Legal Principle & Question Decided

Ruling Summary: This decision was rendered by the Sindh High Court, officially reported as Const. P. 625/2025 (SHC). In this matter between Const. P. 625/2025 (D.B.) Sindh High Court, Circuit at Larkana - Hafeezullah Lashari (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.

Full Judgment Text & Judicial Ruling

COURT: Sindh High Court CASE NO: Const. P. 625/2025 (D.B.) Sindh High Court, Circuit at Larkana CITATION: 2025 SHC LAR 1972 PARTIES: Hafeezullah Lashari (Petitioner) ORDER DATE: 16-JUL-25 BENCH: Hon'ble Mr. Justice Muhammad Saleem Jessar, Hon'ble Mr. Justice Riazat Ali Sahar(Author) A.F.R: Yes ------------------------------------------------------------ IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

C.P No. D-625 of 2025 [Hafeezullah Lashari v. Province of Sindh & Others]

Before: Mr. Justice Muhammad Saleem Jessar Mr. Justice Riazat Ali Sahar

Hafeezullah Lashari, the Petiotner: Through Mr. Abdul Rehman A. Bhutto, Advocate.

P.O. Sindh: Through Mr. Liaquat Ali Shar, Additional A.G.

The State: Through Mr. Ali Anwar Kandhro, Additional P.G a/w SIP Raza Muhammad, SHO/I.O, P.S, Kareem Bux and ASI Ghulam Sarwar Buriro.

Dates of Hearing: 10.07.2025 & 11.07.2025. Date of Short order: 11.07.2025. Date of Reasons: 16.07.2025

O R D E R

RIAZAT ALI SAHAR, J: - Personal liberty, a cornerstone of international human rights law and a fundamental attribute of human dignity, is enshrined as an inviolable constitutional guarantee under the Constitution of th e Islamic Republic of Pakistan, 1973. Anchored in universally recognized legal norms, this right is fortified by interrelated constitutional provisions: Article 9 affirms that “No person shall be deprived of life or liberty save in accordance with law” , thereby recognizing liberty not as a discretionary privilege but as a fundamental entitlement, revocable only through due process that is fair, just, and reasonable. Complementing this, Article 4 imposes a positive obligation upon the State to ensure that “every citizen shall enjoy the pro tection of law” , mandating the preservation of individual freedom against arbitrary or unlawful state action. It is within this

C.P No. D-625 of 2025

2 normative framework of constitutional and international safeguards that the present petition is situated, arising from an alleged grave violation of the petitioner’s fundamental rights. The petitioner was allegedly apprehended by officials of Police Station Kareem Bux, District Jacobabad, on 24-05-2025. In response, his mother, Mst. Sabo Lashari, filed Habeas Corpus Petition No. 78 of 2025 before the Sessions Judge, Jacobabad. The matter was referred to the Additional Sessions Judge, Thull (Annexure B -2, page -31 of Court file) , who ordered an unannounced inspection to verify the detention. The designated Raid Commissioner, the Civil Judge and Judicial Magistrate-II, Jacobabad, inspected both Police Post Chook Lashari and Police Station C-Section (now A-Section), Thull, but the petitioner was not found in custody. The S.H.O. also submitted a report confirming the detainee’s absence, leading to the disposal of the petition on 30 -05-2025. Subsequently, an FIR was registered against the petitioner under Crime No.11 of 2025, invoking Sections 9(i) and 3(c) of the Sindh Control of Narcotic Substances Act, 2024. Dissatisfied with the proceedings, the petitioner’s mother lodged a complaint with the S.S.P. Jacobabad and filed another Habeas Corpus Petition No. 84 of 2025 on 05 -06-2025 (Annexure-E/1, page-43 of the Court file), prompting a further raid and a report that confirmed the petitioner’s arrest in connection with the alleged recovery of 1,950 grams of charas. 2. It is further stated that the detainee was produced before the Court of Sessions, Jacobabad, on 31 -05-2025 for physical remand; however, the Sessions Judge declined jurisdiction, citing the absence of notified Tribunals under the Sindh Control of Narcotic Substances Act, 2024. The Raid Commissioner’s report, confirming the petitioner’s custody in the narcotics case, resulted in the disposal of the second habeas corpus petition on 10 -06-2025 with a direction for the police to proceed in accordance with law. Thus, the petitioner prayed as under: a) To declare that petitioner is detained with Police in improper without any judicial order from 30.05.2025 
till to date which is illegal, null and void

b) To declare that the petitioner is without any remand/ trial / challan is illegal, hence he is liable to be released on P.R Bond or Special Order passed by Hon'ble Court under section 63 Cr.P.C.

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3

c) To declare that the petitioner is entitled for grant of bail as a juvenile aged about 15/16 years as shown in School Certificate.

d) To award cost of the petition to the Petitioner. e) To grant any other relief deemed just and proper by this Honourable Court in the circumstances of this case. 3. Learned counsel for the petitioner vehemently contends that the petitioner, a minor aged about 15/16 years, is innocent and has been falsely implicated in instant case solely due to the refusal of his parents to meet the unlawful demands of the police officials. It is submitted that on 24-05-2025, the petitioner was abducted by the then S.H.O. of Police Station C -Section (now A -Section), Mashooque Ali Jakhrani, along with two other police personnel, and was kept in illegal confinement at different polic e posts. The petitioner’s mother, upon learning of his unlawful detention, approached Sessions Judge, Jacobabad, by filing applications under Section 491 Cr.P.C., bearing Habeas Corpus Petition Nos.78 and 84 of 2025, which were disposed of without any judicial remand being granted. Learned counsel argues that the petitioner was subsequently shown arrested under Sections 9(i) and 3(c) of the Sindh Control of Narcotic Substances Act, 2024, with a concocted recovery of 1,950 grams of charas and Rs. 300, while the police conveniently failed to specify from which pocket alleged currency notes were recovered. Moreover, no independent mashirs were cited during alleged recovery, despite the place of occurrence being a busy area, which constitutes a clear violati on of Section 103 Cr.P.C. It is further argued that the FIR is a fabrication aimed at coercing the petitioner’s family into paying unlawful gratification, as the police had earlier demanded Rs. 200,000 and later Rs. 100,000 for his release. Learned counsel points out that the prosecution witnesses are all subordinates of the complainant, making them inherently biased and interested in securing a conviction. The petitioner’s continued detention is entirely without lawful authority, as no written order of rem and has been passed by any competent court, and the S.H.O. has merely kept him on so -called “rahdari remand ”. Emphasizing the petitioner’s youth, clean antecedents, and the absence of any reasonable grounds connecting him with alleged offence, learned counsel submits that the petitioner is entitled to be

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4 released on bail or personal recognizance bond under Section 63 Cr.P.C., particularly as the prosecution has failed to establish even a prima facie case against him. 4. Pursuant to the issuance of notices to respondents through this Court’s order dated 03.07.2025, the matter was taken up for hearing on 10.07.2025. On said date, the respondents, who are police officials, appeared and submitted that they had presented the petitioner before the competent Judicial Magistrate seeking remand. However, Judicial Magistrate declined to entertain the remand application on the premise that instant FIR had been registered under the provisions of the Sindh Control of Narcotic Substances Act, 2024, which, as per law, falls within exclusive jurisdiction of the Special Tribunal. Consequently, the respondents, in order to adhere to the procedural requirements, produced the petitioner before the District and Sessions Judge, Jacobabad. Nevertheless, the District and Sessions Judge also refused to entertain the remand on similar grounds as those taken by the Judicial Magistrate. 5. In view of stance taken by the respondents and apparent ambiguity regarding exercise of jurisdiction, this Court, upon hearing the submissions, deemed it appropriate to call for a detailed report from both Judicial officers i.e. District and Sessions Judge, Jacobabad, and concerned Judicial Magistrate, requiring them to explain as to why the remand was not entertained and why they refrained from exercising their powers as envisaged under Sections 61 and 63 of the Code of Criminal Procedure, 1898, in the interregnum. 6. Subsequently, upon consideration of the matter and in the interest of justice, this Court, vide short order dated 11.07.2025, granted bail to the petitioner. 7. The District and Sessions Judge, Jacobabad, submitted that “during the summer vacation from 07 -07-2025 to 21.07.2025, the orders dated 10 -07-2025 and 11 -07-2025 had been communicated, though no evasive reply was furnished by him as alleged, and a copy of the petition was not received ”. It was clarified that HCP No.

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5 78/2025 filed by Mst. Sabo Lashari had been disposed of on 30-05-2025 after a raid confirmed that her son, Hafeezullah Lashari (a minor boy), was not in illegal custody. A second HCP No. 84/2025 confirmed his arrest in Crime No. 11/2025 involving 1,950 grams of charas under the Sindh Control of Narcotic Substances Act, 2024, and as his detention was lawful, the Habeas Corpus P etition was disposed of on 05-06-2025. The SHO claimed his remand application under Section 167 Cr.P.C. had been verbally refused, leaving the accused on “rahdari”, but no written order existed for revisional jurisdiction under Section 435 Cr.P.C. It was further stated that all Sessions Courts had been refrained from entertaining narcotics matters due to the Sindh High Court’s directives (CP No. D -937/2025 and Cr. B.A. No. 1004/2025), and the actions were in strict compliance with the superior courts’ orders. 8. The Civil Judge and Judicial Magistrate -II, Jacobabad in compliance with directives of the Court, submitted detailed comments regarding the proceedings of HCP No. 78/2025 and HCP No. 84/2025 (supra). It was clarified that there was no prior knowledge of HCP No. 78/2025, alleged raid, or the registration of FIR No.11/2025 under the Sindh Control of Narcotic Substance Act, 2024, as no such remand application or FIR was presented before the Consumer Protection Court/J.M., Jacobabad. A raid was conducted on 05.06.2025 at PS Kareem Bux under the orders of the I/C Sessions Judge, during which the detainee was found confined in connection with FIR No. 11/2025 for recovery of 1950 grams of charas. The SHO’s claim that remand was sought and refused by the Magistrate has categorically denied as false and baseless. Subsequent proceedings and orders of the Sessions Court, Jacobabad, were not communicated until later, when the police’s misstatements came to light and were promptly refuted. The arguments of the petitio ner’s counsel, allegedly favouring the police, was also rejected as speculative and without substance. While acknowledging the Court’s observations regarding legal obligations under Section 63 Cr.P.C., it was reiterated that no remand application was received; the detainee was shown arrested in a substantive

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6 offence and was directed to be produced before the Sessions Court on 10.06.2025. 9. In the interim, the respondents submitted the requisite police papers for the Court’s consideration. 10. We have heard learned counsel for the Petitioner and the learned Deputy Prosecutor General, and have given our anxious consideration to their submissions. We have also meticulously examined the material made available before us on the record. 11. The promulgation of the Sindh Control of Narcotic Substances Act, 2024 (“SCNS Act 2024”), which repealed the federal Control of Narcotic Substances Act, 1997 in Sindh, has unfortunately engendered significant confusion in the administration of justice. Notably, the SCNS Act 2024 omits any provision for bail or clear mechanism for remand , leaving a legislative void that has perplexed courts and law enforcement alike. In the petitioner’s case, this void manifested in a troubling manner: the Judicial Magistrate and the Sessions Judge each declined to entertain the remand of the accused, citing want of jurisdiction under the new law . As a result, the police kept the petitioner in custody on a so - called “rahdari” (transit) remand for two days without any written remand order from a competent court. Such a scenario has adversely impacted the fundamental rights of citizens, exposing them to protracted detention with no forum readily available for relief, and has put law enforcement in the untenable position of holding accused persons without judicial sanction. This state of affairs patently offends Article 9 of the Constitution (no person shall be deprived of liberty save in accordance with law) and Article 10 (safeguards as to arrest and detention, including production before a magistrate within 24 hours), as well as the right to due process and fair trial guaranteed by Article 10-A. The judiciary cannot permit this confusion to persist, as it strikes at the very heart of the rule of law and fundamental liberties.

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7 12. It is instructive to contrast the provincial SCNS Act , 2024 with the federal Control of Narcotic Substances Act, 1997 (“CNS Act 1997”), which it replaced in Sindh. The CNS Act 1997 (as amended Act, 2022) provided a comprehensive framework for narcotics offenses, including detailed provisions on special courts, bail, and procedure. Under the federal law, Special Courts were to be established by the government (Sections 45 and 46), and jurisdiction of ordinary courts was accordingly adjusted. Crucially, the CNS Act 1997 (as amended Act, 2022) contained Section 51, which restricted bail in narcotics cases – particularly for larger quantities – but did not entirely oust the concept of bail. For example, an offense under Section 9(c) of the federal Act (possession/trafficking above a certain threshold, e.g. Ten Kilogram of narcotics) carried severe punishments (up to life imprisonment) and was treated as non -bailable in ordinary courts, yet even then the law permitted bail in rare circumstances through the Special Court or High Court if warranted. In essence, the federal scheme balanced the gravity of narcotics offenses with the accused’s rights by tailoring bail provisions to the severity of the charge (e.g. smaller quantities under Section 9(a) or 9(b) were relatively less stringently treated, and the punishments provided were lesser). By stark contrast, the SCNS Act 2024 deleted the application of Sections 496–497 of the Cr.P.C. altogether for all offenses under the Act. Section 35 of the Sindh Act explicitly states that no bail shall be granted for offenses under it, thus rendering every offense non - bailable regardless of quantity or circumstances. This blanket prohibition on bail is unprecedented, as even under the federal law some discretion existed for lesser offenses. Moreover, while the SCNS Act 2024 largely copied the CNS Act 1997’s definitions and penalties, it failed to incorporate any substitute procedure for remand or interim custody. The new provincial law’s silence on who may authorize detention beyond 24 hours left a procedural chasm – one that di rectly implicates constitutional principles. Article 10 of the Constitution requires that an arrested person be produced before a magistrate within 24 hours, and Article 9 forbids unlawful detention; yet the SCNS Act 2024, by not naming any court for initial remand, created a scenario where these guarantees could be easily breached.

C.P No. D-625 of 2025

8 Likewise, the absolute bar on bail, without exception or oversight, raises serious concerns under Article 10-A (the right to a fair trial), as it deprives accused persons of a fundamental procedural protection. Article 14 of the Constitution, protecting the dignity of man, is also at stake when individuals are subjected to indignity and hardship of jail with no legal avenue to seek release. In short, the SCNS Act 2024’s gaps – particularly the lack of bail and remand provisions – are in tension with the fair trial and liberty guarantees that form the cornerstone of our Constitution. 13. When the legislature fails to provide clear procedures, especially those affecting liberty, the superior judiciary must step into the breach to uphold fundamental rights. This Court cannot allow an accused to remain in legal limbo due to a statutory omission. As a first step, it falls upon the High Court to interpret the law in a manner that averts chaos and safeguards rights. The SCNS Act 2024 itself, in creating special courts, anticipated a transition: Section 29 read with Section 30 provides for the establishment of Special Courts with exclusive jurisdiction to try offenses under the Act. The provincial government is empowered to set up as many Special Courts as necessary and appoint Special Judges. Importantly, the law recognizes the interim period; it contains a proviso that “until the Special Courts are established under this section, the existing competent court (Court of District & Sessions Judge ) as provided by section 2(qq) of the SCNS Act, 2024, shall continue to perform its functions for the speedy disposal of narcotics cases.” ’, which is reduced as under: “2 Definition (qq) “ competent court ” means existing Court of District & Sessions Judge that has the legal authority to hear and decide a case under this Act;” In other words, the law never intended a jurisdictional vacuum – it designates the regular courts as “competent courts” to act in the meantime. The term “competent court” is defined in Section 2(qq) read with Sections 29 & 30(2)(ii) of SCNS Act, 2024 as essentially the courts already exercising jurisdiction over such offenses. Sections 29 & 30 of SCNS Act,2024 are reproduced as under:

C.P No. D-625 of 2025

9 “29. Jurisdiction to try offences. - The Special Court established under this Act shall have the exclusive jurisdiction to try an offence cognizable under this Act.

30. Establishment of special court . – (1) Government shall, by notification in the official Gazette, establish as many Special Courts as it considers necessary and appoint a Judge for each of such Courts and where it establishes more than one Special Courts or competent court, it shall specify in the notification the place of sitting of each Special Courts and the territorial limits within which it shall exercise jurisdiction under this Act.

(2) There shall be Special Courts to try offences under this Act, namely:-

(i) Special Courts having the power to try all offences; and (ii) Competent courts having the power to try offences. Therefore, the Courts of District & Sessions Judges in Sindh, being the courts of original criminal jurisdiction in serious offenses, are by law the competent courts to deal with narcotics cases until special courts are in place . Regrettably, in practice these courts were uncertain or hesitant – partly due to administrative directives and misgivings after the new law – and thus declined jurisdiction. Such hesitation, though perhaps borne of caution, cannot override the clear proviso of the statute . It is incumbent on the judiciary to dispel this confusion: until Special Courts under the SCNS Act 2024 are notified and functional, the jurisdiction to entertain and try all cases under the Act lies with the ordinary courts ( Courts of District & Sessions Judges ), save for the matter of bail until law provides such re medy. Indeed, in present petition, this Court had to intervene by calling reports from the Sessions Judge and Magistrate to clarify their authority. We reiterate that no accused can be left un -produced or un-remanded on the ground that “no Special Tribunal exists.” The magistracy and Sessions courts must exercise their inherent powers under the Code of Criminal Procedure (as “competent courts”) to take cognizance, grant remands, and process challans under the SCNS Act, or else the constitutional protections of Articles 9 and 10 would be rendered nugatory. The superior judiciary’s role is also to urge the executive to expedite filling this void: it has not escaped this Court’s notice that

C.P No. D-625 of 2025

10 despite the law’s enactment in early 2024, the Government of Sindh has yet to establish the Special Courts and appoint Judges. Such inaction is unconscionable and was expressly frowned upon in CP No. D-937 of 2025 (discussed below). We echo that concern and stress that the constitutional courts stand as the vanguard to ensure that legislative inaction or ambiguity does not translate into injustice on the ground. 14. In the unique circumstances created by the SCNS Act 2024, the question arose: who can grant bail , if at all? The answer, as crystallized in recent judicial precedents, is that only the High Court in its constitutional jurisdiction can currently entertain bail pleas under the SCNS Act . CP No. D-725 of 2025 (Peer Bux v. The State) is illustrative. In that case – involving a young actor charged with a small quantity of narcotics – a Division Bench of this Court (Circuit Court Hyderabad) invoked its extraordinary jurisdiction under Article 199 of the Constitution to grant bail, precisely because the special trial courts had not been established and the statute provided no other forum. The Bench observed that it would be a travesty to keep the accused incarcerated for an indefinite period simply due to Government’s failure to operationalize the law . It was noted that Section 35 of the SCNS Act, 2024 had effectively disabled the trial courts from granting bail, by removing applicability of Sections 496–497 Cr.P.C. (the usual provisions empowering Sessions Courts to grant bail in bailable and non-bailable offenses). In absence of special courts and with the Sessions Judge’s hands tied by Section 35, the High Court’s constitutional bench stepped in as the only viable avenue. The Peer Bux case (supra) thus set the precedent that constitutional petitions for bail are maintainable and that relief can be gra nted by the High Court to prevent violations of fundamental rights. Consistently, in Criminal Bail Application No. 1004 of 2025 , this Court (in its regular criminal jurisdiction) opined that, given the bar of Section 35 of the Sindh Act, the proper course for an accused seeking bail is to file a writ petition under Article 199 before a Division Bench. In fact, it was explicitly argued by the State in that case that the “only

C.P No. D-625 of 2025

11 remedy” available to an accused under the SCNS Act is to approach the High Court’s constitutional jurisdiction. The Additional Sessions Judge hearing Cr. B.A. 1004/2025 accordingly dismissed the post - arrest bail application for want of jurisdiction , observing that the trial court could not entertain it in view of Section 35 and the overriding effect of the Sindh Act. He referred the matter to the High Court, reinforcing the understanding that bail under the Sindh narcotics law lies outside the competence of any court inferior to the High Court. As a result of these developments, all Sessions Judges in Sindh have (rightly) ceased entertaining bail pleas in the cases of SCNS Act, 2024 , as noted in the Sessions Judge’s report in present matter. We affirm that position: until the law is amended or the Special Courts come into existence , petitions under Article 199 of the Constitution before the High Court are the only appropriate procedure to seek bail for offenses under the SCNS Act , 2024 under the guidance provided by Khan Asfandyar Wali case reported in PLD 2001 SC 607 . This unusual arrangement, compelled by necessity, is aimed at preventing the denial of liberty without recourse. It is not a sustainable permanent solution – indeed, it burdens the High Court and was never the legislature’s intent – but it shall continue pro tempore to ensure that accused persons are not left remediless. 15. It is pertinent to recall the recent admonition by the Hon’ble Supreme Court of Pakistan regarding compliance with judicial orders, which by analogy applies to the issue of remand in our case. In Civil Petitions No. 2915-L, 2916 -L & 2917 -L of 2015 (decided in 2025) , the Supreme Court addressed a scenario where a lower functionary had delayed implementing the High Court’s remand orders in a land matter. The apex Court expressed its disapproval in unequivocal terms, observing that there is a “disturbing practice” of treating remand directions…

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