the application under Ss. 37 & 19, Control of Narcotic Substances Act, 1997 for further freezing before Judge Special Court on 30/04/2002—Application for further freezing was submitted after expiry of 8 months, whereas freezing notice, as per S. 37(2), Control of Narcotic Substances Act, 1997 lost its sanctity after expiry of 7 days—Agreement to sell between proclaimed offender and subsequent purchaser was executed on 18/02/1998— Properties were transferred in the name of subsequent purchaser by Co-operative Housing Society on 30/05/1998—Accused person was declared to be a proclaimed offender in the year 2001—Entire transaction of purchase/transfer was conducted when no notice of freezing of properties was in field—Impugned order was based on solid reasons and no illegality was pointed out, calling interference by High Court—Appeal was dismissed accordingly.
2020 YLR 1861 KARACHI-HIGH-COURT-SINDH
The STATE/ANTI-NARCOTICS FORCE VS SHAH MUHAMMAD alias SHAHAN
Ss. 6, 9(c), 8(b), 12, 13, 19 & 37—Possession of narcotics, trafficking or financing the trafficking of narcotic drugs, acquisition and possession of assets derived from narcotic offences, forfeiture of assets of an offender, freezing of assets—Appreciation of evidence—Appeal against acquittal—Benefit of doubt—Accused persons were seen by raiding party in possession of narcotics when two of them escaped from the spot and one was arrested—Prosecution case was doubtful for the reason that two persons had escaped from the spot in the presence of trained officials of Anti-Narcotics Force, which was not understandable—Prosecution had failed to prove safe custody of the narcotic substance and its safe transmission to the Chemical Examiner—Trial Court had rightly pointed out infirmities in the case of prosecution—Judgment passed by trial court was neither arbitrary nor capricious—Scope of appeal against acquittal was considerably narrow and presumption of innocence was attached to the order of acquittal—Appeal against acquittal was dismissed, in circumstances.
2017 PLD 140 KARACHI-HIGH-COURT-SINDH
THE STATE/ANTI NARCOTICS FORCE, MINISTRY OF INTERIOR NARCOTICS CONTROL VS PARVEZ HASSAN HARAVI
Ss. 40, 37, 39, 19, 12 & 68—-Anti-Narcotics Force Act (III 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/purchased 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/wife—High Court observed that as result of conviction of brother of the respondents, certain properties belong to said convict and 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 (the Supreme Court, however, setting aside the conviction of the brother of the 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 from 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.
2014 PCrLJ 267 QUETTA-HIGH-COURT-BALOCHISTAN
ALI JAN VS State
Ss. 9(c), 37 & 39—Possessing and trafficking narcotics—Freezing and forfeiture of assets—Amount lying in the accounts of accused had been improperly seized and confiscated, as the Trial Court failed to inquire properly and adjudicate upon the application filed under S.37 of Control of Narcotic Substances Act, 1997—Trial Court failed to put substance of the allegation to accused; and did not give the accused a chance to show that amount lying in his account was not the proceed of the narcotics—Prima facie, duty of Anti-Narcotics Force Authorities was to collect material to connect the alleged account that was maintained by accused; and showing that same was the result of the proceed of the narcotics; and that he had no other means to earn or deposit the amount—Impugned order being not legal was set aside—Application filed by the Anti-Narcotics Force under S.37 of the Control of Narcotic Substances Act, 1997, would be treated as pending before the Special Judge concerned, who was directed to observe the legal formalities as provided under S.39 of the Control of Narcotic Substances Act, 1997 and to decide the matter in accordance with law.
2013 PCrLJ 208 KARACHI-HIGH-COURT-SINDH
SHER BANO VS FEDERATION OF PAKISTAN through Secretary Ministry of Narcotics, Islamabad
Ss. 21 & 37—Constitution of Pakistan, Art. 199—Constitutional petition— Freezing order, notice of—Scope—Freezing of bank account—Procedure—Grievance of petitioner was that conviction was awarded to her son by Trial Court but authorities had frozen her bank account—Validity—Freezing order was always an interim arrangement till forfeiture or release of assets was directed by Court—Difference between freezing of assets by court or Director-General of Anti-Narcotic Force (ANF) or authorized person, as appeared from S.37(2) of Control of Narcotic Substances Act, 1997, was that Director-General or authorized officer had to place freezing notice issued by them before court within seven days and it was the Court which had to decide continuation or otherwise of such freezing notice—Where court did not provide continuation to freezing notice issued by Director-General of Anti-Narcotic Force or authorized officer, the same lost its sanctity after expiry of 7 days and assets would automatically stand released—Where continuation to freezing notice was granted by court or the court directed freezing of assets till trial finalized, then, unless court forfeited assets by passing separate reasoned order or through judgment, the assets automatically stood released upon pronouncement of judgment for the reason that forfeiture of assets, except where accused was convicted for an offence under S.12 of Control of Narcotic Substances Act, 1997, was not a sine qua non to conviction but subject to the conditions prescribed under S.39 of the Control of Narcotic Substances Act, 1997—Before directing forfeiture, Court must provide reasonable opportunity of hearing to person affected through such forfeiture in order to satisfy itself that assets sought to be forfeited had been derived, generated or obtained through such act or omission— Conviction of accused did not result in sentence of imprisonment exceeding three years, therefore, question of forfeiting of assets did not arise—High Court in exercise of Constitutional jurisdiction, declared notice of freezing of petitioner’s account of no legal effect and petitioner was free to withdraw her funds from her bank account—Petition was allowed in circumstances.
2009 PCrLJ 254 KARACHI-HIGH-COURT-SINDH
IMTIAZ JAWED VS State
Ss. 7/9(c) & 37—Defreezing of Bank account–Section 37 of the Control of Narcotic Substances Act, 1997, had empowered the Trial Court to order the freezing of the assets of the accused, his relatives and associates, if reasonable grounds appeared to believe that he had committed the offence punishable under the said Act—Paramount consideration for freezing of the assets of the accused depended on the existence of reasonable grounds for believing him guilty of the offence and overwhelming grounds were present in this regard—Impugned order refusing to defreeze the Bank account of accused did not call for any interference—Revision petition was dismissed accordingly.
2008 SCMR 1011 SUPREME-COURT
State VS PERVAIZ SALEEM
Ss. 37, 39 & 19—Constitution of Pakistan (1973), Art.185(3)—Leave to appeal was granted, inter alia, to examine as to whether the application filed by the Director-General, Anti-Narcotic, Force, seeking forfeiture of the property of the accused in terms of Ss.37, 39 read with S.19 of the Control of Narcotic Substances Act, 1997, was not competent and the Trial Court had the jurisdiction to entertain the same after the conviction of the accused, because the trial of co-accused was still pending for final decision before the same Court against his co-accused.
2008 MLD 1061 KARACHI-HIGH-COURT-SINDH
AHMED HUSSAIN VS State
- 497—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 7, 8, 9, 12, 13, 14, 15, 19 & 37—Bail, grant of—Challan was submitted after about 20 days from occurrence and charge was framed after lapse of four years of incident—No progress was made in the trial of case—Accused could not be kept behind the bars for an indefinite period for no fault of his own in delay of the trial of case—Accused was granted bail, in circumstances.
2006 PCRLJ 1251 KARACHI-HIGH-COURT-SINDH
QADIR BAKHSH VS State
—Ss. 497 & 188—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 7, 8, 9, 12, 13, 14, 15, 19 & 37—Qanun-e-Shahadat (10 of 1984), Art.38—Bail, grant of—Captain of foreign ship called personnel of Anti-Narcotic Force, at his ship and handed
2003 PCRLJ 1700 KARACHI-HIGH-COURT-SINDH
MUHAMMAD LATEEF VS THE STATE
—-S. 497—Control of Narcotic Substances Act (XXVII of 1997), Ss.6, 7, 8, 9, 12, 13, 14, 15 & 37—Bail, grant of—Contention of the accused was that although according to Mashirnama 4 Kgs. of Charas was alleged to have been recovered from the possess