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Official Citation: 2025 SHC 1049
Court / Jurisdiction: Sindh High Court
Petitioner: Const. P. 3154/2025 (D.B.) Sindh High Court, Karachi - Naimatullah Khan (Petitioner)
Ruling Summary: This decision was rendered by the Sindh High Court, officially reported as 2025 SHC 1049. In this matter between Const. P. 3154/2025 (D.B.) Sindh High Court, Karachi - Naimatullah Khan (Petitioner) 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.
COURT: Sindh High Court CASE NO: Const. P. 3154/2025 (D.B.) Sindh High Court, Karachi CITATION: 2026 SHC KHI 1049 PARTIES: Naimatullah Khan (Petitioner) ORDER DATE: 07-MAY-26 BENCH: Hon'ble Mr. Justice Muhammad Saleem Jessar, Hon'ble Mr. Justice Nisar Ahmed Bhanbhro(Author) A.F.R: Yes ------------------------------------------------------------ IN THE HIGH COURT OF SINDH, KARACHI Const. Petition No. D-3154 of 2025 [Naimatullah Khan v. SHO ANF Clifton and 2 others] Const. Petition No. D-6001 of 2024 [Akbar Ali and another v. Federation of Pakistan and another]
__________________________________________________________________ Date Order with signature(s) of Judge(s) Before Mr. Justice Muhammad Saleem Jessar Mr. Justice Nisar Ahmed Bhanbhro
CP No.D-3154 of 2025 Petitioner Through Mr. Shoukat Hayat, Advocate CP No D 6001/2024 Petitioner Through Mr. Umar Farooq, Advocate Respondents: Ms. Shazia Hanjrah, Deputy Attorney General For Pakistan Mr. Habib Ahmed, Special Prosecutor, ANF Mr. Hakim Ali Shaikh, Additional A. General
Dates of hearing: 30.12.2025, 16.01.2026, 27.01.2026, 10.02.2026, 24.02.2026, 21.04.2026 & 28.04.2026 Date of Order: 07.05.2026
O R D E R
Nisar Ahmed Bhanbhro, J. As common questions of law and fact are involved in both petitions, the same are being disposed of through this single order.
2. The petitioners in both petitions have sought a declaration that the Notification No. S.R.O. No.1350(I)/2021 dated 15.10.2021 (“ impugned notification”), issued by the Ministry of Narcotics Control, making amendments in the schedule to Control of Narcotics Substances Act, 1997 (CNS Act) by declaring Ketamine and its salts as Contraband Substance, is ultra vires to the Articles 90 and 91 of the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution) thus of no legal effect and
liable to be set aside. Petitioners further prayed that the FIRs registered and consequent proceedings initiated against them in wake of impugned notification under the provisions of CNS Act were also without any legal justification thus may be quashed.
3. It will be pertinent to mention here that through impugned notification dated 15.10.2021 the Federal Government was pleased to declare “Ketamine and its Salts” as Psychotropic substances for the purposes of the CNS, Act and placed it at serial No 39 - A in schedule. The sell, manufacture, purchase and transportation of Ketamine and its salts thus fell within the definition of an offence contained under section 6 and was punishable under section 9 of the CNS, Act 1997.
3. Learned counsel for the petitioner in C.P. No. D -3154 of 2025 contended that the petitioner was taken into custody on 31.05.2022 on the allegation of recovery of a psychotropic substance, namely Ketamine, which was declared as such through Notification dated 15.10.2021 issued by the Ministry of Narcotics Control. He contended that the said notification was issued without lawful authority, in violation of Articles 90 and 91 of the Constitution , as well as the Rules of Business, 1973, and, as such, the petiti oner has been illegally subjected to a prolonged and protracted criminal trial. Learned Counsel further contended that under Section 2(za) of the Control of Narcotic Substances Act, 1997, any amendment in the Schedule specifying psychotropic substances can only be made by the Federal Government through notification in the official Gazette. In the present case, howeve r, Gazette Notification No S.R.O. No.1350(I)/2021 dated 15.10.2021 was issued by the Ministry of Narcotics Control through a Section Officer, w ithout approval of the Federal Government or the Federal Cabinet, as mandated under Articles 90 and 91 of the Constitution, rendering the same ultra vires the Constitution. It is further argued that on the basis of the impugned notification, the petitioner is facing a prolonged and protracted trial, thereby seriously prejudicing his fundamental rights guaranteed under Articles 4, 10, 10 -A and 25 of the Constitution. He further contended that amendment was approved by cabinet through circulation summary but said summary has not been placed on record. There was violation of Rules 16, 17, 18 & 19 of the Rules of Business 1973 more particular when the said summary was not the part of the periodical reports of the said year. He prayed to allow the petition.
5. Learned counsel for the Petitioner in CPD 6001 of 2024 contended that the schedule to CNS Act was amended through section 74 - A which was introduced in year 2022 and impugned notification was issued in year 2021. He contended that schedule cannot be amended through S.R.O as was done in the present case. He contended that since the cabinet decision was not part of periodical records, therefore notification was null and void in terms of Rule 25 of the Rules of Business, 1973. He further argued that the impugned notification was illegal and issued without any lawful authority. He placed reliance upon the case of M/S Mustafa Impex & others Vs The Government of Pakistan through Secretary Finance, Isalmabad etc (PTCL 2017 CL 456= P L D 2016 Supreme Court 808 ) and Kazi Abdul Majid Vs. Province of Sindh through Secretary Excise & Taxation Government of Sindh, Karachi and another (PLD 1976 Karachi 600) and lastly prayed to allow the instant petition and quash the proceedings against the Petitioners.
6. Learned DAG and Special Public Prosecutor ANF controverting the submissions advanced on behalf of the petitioner s contended that the impugned Notification was issued strictly in accordance with law , and in exercise of the delegated authority , lawfully vested in the Federal Government under Section 2(za) of the C NS Act. It is submitted that the Ministry of Narcotics Control is competent to issue notifications on its behalf in terms of the Rules of Business, 1973. Learned counsel submit ted that the mere fact that the notification was issued through a Section Officer did not render it unlawful, as such issuance of any official notification is a matter of internal administrative procedure and did not negate the decision of the Federal Government taken at the competent level. It is argued that notifications are routinely authenticated and published through designated officers and such practice has consistently been upheld by superior Courts. It is further contended that Articles 90 and 91 of the Constitution related to the executive authority and internal functioning of the Federal Government and d id not require that each and every notification expressly reflect Cabinet approval on its face. In the absence of any material demonstrating lack of approval, the presumption of regularity attaches to official acts. It was f urther argue d that Ketamine is an internationally recognized Psychotropic Substance and its inclusion in the Schedule is consistent with Pakistan’s international obligations and the object and scheme of the C NS Act, which is a welfare and regulatory statute enacted to curb the menace
of narcotics and psychotropic drugs. It is also submitted that the petitioners’ arrest and prosecution are based on factual recovery and due process of law, and mere challenge to the notification cannot render the entire criminal proceedings void, particularly when the impugned notification remains operative and has not been declared unlawful by a Court of competent jurisdiction. Lastly, it is argued that no violation of fundamental rights has been made out, as the petitioner s were being proceeded against s trictly in accordance with law. The alleged delay in submission of cabinet summary cannot furnish a valid ground to declare the impugned notification ultra vires the Constitution and prayed to dismiss the petition.
7. Heard arguments, and perused the material made available before us on record.
8. Crux of the controversy involved in the instant petition is that the impugned notification dated 15 th October 2021, whereby Ketamine and its Salts were declared a psychotropic substance and placed at Entry No 39 - A of the Schedule of CNS, Act was issued without the approval of Federal Government. The impugned notification was issued in violation of Artic le 90 of the Constitution and Section 77 of the CNS Act, hence of no legal effect. The proceedings initiated against the Petitioners pursuant to the impugned notification dated 15.10.2021 through FIRs No 20 of 2022 and 05 of 2021 registered by ANF and Customs Authorities were bad under the law as the same offended the fundamental rights of the Petitioners guaranteed under articles 4, 10 and 10 - A of the Constitution, thus may be quashed.
9. From the analysis of the record, it transpired that Federal Government issued notification dated 15 th October 2021 by exercising the powers conferred under Article 90 of the Constitution and section 77 of the CNS, Act. Article 90 of the Constitution articulated that the executive authority of the Federation shall be exercised by the Federal Government in the name of President. The Federal Government shall consist of Prime Minster and Minsters. Article 90 of the Constitution confers the executive authority of the Federation in the Federal Government and by Article 97 it extends to the matters with respect to which Parliament has power to make laws . It will be conducive to reproduce Article 90 of the Constitution for the sake of convenience, which reads as under:
90. The Federal Government: —(1) Subject to the Constitution, the executive authority of the Federation shall be exercised in the name of the President by the Federal Government, consisting of the Prime Minister and the Federal Ministers, which shall act through the Prime Minister, who shall be the chief executive of the Federation. (2) In the performance of his functions under the Constitution, the Prime Minister may act either directly or through the Federal Ministers.
10. Article 142(b) of the Constitution empowers the legislature to enact criminal law and to make law for criminal procedure. Thus the proper legislature creates offenses , provides procedure for their investigation, trial etc. The executive power of the Federal Government extends to the matters with respect to which Parliament has power to make laws. The Constitution does not prescribe any particular prosecutorial regime and the executive power to prosecute depends entirely on the laws enacted by the legislature. It is well established that if the exercise of power to prosecute involves violation of th e Constitution or a statute, the courts will intervene . To make a case for interference, the petitioners were required to establis h that inclusion of Ketamine in list of contraband substances of Psychotropic substances violated any provision of the constitution or in any manner infringed petitioners’ fundamental rights.
11. The CNS, Act was promulgated by the parliament to prosecute the offenders involved in drug peddling. The parliament through section 77 of the CNS, Act conferred powers upon the Federal Government to declare any drugs as Psychotropic substance, within the definition of section 2(za) of CNS, Act. The possession, sell, transport, manufacture of a psychotropic substance falling within the definition of section 2(za) is declared an offence within the definition of section 6 and made punishable under section 9 of CNS, Act. In exercise of powers conferred under sections 2(za) and 77 of the CNS Act, the Federal Government vide notification dated 15 th October 2021 declared Ketamine and its salts as Psychotropic substance and amended the schedule by inserting entry No 39 -A. Since the date of issuance of notification sell, possession, transportation, manufacture, import and export of the Ketamine became a cognizable offence punishable under section 9 of the CNS, Act. Issuance of Gazette notification was a sufficien t knowledge for the
people of Pakistan. If any one was found involved in any of the activity contravening section 6 of the CNS, Act, he was liable to be prosecuted. For the ease of reference Notification dated 15.10.2021 is reproduced below: Statutory Notifications (S.R.O) Government of Pakistan MINISTRY OF NARCOTICS CONTROL Notification Islamabad, the 15 th October, 2021 S. R.O 1359(I)/2021 …. In exercise of the powers conferred by clause (za) of section2 of the Control of Narcotics Substances Act, 1997, (XXV of 1997), the Federal Government is pleased to declare that Ketamine and its salts shall be a psychotropic substance for the purposes of the said Act and it shall be placed at Serial No 39 - A in schedule of CNS, Act 1997. [No. F. 13 - 20/2014-CS] Sd/ SYED SAADAT ALI OKHARI Section Officer (Controlled substances)
12. From perusal of above referred notification, it is vivid and crystal clear that the said notification was issued pursuant to the approval of Federal Government. The contention of Learned Counsels for the Petitioners that notification is issued by a Section Officer without getting its approval from cabinet is without force, as word Federal Government appearing in the referred notification represents cabinet. The Fed eral Government per Article 90 of the Constitution consisted of Prime Minister and Ministers commonly referred as to Cabinet.
13. When confronted to above legal position learned Counsel for the Petitioners argued that “Ketamine” was a substance used for medical purpose, therefore, it cannot be placed under schedule of CNS, Act. The learned counsel for the petitioners mounted various arguments to discredit the impugned notification and emphatically made basis to an earlier notification dated 6 th April, 2020 issued by the Ministry of Narcotics Control whereby Ketamine was placed in the schedule of CNS, Act and subsequently the sa id notification was withdrawn. Counsel for the petitioners argued that the notification dated 6 th April 2020 was withdrawn for the reason that the Ketamine was not a contraband
substance and its use was limited for medical purposes. To proceed further it would be conducive to reproduce notification dated 6 th April 2020, which reads as follows: Statutory Notifications (S.R.O) Government of Pakistan MINISTRY OF NARCOTICS CONTROL Notification Islamabad, the 6 th April, 2020 T.R.O 446(I)/2020 dated. Secretary Ministry of Narcotics Control duly authorized under section2 (za) of the Control of Narcotics Substances, (CNS) Act 1997, ), is pleased to issue notification for inclusion of Ketamine Ketamine Hydrochloride Salt” along with its chemical formula as given below in the list of psychotropic substance given in schedule - III of CNS, Act 1997(No. XXV) of 1997. Chemical Name: 2-(2-Chlorophenyl) -2-(methylamino)cyclohoxanone hydrochloride; 2-(o-Chlorophenyl) -2-(methylamino)cyclohexanone hydrochloride; 2-(2-methylamino) -2-(chlorophenyl)cyclohexanone hydrochloride; 2-(2-Chlorophenyl) -2-(o-chlorophenyl)cyclohoxanone hydrochloride; Cyclohexanone,2 -(2-chlorphenyl) -2-(methylamino)hydrochloride; Cyclohexanone,2 -(o-chlorphenyl) -2-(methylamino)hydrochloride; [No. F. 13 - 20/2014-Policy - I] Sd/ SYED SAADAT ALI OKHARI Section Officer (Policy - I)
14. From bare reading of the above notification, it can be deduced that the same was issued by Secretary Ministry of Narcotics Control without sanction of Federal Government. The notification dated 6 th April 2020 was bad under the law and rightly withdrawn as the same was issued without sanction of the cabinet. The argument of the counsel for petitioners that notification was withdrawn as Ketamine was used for medical purposes had no force. Even if we accept the argument that the Ketamine is used for medical purposes for anaesthesia, it will never tantamount to accord permission to the Petitioners for an open trade or business of Ketamine.
15. Learned Counsel vehemently emphasized that the Cabinet had not approved the summary to include Ketamine in the schedule of CNS
Act, and if the summary has been approved, it was not floated in terms of Rules 16 to 20 of the Rules of Business 1973. It would be conducive to reproduce the decision of the cabinet dated 10.09.2021 approved through circulation, which reads as under: DECISION The cabinet considered the summary, dated 10 th September 2021 submitted by the Narcotics Control Division, which was circulated in terms of rule 17(1)(b) read with rule 19(1) of the Rules of Business, 1973 for ‘Scheduling of Psychotropic substances by Federal Government’ and approved the proposal at para 5 of the summary .
16. The contention of the Petitioners’ counsel that the summary was approved in violation of Rules of Business, 1973, though no specific occasion was demonstrated to believe that cabinet lacked powers to approve such summary. Merely, because the summary was no t the part of periodical records did not furnish any valid ground to declare such step of the Federal Government as null and void. Rule 16 provides for bringing the cases before the cabinet which include, proposals for legislation, official or non-official, including money bills; promulgation and revocation of Ordinances; etc. Rule 17 lays down Method of disposal of Cabinet cases, which may be through by discussion at a meeting of the Cabinet; or by circulation amongst Ministers; or by discussion at a meeting of a committee of the Cabinet, etc. Rule 18 regulates the Manner of submission of Cabinet cases, Rule 19 enunciates Procedure regarding circulation of Cabinet cases, Rule 20 regulates the procedure regarding Cabinet Meetings and Rule 25 speaks about per iodical reports and activities of divisions. It is vociferously, argued that decisions of cabinet was not part of the Year Book, therefore, impliedly no such decision was taken by the cabinet. It would be conducive to reproduce Rule 25 for the sake of reference: 25. Periodical reports of activities of Divisions. --(1) Omitted vide SRO 135(I)/98, dated 3rd March, 1998. (2) At the beginning of each financial year, each Division shall,for the information of the Cabinet and for general public, prepare and upload on its website as a permanent record a Year Book which shall contain--
(a) the details of its activities, achievements and progress during the preceding financial year giving only the information which can be used for reference purposes; (b) the programme of activities and targets set out for itself during the preceding financial year and the extent to which they have been realized; and (c) the relevant statistics properly tabulated. Note:- The Secretary of the Division shall ensure that only unclassified material is supplied for the Year Book so that the information contained therein may be available for the use of academics, scholars and other interested. (3) Secretary of each Division shall inform the Cabinet Secretary, within ninety days at the end of the financial year under report, about availability of the Year Book, who shall disseminate this information to all members of the Cabinet and all Divisions.
17. Rule 25 of the Rules of Business, 1973 was directory in nature, and laid down a procedure to maintain the periodical records of such unclassified information which might be useful for academics and research purposes. Therefore, if any decision was not part of the year book, it will not render cabinet decisions nullity.
18. Further more, the legislation has empowered the Federal Government to amend or vary the schedule of CNS, Act through section 74 - A which reads as under: 74A.Power to amend Schedules. __ The Federal Government may, by notification in the official Gazette, amend the Schedules so as to add any entry thereto, amend any entry therein or omit any entry there from if it is satisfied that it is necessary or expedient so to do on the basis of following, namely: (a) the information and evidence which has become available to it with respect to the nature and effects of and the abuse or the scope for abuse of any substance (natural or synthetic) or natural material or preparation of such substance or material; or (b) the modifications or provisions, if any, which have been made to or in any international convention with respect to such substance, natural material or any salt or preparation of such substances or material.
19. The above provision of law embodied in CNS, Act accorded powers to Federal Government to amend the schedule to the said Act so as to add any entry thereof, or omit any entry therefrom when satisfied on the basis of information and evidence that has become ava ilable with respect to the abuse of any substance (natural or synthetic) and any modification or provisions in compliance to international convention. Federal Government included Ketamine and its salt in the list of contraband substances and incorpo rated in the schedule of CNS, Act meaning thereby that since the date of amendment in the schedule unlawful trade or business of Ketamine became an offence punishable under section 9 of the CNS Act. Though this provision was inserted in year 2022, however, Federal Government was competent to alter or amend the schedule by exercising the powers available under section 2(za) and 77 of CNS, Act.
20. In the case of Mustafa Impex (supra) relied upon by Learned Counsel for Petitioners, it was held by Honorable Supreme Court of Pakistan that Rules of Business, 1973 were binding on the Government and a failure to follow them would lead to an order lacking any legal validity. Para 84 & 85 of the judgment being relevant reads as under:
84. We may now summarize our conclusions:-- (i) The Rules of Business, 1973 are binding on the Government and a failure to follow them would lead to an order lacking any legal validity. (ii) The Federal Government is the collective entity described as the Cabinet constituting the Prime Minister and Federal Ministers. (iii) Neither a Secretary, nor a Minister and nor the Prime Minister are the Federal Government and the exercise, or purported exercise, of a statutory power exercisable by the Federal Government by any of them, especially, in relation to fiscal matters, is constitutionally invalid and a nullity in the eyes of the law. Similarly budgetary expenditure, or discretionary governmental expenditure can only be authorized by the Federal Government i.e. the Cabinet, and not the Prime Minister on his own. (iv) Any Act, or statutory instrument (e.g. the Telecommunication (Re-Organisation) Act, 1996) purporting to describe any entity or
organization other than the Cabinet as the Federal Government is ultra vires and a nullity. (v) The ordinance making power can only be exercised after a prior consideration by the Cabinet. An ordinance issued without the prior approval of the Cabinet is not valid. Similarly, no bill can be moved in Parliament on behalf of the Federal Government without having been approved in advance by the Cabinet. The Cabinet has to be given a reasonable opportunity to consider, deliberate on and take decisions in relation to all proposed legislation, including the Finance Bill or Ordinance or Act. Actions by the Prime Minister on his own, in this regard, are not valid and are declared ultra vires. (vi) Rule 16(2) which apparently enables the Prime Minister to bypass the Cabinet is ultra vires and is so declared. (vii) Fiscal notifications enhancing the levy of tax issued by the Secretary, Revenue Division, or the Minister, are ultra vires. (it is clarified, in passing, that this court has in the past consistently held that a greater latitude is allowed in relation to beneficial notifications and that principle still applies). (viii) In consequence of the above findings the impugned notifications are declared ultra vires and are struck down.
Prior to concluding this judgment we would like to express our appreciation for the valuable assistance provided by the learned counsel who have appeared in this matter. We are grateful to each one of them.
85. In view of the above by accepting these appeals and while setting aside the impugned judgment(s), all the writ petitions filed by the appellants are allowed.
21. The discussion made herein above leads to an irresistible conclusion, that amendment in schedule to CNS Act was done strictly following the Rules of Business, through a circulation summary, as prescribed under Rule 17 & 19 of the Rules of Business, 1973. 22. Adverting to…
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