Legal Principle & Question Decided

Ruling Summary: This decision was rendered by the Sindh High Court, officially reported as 2025 SHC 1219. In this matter between Cr.Bail 1211/2025 (S.B.) Sindh High Court, Karachi - NISAR AHMED S/O MUHAMMAD YOUNUS (Applicant) and the Respondent, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.

Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.

Full Judgment Text & Judicial Ruling

COURT: Sindh High Court CASE NO: Cr.Bail 1211/2025 (S.B.) Sindh High Court, Karachi CITATION: 2025 SHC KHI 1552 PARTIES: NISAR AHMED S/O MUHAMMAD YOUNUS (Applicant) ORDER DATE: 27-MAY-25 BENCH: Hon'ble Mr. Justice Khalid Hussain Shahani(Author) A.F.R: Yes ------------------------------------------------------------ Page 1 of 13

IN THE HIGH COURT OF SINDH AT KARACHI

Criminal Bail Application No.1141 of 2025.

Applicants : i. Qurban Ali son of M. Chand Badshah ii. Rizwan son of Muhammad Chand Badshah Through Mr. Shoukat Hayat, Advocate

Criminal Bail Application No.1211 of 2025

Applicant : Nisar Ahmed son of Muhammad Younus Through Mr. Raja Babar Hamid, advocate.

Respondent : The State through Mr. Sarfaraz Ahmed Mangi, Sp ecial Prosecutor ANF.

Date of hearing : 21.05.2025

Date of order : 27.05.2025

O R D E R

KHALID HUSSAIN SHAHANI, J. – Applicants, Qurban Ali, Rizwan and Nisar Ahmed seek post -arrest bail in a case bearing crime No. 13/2025, offence under Section 9(2)(9) read with Sections 14 and 15 of the Control of Narcotic Substances Act, 1997 (as amended in 2022), of Police Station ANF Clifton, Karachi. The applicants’ earli er bail pleas were declined by the learned Special Judge, CNS-II, Karachi, vide order dated 28.04.2025.

2. The case of the prosecution, as narrated in the FIR, is that on 10.03.2025, acting upon specific intelligence regarding international narcotics smug gling, ANF Inspector constituted a raiding party. The information suggested that a container bearing No. XINU 1640908, located at Karachi International Container Terminal (KICT) and purportedly consigned by M/s. Unique Enterprises, Landi Kotal, concealed n arcotic substances within towels and garments, and was intended to be illicitly exported to the United Arab Emirates. The alleged perpetrators included Idrees alias Cheena, Rizwan, Qurban Ali, and one Nisar Ahmed, a clearing agent. The raiding party procee ded to KICT, where the aforementioned container was located. Present at the site were three individuals: Nisar Ahmed (clearing agent), Qurban Ali, and Muhammad Rizwan, all of whom introduced themselves as the owners of the consignment. Owing to the unavail ability of independent witnesses, two

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ANF officials were nominated as mashirs. The documents produced by Nisar Ahmed reflected M/s. Unique Enterprises as the exporter and "AUTO LTD JAREL UAE KHLALI" as the importer of the goods. Upon opening the container and examining 150 plastic sacks contained therein, the raiding party recovered substantial quantities of narcotic substances from 10 of these sacks, which included: 50,000 tablets of Revotril, weighing 15.300 kg (gross); An additional 3,000 tablets of Revo tril, weighing 4.950 kg (gross); 16,950 capsules of Pregabalin, weighing 11 kg (gross); 135,600 tablets of Tramadol, weighing 90 kg (gross). All recovered substances were sealed on the spot for chemical analysis. Additionally, personal searches of the accu sed yielded CNICs, ATM cards, mobile phones, and cash. Three vehicles, a motorcycle, a Toyota Rocco, and a Toyota car, were also seized during the raid. A memo of recovery was duly prepared at the scene. Consequently, the instant FIR was registered on the basis of the above-stated facts.

3. The record reflects that upon arrest, the applicants were initially refused remand by a Magistrate. Thereafter, on 14.03.2025, they were remanded to judicial custody by the learned Judicial Magistrate -V, West, Karachi, who also noted apparent signs of physical maltreatment upon the applicants and directed for the submission of the final report. An interim challan was subsequently submitted on 16.04.2025, wherein the present applicants were arrayed as accused, while three co-accused were shown as absconders.

4. The learned counsel for the applicants, namely Qurban Ali and Muhammad Rizwan, advanced a number of contentions in support of the prayer for post -arrest bail. It was submitted that the applicants are innocent and have been falsely implicated in the instant case. According to the defense, the applicants were unlawfully apprehended on 10.03.2024 from Meerut Kabab House, situated at Gurumandir, Karachi, on the pointing of co -accused Nisar Ahmed, and were subjected to custodial maltreatment, which was duly observed by the learned Magistrate at the time of remand. It was further contended that the alleged recovered substances, specifically GABICA (Pregabalin), TRAMAL (Tramadol Hydrochloride Ph. Eur.), and RIVOTRIL (Clon azepam), are all duly registered pharmaceutical products, manufactured by licensed entities, namely Getz Pharma Ltd., Searle Company Ltd., and Martin Dow Ltd.

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respectively, and are readily available in the market for lawful therapeutic purposes such as treatment of epilepsy, neuropathic pain, panic disorders, and other medical conditions. The learned counsel submitted that the recovered substances do not qualify as psychotropic substances under the Schedule appended to Section 2(za) of the Control of Narcot ic Substances Act, 1997, and therefore, the jurisdiction of the CNS Court is ousted in terms of Sections 72 to 74 of the said Act, which are saving provisions vis - à-vis other special laws such as the Drugs Act, 1976. Regarding Rivotril (Clonazepam), the co unsel maintained that although clonazepam is listed in the schedule as a psychotropic substance, the manufactured tablet form constitutes a compound that may not fall within the statutory definition unless it conforms strictly to the scheduled chemical for mula (C15H10ClN3O3). This, according to the counsel, gives rise to a factual and legal controversy necessitating further inquiry. The learned counsel also raised serious concerns regarding procedural irregularities in the chemical analysis. It was pointed out that the samples were dispatched to the chemical laboratory on 11.03.2025, but the report was only furnished on 14.04.2025, i.e., after a lapse of more than 30 days, in contravention of Rule 5 of the CNS (Chemical Analysis) Rules, 2001. Moreover, the chemical report is alleged to be inconclusive, as it fails to disclose the precise percentage of the active ingredients, the exact chemical formula of the tablets, and whether the recovered substances fall within the purview of psychotropic substances. The authority of the Director Laboratories as a duly notified Chemical Examiner was also questioned. To support the plea for further inquiry, the learned counsel relied on various precedents from the superior courts wherein bail was granted in analogous circumstances. Reference was made to: Crl. Bail Application No. 1989/2021 (Mairajuddin & Others), wherein bail was allowed by this Court in a case involving recovery of Xanax and Diazepam tablets, observing that the classification of such medicated tablets under the CNS Act or Export Policy was debatable. The said order was subsequently uphel d by the Hon’ble Supreme Court.

Case of Muhammad Zafar Iqbal (FIR No. 25/2024), wherein the High Court granted bail upon noting divergent opinions between the Chemical Examiner and Chief Drug Inspector regarding whether the recovered Alprazolam tablets ( Xanax) were prohibited under the CNS Act or merely registered drugs under the Drugs Act.

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Crl. Misc. Application No. 20/2024, wherein bail was granted by the trial court in respect of the recovery of Valium (Diazepam), and such order was affirmed by a Div ision Bench of the High Court, again in reliance on the Mairaj Uddin case.

5. On the issue of nexus, it was argued that there exists no documentary or oral evidence linking the applicants with the ownership, exportation, financing, shipment, or clearin g of the consignment in question. The shipping documents do not reflect the names of the applicants in any capacity, whether as exporters, clearing agents, freight forwarders, or financiers. The applicants’ presence at the time of recovery is claimed to be stage-managed, subsequent to their unlawful apprehension from a restaurant, and their transportation to the port by ANF officials. It was also suggested that verification of CDRs and vehicle tracker data could potentially corroborate the applicants' versi on of events. Furthermore, the applicants are permanent residents of Karachi, with no previous criminal record, and pose no threat of absconding or tampering with the prosecution evidence.

6. In rebuttal to the applicants' contentions, the learned Special Prosecutor for the Anti -Narcotics Force (ANF) vehemently opposed the grant of bail. It was submitted that the substantial quantity of the recovered substances, irrespective of their pharmaceutical origin or lawful manufacture, demonstrates a manifest inte nt to smuggle the same for unlawful purposes, thereby attracting the penal provisions of the Control of Narcotic Substances Act, 1997. The learned Prosecutor contended that the covert manner of concealment, absence of proper export documentation, and unaut horized attempt to export these substances in bulk collectively indicate the existence of mens rea and bring the case within the ambit of illicit trafficking under the CNS Act. The learned Prosecutor argued that even if the recovered substances are otherwi se classified as "drugs" under the Drugs Act, 1976, their misuse in contravention of regulatory frameworks, specifically, without requisite DRAP approval and for the purpose of illegal export, transforms them into "controlled substances" or "psychotropic s ubstances" for the purposes of the CNS Act. It was emphasized that the Act is a special law with overriding effect in cases involving trafficking, and therefore, the argument that jurisdiction lies exclusively under the Drugs Act is misconceived. The Prose cutor relied upon the broad and inclusive

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definitions contained in Sections 2(k), 2(s), and 2(za) of the CNS Act to argue that the recovered items fall squarely within the scope of “psychotropic substances” and “controlled substances.”

7. With respect to the alleged procedural violations, including the delay in furnishing the chemical report and its purported lack of analytical specificity, the learned Prosecutor argued that such objections are technical in nature and do not undermine the legality of the r ecovery or the prima facie case established thereby. It was further submitted that such deficiencies, if any, pertain to evidentiary appreciation at the trial stage and do not suffice to displace the presumption under Section 29 of the CNS Act at the bail stage. The Prosecutor further maintained that the applicants’ involvement is adequately demonstrated through their arrest at the scene, their identification by co -accused, and the circumstantial evidence of their presence during the attempted shipment, all of which is sufficient for denying bail in light of the gravity and international dimension of the offense.

8. Notwithstanding the State’s assertions, after carefully considering the arguments advanced by the learned counsel for the applicants and the material placed on record, it appears that a case of further inquiry within the meaning of Section 497(2) Cr.P.C. has been made out. The central issue revolves around the classification of the seized items, GABICA (Pregabalin), TRAMAL (Tramadol Hydrochloride ), and RIVOTRIL (Clonazepam), which are admittedly manufactured by licensed pharmaceutical entities and registered under the Drugs Act, 1976. While clonazepam may be listed as a psychotropic substance under the CNS Act, the learned counsel has cogently arg ued that the tablets in question may constitute a distinct compound not identically matching the formula listed in the Schedule. This distinction, if substantiated, may exclude such formulations from the rigor of the CNS Act.

9. The contention advanced by the learned counsel that Pregabalin and Tramadol do not fall within the ambit of "psychotropic substances" as defined under the Control of Narcotic Substances Act, 1997 (“CNSA”) is not only plausible but finds substantial reinforcement in binding and persuasive judicial precedents. The consistent jurisprudential thread emerging from Crl. Bail Application No. 1989/2021 (Mairajuddin &

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Others), Muhammad Zafar Iqbal v. The State (FIR No. 25/2024), and Crl. Misc. Application No. 20/2024, supports the principle that where the classification of seized substances, despite their pharmaceutical legitimacy, is legally ambiguous under parallel statutory regimes, notably the Drugs Act, 1976 and the CNSA, 1997, the case must be treated as one of further inquiry under Sec tion 497(2) Cr.P.C. The Supreme Court’s dismissal of the State’s plea to cancel bail in Mairajuddin adds authoritative endorsement to this doctrine. These precedents affirm that the mere presence of controlled pharmaceutical substances, if lawfully manufactured and registered, does not per se attract the rigor of CNSA unless the legal threshold of classification as “psychotropic” or “narcotic” is clearly met, which in the instant case, remains unsettled and unresolved.

10. Furthermore, the impugned bail re jection order dated 28.04.2025, passed by the learned Special Judge (CNS -II), Karachi, suffers from fundamental legal infirmity and non -application of judicial mind. A perusal of the said order reveals that it is devoid of any analytical reasoning and fails to engage with the substantive legal and factual issues raised by the applicants. Crucial matters such as (i) the pharmacological identity and statutory classification of the recovered drugs, (ii) their registration under the Drugs Act, 1976, (iii) the a bsence of a direct evidentiary link between the applicants and the alleged contraband, and (iv) the relevance and binding nature of superior court precedent, have been wholly overlooked. The learned Judge also appears to have misapprehended the legal impli cations of the CNSA’s saving clauses vis - à-vis overlapping legislation, resulting in a flawed jurisdictional approach. Such dereliction contravenes the mandatory requirement under Section 24-A of the General Clauses Act, 1897, which obliges public authorit ies, including judicial officers, to furnish reasons for orders that affect civil liberties. It is well -settled law, reiterated by the superior judiciary in multiple pronouncements that an unreasoned judicial order constitutes a jurisdictional error, and s uch orders are legally untenable and liable to be set aside.

11. An additional substantive deficiency emerges from the chemical analysis report itself, which forms the evidentiary backbone of the prosecution’s case. The report was furnished on 14.04.2025, exceeding the

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30-day limit prescribed under Rule 5 of the CNS (Chemical Analysis) Rules, 2001, without accompanying explanation or justification, thereby violating the mandatory time frame. More critically, the report omits essential analytical particular s, including: (i) the pharmacological classification of the substances; (ii) the quantitative concentration or percentage purity of the alleged psychotropic constituents; and (iii) the precise chemical formulae enabling statutory classification under the CNSA Schedules. The report merely states the names of the detected substances without identifying the analytical protocols applied (e.g., GC - MS, HPLC) or any scientific method recognized under UNODC, USP, or WHO standards. This failure to adhere to Rule 6 o f the CNSA Rules, which explicitly requires full protocols of the tests applied, renders the report not only procedurally defective but also scientifically inconclusive, thereby eroding its admissibility and probative force. Compounding this is the prosecu tion’s failure to place on record any statutory notification confirming the status of the signatory as a duly appointed Chemical Examiner under the relevant law, which further undermines the report’s legal credibility. In totality, these deficiencies criti cally impair the prosecution's ability to establish a prima facie case.

12. It is equally significant that no direct documentary or forensic evidence has been produced linking the applicants to the ownership, financing, forwarding, or exportation of the a lleged consignment. The applicants' names do not appear in any bill of lading, commercial invoice, shipping documents, or freight forwarding agreements. Their alleged involvement appears to rest solely on their physical presence at the port premises, which, according to their uncontroverted version, resulted from being lured there by co -accused Nisar Ahmed under false pretenses. This version is not inherently improbable and gains strength from the prosecution's failure to retrieve and analyze the applicants ’ CDRs and vehicle tracking logs, which could have objectively verified their movements and intentions. The lack of investigative effort in this regard constitutes a glaring omission, and the prosecution has not provided any reasonable explanation for the same. In the absence of independent corroboration, and given the complete lack of any incriminating recovery from the applicants themselves, their alleged nexus with the consignment remains speculative and tenuous at best. This factual vacuum, viewed in conjunction with the substantive legal issues surrounding classification

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and admissibility of evidence, unequivocally leads to the conclusion that the case against the applicants warrants further judicial scrutiny and investigation, and their continued incar ceration is not justified at the bail stage.

13. In light of the foregoing discussion, and for the facilitation of judicial scrutiny as well as for the benefit of all concerned stakeholders, this Court now turns to critically examine the chemical analysis report dated 14.04.2025, which constitutes a pivo tal component of the prosecution’s evidentiary foundation. Notwithstanding its declarative conclusion regarding the presence of Clonazepam, Pregabalin, and Tramadol, the report suffers from multiple procedural and substantive infirmities that cumulatively undermine its evidentiary weight and legal efficacy. Firstly, the report was issued 33 days after receipt of the samples on 11.03.2025, in blatant violation of Rule 5 of the Control of Narcotic Substances (Chemical Analysis) Rules, 2001, which mandates tha t the chemical examiner’s opinion must be rendered within 15 days, extendable only to 30 days with cogent and recorded justification, a requirement wholly unfulfilled in the present instance. No explanation for the delay is provided, thus rendering the rep ort procedurally irregular ab initio. More critically, the report is conspicuously silent on fundamental scientific particulars essential to establish the nature of the substances in conformity with the statutory framework under the CNSA. It fails to discl ose: (i) the chemical structure or molecular formula of the substances; (ii) the quantitative composition or percentage purity of the active pharmacological ingredients; (iii) the identity of the testing methods used, such as Gas Chromatography -Mass Spectr ometry (GC -MS), High - Performance Liquid Chromatography (HPLC), or Infrared Spectroscopy (FTIR); and (iv) any reference to scheduled entries under the Schedules appended to Section 2(za) of the CNSA, 1997. The report instead offers a bald conclusion that th e substances are “psychotropic in nature,” unaccompanied by either scientific reasoning or legal correlation with the CNSA Schedules. Significantly, while the report alludes to the "tests applied," it entirely omits the protocols or standard operating proc edures (SOPs) governing those tests. This omission is not a trivial oversight but a foundational defect, as the reliability, reproducibility, and admissibility of any scientific analysis depends upon the clear identification of the protocol employed. Altho ugh the term "protocol" is not defined in the

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CNSA or its subsidiary Rules, its definition is well-settled in both scientific practice and judicial precedent. As enunciated by the Hon’ble Supreme Court in Imam Bakhsh v. The State (2018 SCMR 2039), a "proto col" refers to “a detailed and recognized plan for performing a scientific experiment, procedure, or test.” In the context of criminal trials, especially under special penal statutes, the absence of a known and validated protocol raises legitimate doubts a bout the integrity and reproducibility of the findings. The Supreme Court has consistently held that such deficiencies render the report legally vulnerable and insufficient to sustain a conviction or resist bail. Therefore, in order to meet the evidentiary thresholds prescribed under Rule 6 of the CNSA (Government Analyst) Rules, 2001, the report must set out: (i) the nature of the tests conducted; (ii) the specific protocols or methodologies followed; and (iii) the analytical conclusions drawn, failing whi ch, the report is not entitled to probative value.

14. Moreover, the nature of the substances allegedly recovered in this case warrants particular attention. The products, Rivotril (Clonazepam), Gabica (Pregabalin), and Tramal (Tramadol), are all commerci ally manufactured, lawfully marketed, and duly registered pharmaceutical preparations under the regulatory framework of the Drugs Act, 1976, and have not been shown to be counterfeit or unlawfully altered. The prosecution has not challenged their manufactu ring licenses or the legitimacy of their registration with the Drug Regulatory Authority of Pakistan (DRAP). In such circumstances, the burden lies upon the prosecution to demonstrate that these formulations fall squarely within the definition of “psychotr opic substances” as per the Schedules appended to the CNSA, which is not merely a factual assertion but a mixed question of law and scientific classification. Where such classification is not clearly demonstrated through valid expert testimony or statutory alignment, the application of the CNSA becomes jurisdictionally contentious. As recognized by the superior judiciary in Mairajuddin v. The State and later reaffirmed in Muhammad Zafar Iqbal’s case, this intersection between the Drugs Act and the CNSA creates a legal ambiguity, warranting the treatment of such matters under the doctrine of further inquiry under Section 497(2) Cr.P.C. The learned trial court's failure to assess this statutory interplay, and its misapplication of the

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penal provisions of the C NSA, amounts to a misreading of jurisdiction and reinforces the argument for bail.

15. It is trite law that the mere admissibility of a chemical report under Section 510 Cr.P.C. does not ipso facto elevate its evidentiary weight or preclude the Court from judicially assessing its reliability. The proviso to Section 510 Cr.P.C. expressly empowers the trial Court to summon and examine the Government Analyst for clarification, particularly where the report is ambiguous or deficient. However, this power is str ictly curative in scope, intended only for elucidation, not for enabling the prosecution to re-test the samples or supplement the existing report through fresh analysis. Any attempt to do so would constitute an impermissible filling of evidentiary lacunae, contrary to the established principles of criminal jurisprudence. This limitation has been explicitly affirmed in Khair -ul- Bashar v. The State (2019 SCMR 930), wherein the Hon’ble Supreme Court held that admissibility and evidentiary sufficiency are conce ptually distinct, and that the trial Court retains full discretion to assess the report’s probative value based on its compliance with the procedural safeguards embedded in the law. In the instant case, the glaring omissions in the report, both procedural (e.g., delay and lack of justification) and substantive (e.g., absence of protocols, scientific detailing, and statutory classification), render the report inconclusive, unreliable, and inadequate to sustain a prima facie case. Consequently, these legal an d evidentiary deficiencies further reinforce the entitlement of the applicants to bail under the doctrine of further inquiry.

16. In the present case, the Government Analyst’s report falls demonstrably short of satisfying the legal standard set forth in the binding precedents of Imam Bakhsh v. The State…

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