IN THE SUPREME COURT OF PAKISTAN 
 
(Appellate Jurisdiction) 
 
 
PRESENT: 
MR. JUSTICE EJAZ AFZAL KHAN 
MR. JUSTICE MAQBOOL BAQAR 
MR. JUSTICE FAISAL ARAB 
 
 
CRIMINAL APPEAL NO. 35-K F 2016 
(Against the judgment dated 16.06.2016 
of the High Court of Sindh, Karachi 
passed in Crl. Appeal No. 7/2016) 
 
 
The State/Anti Narcotics Force 
Appellant(s) 
 
VERSUS 
 
Parvez Hassan Haravi & another 
Respondent(s) 
 
 
For the Appellant(s) 
: Raja Inam Ameen Minhas, Spl. Prosecutor, ANF 
Ch. Ehtasham ul Haq, Spl. Prosecutor, ANF 
M. Tariq, Dy. Director 
 
 
 
For Respondent No. 2 
: Mr. M. Akram Sh, Sr. ASC 
Syed Rifaqat Hussain Shah, AOR 
 
 
 
Date of Hearing 
: 12.02.2018 
 
 
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JUDGMENT 
 
 
 
MAQBOOL BAQAR, J. Having failed in their attempts to 
obtain an order for forfeiture of a property bearing Bungalow No. 22-A, 
KDA Scheme No. 2, Karachi, under section 40 of the Control of Narcotics 
Substance Act, 1997 (CNS Act) before the Special Court, Control of 
Narcotics Substance-II, Karachi (The Special Court), and thereafter before 
the High Court of Sindh, the appellant through the instant appeal has, 
with the permission of this Court, assailed the said two orders declining 
their request by the Special Court and the High Court on 05.11.2015 and 
08.6.2016 respectively. 
2. 
 
The property sought to be forfeited is in the name of the 
respondent No. 2, who is an ex-wife of respondent No. 1. The appellant 
claimed before the Courts below that the property has been purchased 
by respondent No. 1 with the money he acquired through trafficking in 
narcotics substances, and that since he has been convicted by a Court in 
United Kingdom on the charge of attempting to smuggle narcotics, the 
property is liable to be confiscated under section 40 of the CNS Act.  
3. 
 
The CNS Act was promulgated on 11.07.1997 for controlling 
the production, possession and trafficking of narcotic drugs and 
Crl. A 35-K/2016 
 
 
 
 
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psychotropic substances. The Act also provides a comprehensive scheme 
for tracing, identifying, freezing and forfeiture of assets acquired through 
trafficking in narcotic substances, and thus section 37 of the Act 
empowers the Special Court trying an offence punishable under the Act 
to order freezing of the assets of the accused, but as stipulated in the said 
provision itself, such can only be done, where it appears to the Court that 
there are reasonable grounds for it to believe that the accused has 
committed such an offence. Whereas sub-section (2) of section 37 
empowers even the Director General and so also the officers authorized 
under section 21, to freeze the assets of the accused where the said 
officer is of the opinion that an offence under the Act has either been or is 
being committed by the accused, but the officers are required to, within 
seven days of the freezing, place before the Court, the relevant material 
enabling the Court, either to allow, or to disallow the freezing to continue. 
4. 
 
The purpose of tracing, identifying and freezing the assets of 
the accused, his relatives and associates during the investigation or trial, 
as stated through sub-section 3 of the above provision, is the ultimate 
forfeiture thereof by the Special Court. Whereas section 38 of the Act 
mandates that on receipt of a complaint or credible information or where 
Crl. A 35-K/2016 
 
 
 
 
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a reasonable suspicion exists about any person of his having acquired 
assets through illicit involvement in narcotics related activities, within or 
outside Pakistan, the officers, as designated therein, shall proceed to 
trace and identify such assets. Sub-section (2) of section 38 provides that 
where a citizen of Pakistan is charged before a foreign Court of 
competent jurisdiction for an offence which is also an offence under the 
CNS Act, the officers designated thereby, shall proceed to identify the 
assets of the said persons, and subject to the provision of sub-section (3), 
may freeze the said assets. Whereas in terms of sub-section (3) of section 
38 information about the assets traced as above has to be laid before the 
Special Court for the purpose of section 13 and section 19 in case action 
under the CNS Act, or any other law for the time being in force is initiated, 
and in case the person has committed the offence is outside Pakistan, 
before High Court for the purpose of forfeiture of assets under section 40. 
5. 
 
Whereas section 12 of the CNS Act places prohibition on 
possessing, acquiring, using, converting, assigning or transferring any 
assets which have been derived, generated or obtained directly or 
indirectly, either in his own name or in the name of his associate, relatives 
or any other person through an act or omission relating to narcotic 
Crl. A 35-K/2016 
 
 
 
 
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substances which constitutes an offence punishable under the CNS Act, 
the Customs Act, the Prohibition (Enforcement of Hudd), Order, 1979 etc 
or constituted an offence under any law repealed by the CNS Act. It also 
prohibits holding or possessing on behalf of any person any assets as 
mentioned hereinabove. The minimum punishment for contravention of 
section 12, as prescribed through section 13, is 5 years imprisonment. It 
also provides for forfeiture of such property to the Federal Government. 
Another provision for forfeiture is section 19 of the Act which reads as 
follows: 
“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 sentenced him to imprisonment for a term exceeding 
three years, the court shall also order that his assets derivable 
from trafficking in narcotic 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 thereto, have not been so acquired.” 
 
In terms of section 39 of the Act, in the event the accused is 
convicted under section 13, or is otherwise sentenced to imprisonment by 
the Special Court for more than 3 years, the Director General, Anti 
Narcotic Force (ANF), may through an application, request the Special 
Court for forfeiture of the identified assets of the convict or, as the case 
may be, his associate, relatives or any other person holding or possessing 
Crl. A 35-K/2016 
 
 
 
 
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such assets on his behalf. However, the order for forfeiture as ordained by 
sub-section (2) of section 39, can only be made by the Court upon its 
satisfaction that the assets sought to be forfeited were derived, generated 
or obtained in contravention of section 12 or/are liable to be forfeited 
under section 19, meaning thereby that only those assets shall be forfeited 
which have been acquired through an act or omission relating to 
narcotics substance which constitutes an offence punishable under the 
CNS Act. It is to ensure the satisfaction of the Court that the above criteria 
is fully met, that section 39 also required that no order thereunder be 
made without issuing a notice to show cause, and provides a reasonable 
opportunity of being heard to the persons being affected by such order. 
6. 
 
In the present case since the appellants are seeking the 
forfeiture on the basis of a conviction by a foreign Court, they have 
invoked section 40 of the CNS Act, which section provides that the 
Special Court, may, on an application of the Director General, Anti 
Narcotics Force, order for forfeiture of the assets acquired in Pakistan by its 
citizen who has been convicted by a foreign Court for an offence which is 
also an offence punishable under the CNS Act. It also provides that no 
order thereunder shall be made without providing an opportunity of being 
Crl. A 35-K/2016 
 
 
 
 
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heard to such citizen. Though section 68 of the Act provides for drawing a 
presumption that the assets acquired by a person before or at the time of, 
or after the commission of an offence under the Act, were so acquired, 
generated or obtained through cultivation, manufacture, production, 
sale, purchase, and dealing or trafficking of narcotics drugs, psychotropic 
substances or controlled substances. However the essential pre-requisite, 
as prescribed through the above provision itself, is the existence of a 
reasonable ground to believe that the assets were in fact so acquired i.e. 
through the above noted illicit acts, and that there was no other likely 
source of acquiring such assets.  
7. 
 
From the foregoing resumes of the relevant provision of law it 
can be seen that under the CNS Act prohibition on acquisition and 
possession is in respect only of those assets that have been derived from 
narcotics offences (section 12) and that the violation of the above, inter 
alia, entails forfeiture (section 13). Though the Director General and 
Officers authorized under section 21 may also freeze the assets of the 
accused, but within seven days of the freeze such officers has to place 
before the Court the relevant matter enabling the Court to decide either 
to allow, or to disallow the freeze to continue (sub section (2) of section 
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37). Even freezing of the assets of an accused, being tried for an offence 
punishable under the CNS Act cannot be ordered by the Court without 
there being reasonable grounds available for the Court to believe that 
the accused has committed such an offence (section 37). And further 
that even where the Special Court convicts a person for an offence under 
the Act, and sentence him to imprisonment for a term exceeding 3 years, 
the mandate of the Court to order forfeiture of his assets under section 19, 
is limited to only such assets which are “derivable” from trafficking in 
narcotic substances, however the word “derivable” as used in section 19, 
has not been so used to convey any attribute to any asset, as all and 
every asset, acquisition whereof is otherwise not barred or restricted by 
any law, is capable of being acquired, therefore it is only in the context of 
the means, capacity and capability of the convict that the word 
“derivable” has been used, and thus in this view of the matter, the assets 
of the convict can be forfeited only when there is a probability of the 
same having been acquired through illicit dealings in narcotics 
substances, and even then the accused has a right to be offered an 
opportunity to prove that the property has not been so secured  (section 
19). This besides being the only plausible interpretation, also get support 
Crl. A 35-K/2016 
 
 
 
 
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from the provisions of section 38 in terms whereof in the first place the 
authorised officer of the ANF can proceed to trace and identity the assets 
of only those regarding whom there is a complaint, or credible information 
or reasonable suspicion of having acquired assets through illicit 
involvement in narcotics, and secondly information about such asset for 
the purpose of section 40, is required to be placed before the High Court, 
so that, in our view, the Court may satisfy itself that the assets have been 
derived from the means and resource acquired through illicit involvement 
in narcotics. This view is further fortified, endorsed by the provision of 
section 39, which provides for forfeiture of the assets of a convict under 
the CNS Act, upon the request of the Director General, ANF, as in terms of 
thereof also, the satisfaction of the Court, that the assets sought to be 
forfeited were derived, generated or obtained in contravention of section 
12, or/are liable to be forfeited under section 19, is essentially required.    
8. 
 
So it can safely be said that under the CNS Act only those 
assets of a convict can be forfeited which have been derived, obtained 
or acquired through his illicit involvement in narcotics trade. Though 
section 40 of the CNS Act, which provides that where a citizen of Pakistan 
is convicted by a foreign Court for an offence which is also punishable 
Crl. A 35-K/2016 
 
 
 
 
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under the CNS Act, Special Court may on an application by the Director 
General or any other authorized officer, order that the assets acquired in 
Pakistan by such citizen shall be forfeited to the Federal Government, 
without explicitly saying that the acquisition of such assets should have 
been through illicit dealing in narcotics substances, however in view of the 
entire scheme of the law, particularly the provisions relating to tracing, 
identifying, freezing and forfeiture of the assets, which as noted 
hereinbefore, require not just a nexus between the asset(s) and the 
convict, but also that the assets should have been acquired or derived 
from narcotics trade, even when the investigation, trial and conviction 
has been conducted/rendered in Pakistan and therefore it would be 
wholly untenable to say that in case of a foreign conviction, the 
acquisition of the assets through illicit involvement of the convict in 
narcotics is not required to be shown, more so, when the section (section 
40) employs the word “acquisition” rather than the words like “owned” or 
“possessed” to connect the property with the convict, and makes it 
mandatory for the court to provide an opportunity of hearing to the 
convict before ordering forfeiture. Indeed as noted earlier, section 68 
allows a presumption as to the source/genesis of the assets, being 
Crl. A 35-K/2016 
 
 
 
 
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narcotics, but such, as prescribed by the said provision itself can only be 
presumed, where, firstly there are reasonable grounds to believe that the 
asset were acquired by a person, before or at the time of, or after the 
commission of an offence under the CNS Act, secondly, that there was no 
other likely source of acquiring such asset, and the presumption, so drawn 
as provided by the said section (section 68) is rebuttable. 
9. 
 
However, in the present case the appellant’s far from 
showing that the subject property has been derived or generated through 
any act or omission relating to narcotics, have not been able to show that 
the same has ever been purchased by respondent No.1, or that he has in 
any manner contributed towards its purchase. The property admittedly is 
in the name of respondent No.2, having been purchased by her from the 
previous owner, namely, Begum Azra Faruki, for a sale consideration of 
rupees nine lacs fifty thousands (Rs.950,000/-) on 02.2.1987, through a 
registered sale deed duly executed and registered on the said date. The 
said deed is exclusively in favour of respondent No.2, and the same does 
not, in any manner, refers to respondent No.1. The payment of the entire 
sale consideration amount being Rs.950,000/- is also shown to have been 
made to the seller by respondent No.2 only. However the appellant in 
Crl. A 35-K/2016 
 
 
 
 
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their feeble attempt to connect the properties with respondent No.1 have 
relied upon a photo copy of a purported supplemental agreement to sell 
dated 20.10.1986, allegedly executed between the said Mrs. Azra Faruki 
and the respondent No.1. A narration clause whereof reads as under:- 
“AND WHEREAS the Agreement dated 3.6.85 sets out 
the manner in which part payment was affected for 
Rs.8,50,000/= and vacant possession given on 01.07.85” 
And through its clause 1, it acknowledges payment of the purported 
balance sale consideration amount as follows:- 
“The Purchaser herewith pays to the Seller the 
outstanding balance of the sale price amounting to 
Rs.1,00,000/= the receipt of which the Seller does 
hereby acknowledge.” 
 
Whereas clause 5 of the said agreement stipulates as under:- 
“In the event of the failure of the Purchaser to 
complete mutation of the said property before the 
Registrar, before 30th January, 1987, the Purchaser 
agreed to pay to the Seller a further sum of 
Rs.1,00,000/- (Rupees lone lac only) as compensation to 
the seller.” 
 
In the first place as noted hereinabove, the above purported document, 
merely being an unattested, photo copy, cannot be relied upon, 
secondly, the same even otherwise neither can possibly prove that the 
property was conveyed to respondent No.1 on the basis thereof, nor has it 
been otherwise proved that it was in fact on the basis of the alleged 
payment mentioned in the said agreement that the property was 
Crl. A 35-K/2016 
 
 
 
 
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conveyed in favour of respondent No.2, whereas the sale deed in favour 
of respondent No.2 acknowledges receipt of the entire sale consideration 
from the said respondent, it neither refers to any payment from the 
respondent No.1 nor makes any mention of the aforesaid purported 
supplemental agreement to sale. The investigation officer of the appellant 
force, has admitted during his cross examination in the case that neither is 
there any evidence “that the property was purchased from drug money, 
except the conviction of Pervez Hassan Haravi”, the respondent No.1, in 
UK, nor is there any reasonable suspicion, or any proof that the property 
was purchased by respondent No.1 from drug money.  
10. 
 
In the circumstances, there was/is absolutely no justification 
to allow confiscation of the subject property, merely for the reason that 
the same was purchased by respondent No.2, while she was wedded to 
respondent No.1, and that too some 8 years before his arrest and about 
13 years before his conviction. 
11. 
 
Even otherwise, the provisions of section 40 of the CNS Act, 
which Act was promulgated on 11.7.1997, cannot be invoked for the 
forfeiture of the property purchased way back on 02.2.1987, when there 
was no provision for forfeiture of a property purchased by someone who 
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has been convicted for narcotics related offence by a foreign Court, as 
the same would be violative of the provisions of Article 12 of the 
Constitution of Islamic Republic of Pakistan, 1973. The provisions of section 
40 of the CNS Act could have been invoked and applied in respect of 
such purchase, only if the application of the said provisions would have 
expressly been made retrospective. We therefore do not find any 
substance in the above appeal and would therefore dismiss the same.  
 
 
 
 
  
 
 
 
JUDGE 
 
 
JUDGE 
 
 
 
JUDGE 
 
 
Announced in open Court On 04.5.2018  
at Islamabad 
 
 
 
JUDGE 
“APPROVED FOR REPORTING” 
Aamir Sh./