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Official Citation: 2025 LHC 4744
Court / Jurisdiction: Lahore High Court
Year of Decision: 2025
Decision Date: 2025-05-27
Parties: Naseem Kousar vs The State & another
Ruling Summary: This decision was rendered by the Lahore High Court on 2025-05-27, officially reported as 2025 LHC 4744. In this matter between Naseem Kousar and The State & another, 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.
Case cited as 2025LHC4744
Court Name: Lahore High Court Judge(s): Tariq Saleem Sheikh, Raja Ghazanfar Ali Khan Title: Naseem Kousar vs The State & another Case No.: Criminal Appeal No. 351/2024 Date of Judgment:2025-05-27 Reported As: 2025 LHC 4744 Result: Appeal Allowed
JUDGMENT
JUDGMENT Tariq Saleem Sheikh, J. - This appeal is directed against the judgment dated 18.07.2024 passed by the Additional Sessions Judge, Bahawalpur, in case FIR No.483/2023 dated 14.05.2023 registered at Police Station Civil Lines, District Bahawalpur. The facts 2. On 14.05.2023, PW-1 Muhammad Sohail/T-ASI (the Complainant) was present at Pakora Chowk, Bahawalpur, with other police officials, when he received information from a source that Naseem Kousar (the Appellant), a known drug peddler operating with her husband, had been spotted at Lorry Adda carrying a large quantity of narcotics and could be apprehended if prompt action was taken. On this tip-off, the Complainant reached the specified place and noticed a woman who attempted to flee upon seeing the police. However, the Complainant apprehended her with the help of Irum Shehzadi 160/LC (PW-3). He checked the polythene bag that the Appellant was carrying and recovered two packets of heroin, each weighing 1100 grams. He separated 55 grams from each packet to prepare two sealed sample parcels for chemical analysis. Then he secured the remaining heroin (P-1 and P-2) in two separate sealed parcels and took all four parcels into possession vide Recovery Memo Exh. PA. Thereafter, he drafted the complaint Exh. PB and sent it to the police station through Shehzad Sarwar 1244/C (PW-2), on which FIR No. 483/2023 Exh. PC was registered. Upon completion of the investigation, a report under section 173 Cr.P.C. was submitted. 3. On 13.11.2023, the Additional Sessions Judge indicted the Appellant. She pleaded not guilty. After trial, the court convicted her under section 9(1)-6(d) of the Control of Narcotic Substances Act, 1997 (CNSA), and sentenced her to 14 years' rigorous imprisonment with a fine of Rs. 500,000/-, or six
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months' simple imprisonment in the event of default. She was extended the benefit of section 382- B Cr.P.C. Hence, this appeal. The submissions 4. The Appellant's counsel, Syed Zeeshan Haider, Advocate, contended that the prosecution could not prove the charge against the Appellant beyond a reasonable doubt. Most importantly, safe custody of the case property and safe transmission of the sample parcels to the office of the Punjab Forensic Science Agency (PFSA) were not proved. Hence, the conviction recorded against the Appellant was not sustainable and liable to be set aside. A positive report from the PFSA/Government Analyst Exh. PE was inconsequential and of no avail to the prosecution. 5. Ch. Asghar Ali Gill, Deputy Prosecutor General (DPG), vehemently opposed this appeal. He contended that the prosecution had proved its case to the hilt. Muhammad Sohail/T-ASI (PW-1), Irum Shehzadi 160/LC (PW-3), and Muhammad Akhtar/ASI (PW-4) testified that 2200 grams of heroin had been recovered from the Appellant in their presence. Their testimony, he argued, was corroborated by the positive PFSA report (Exh. PE). The DPG submitted that there were no material contradictions in the prosecution evidence from which the Appellant could derive any benefit and prayed for the dismissal of the appeal. The law and jurisprudence 6. In all criminal cases, the prosecution must prove the charge against the accused beyond a reasonable doubt. At the same time, the principle that "the harsher the sentence, the stricter the standard of proof"[1] must be kept in view. Until 2012, our courts generally held that procedural technicalities could be overlooked in cases involving possession or transportation of narcotics, and a conviction could be recorded if, upon consideration of the entire material, the court was satisfied that the charge had been proved.[2] However, in Ameer Zeb v. The State (PLD 2012 SC 380), the Supreme Court of Pakistan ruled that courts must exercise greater care when trying offences under the CNSA due to the severity of the punishments prescribed. In that case, charas was recovered in the form of slabs/cakes, with four packed into each packet. The police mixed small quantities from several slabs into a single sample for chemical analysis. The Supreme Court held that such a mixture could not be treated as a representative sample of the entire quantity. Where narcotics consist of multiple pieces or are contained in different packets, a separate sample must be drawn from each for chemical examination. In The State through Regional Director ANF v. Imam Bakhsh and others (2018 SCMR 2039), it was held that the prosecution must prove that representative samples of the alleged narcotics remained in safe custody and were securely transmitted to the laboratory without any break in the chain of custody. Any lapse or irregularity in this process undermines the reliability of the Government Analyst's report and deprives it of the evidentiary value necessary to sustain a conviction. The Supreme Court further stated that the report of the Chemical Analyst, prepared under Rule 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001, must specify every test applied for the determination of the identity of the seized substances, along with the complete protocols adopted for conducting those tests, to ensure scientific validity and evidentiary reliability. In Minhaj Khan v. The State (2019 SCMR 326), the Supreme Court held that the police official who takes the complaint from the place of recovery to the police station for registration of FIR is a material witness and the prosecution must examine him during the trial. Most recently, in Zahid Sarfaraz Gill v. The State (2024 SCMR 934), the Supreme Court underscored the critical importance of video recording the recovery and seizure process in narcotics cases and held that it ought to be video recorded to ensure transparency, procedural fairness, and the credibility of the prosecution's case.[3] 7. The menace of narcotics is spreading in our society like never before. Therefore, the Control of Narcotic Substances (Amendment) Act, 2022, has further stiffened the punishments for the narcotics-related offences. While this may help curb the said menace, it has also increased
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instances of false implication. In such circumstances, courts must balance the rights of the accused and those of society. Consequently, they increasingly insist that the prosecution must establish that the prescribed procedural requirements are fulfilled in each case, which include compliance with various provisions of the Police Rules 1934 (the "Police Rules"). 8. Section 25 of the CNSA expressly excludes the application of section 103 Cr.P.C. because people are generally reluctant to become witnesses in criminal cases, particularly involving narcotics. Therefore, in these cases, witnesses are typically police officials. While the law recognizes them as competent as any other member of society, the prosecution must substantiate the recovery with evidence that the raid was duly conducted, the recovered substance was confirmed as narcotics through a Government Analyst's report, and the seized substance was produced and properly exhibited before the court in accordance with law. 9. Rule 22.45 of the Police Rules specifies 25 books/registers that must be maintained at each police station. It uses the word "shall", which ordinarily indicates that the provision is mandatory. However, there are instances in which courts have construed the provisions containing this word as directory.[4] In Province of Punjab and others v. Javed Iqbal (2021 SCMR 328), the Supreme Court held that, in determining whether a provision is mandatory or directory, the court must ascertain the true intention of the legislature. This is to be gathered from the provision's phraseology, its nature and object, the consequences of construing it one way or the other, and the overall scheme of the statute. A provision is mandatory if non-compliance renders the related proceedings illegal or void; it is directory if substantial compliance is sufficient to preserve their validity. A key consideration is whether non-compliance causes inconvenience or injustice. The courts often apply three tests in this regard: (i) the scope and object of the enactment; (ii) considerations of justice and balance of convenience; and (iii) whether the provision relates to the performance of a public duty or the protection of an individual right. Provisions relating to public duties are generally considered directory, while those involving individual rights or privileges are treated as mandatory. 10. The registers listed in Rule 22.45 of the Police Rules, inter alia, include the Station Diary/Daily Diary (Roznamcha) (Register No. II), the Store Room Registrar (Register No. XIX), and the Bound Book of Road Certificates (Register No. XXI). Register No. II (the Station Diary) is a complete record of all events that take place at the police station. Rules 22.48 and 22.49 of the Police Rules prescribe the procedure for maintaining Register No. II and the matters to be entered therein. Register No. II should record not only the movements and activities of all police officials and officers but also the visits of outsiders, whether officials or non-officials, coming or brought to the police station for any purpose whatsoever. In narcotics cases, Register No. II must reflect when the police proceed for a raid or other proceedings. Thus, Register No. II is an authentic way to verify the genuineness of various prosecution claims and procedural steps of the case. 11. Rule 22.70 elaborates on Register No. XIX (the Store Room Register). It states that this register shall be maintained in Form 22.70, and except for articles already included in Register No. XVI,[5] every item placed in the store room must be entered therein, with any subsequent removal duly noted in the appropriate column. The register may be destroyed three years after the date of the last entry. 12. Importantly, Rule 22.49(j) of the Police Rules mandates that the report regarding property in the store room required by Rules 22.15 and 22.18(2) shall also be mentioned in Register No. II. 13. Rule 22.72 provides for Register No. XXI, which is a bound book of road certificates in Form 10.17, contains sufficient certificates in duplicate to last for three months. It is issued to each police station as required. Each certificate, both office copy and duplicate, is given an annual serial number for that police station and, when returned receipted, the issued copy or the receipt in lieu thereof is pasted at the place from which the copy was removed. Each book is destroyed when the last certificate therein is three years old. A road certificate is a formal dispatch document issued for
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various purposes. It is also used whenever case property is transferred from one official custody to another, such as from a police station to a forensic laboratory, from the Malkhana to the court, from the court back to the police station, or to an expert such as a Chemical Examiner, Government Analyst, or Ballistics Expert. 14. Register Nos. II, XIX and Road Certificates greatly help foster public trust and provide credibility to the raid and recovery proceedings. They also help establish the chain of custody of case property and the transmission of sample parcels to the PFSA/Government Analyst, which is essential for convicting an offender under section 9 of the CNSA. 15. It is necessary to highlight two things: firstly, safe custody of the case property is pivotal in prosecutions based on the recovery of contraband material. The prosecution must establish that the chain of custody, including both the sample parcels and the remaining bulk, remained intact at every stage. This chain begins with the recovery of the narcotics and continues through all stages of transfer and storage. For the representative samples, the prosecution must prove that they were properly drawn from the seized drug and transmitted to the testing laboratory without any break. On the other hand, for the remaining bulk, the prosecution must produce the officials responsible for its handling and storage. If the safe custody and transmission of the samples is proved, but the chain of custody for the remaining bulk is not, the court may disregard the bulk. However, a conviction may still be recorded to the extent of the representative samples, provided the case is otherwise proved and the legal requirements, including a positive chemical report, are satisfied. 16. Secondly, the prosecution must produce the recovered narcotics before the court during the trial and have them exhibited through a competent witness. This is a component of the accused's right to a fair trial, which is now guaranteed as a fundamental right under Article 10-A of the Constitution of Pakistan. The Lahore High Court Rules and Orders, Volume III, Chapter 24-B, Part B, Rules 14-E, 14-F, and 14-H are relevant in this context. The evidence should not leave any doubt as to who remained in charge of the articles at each stage of the inquiry, particularly in cases where they were sent to the Chemical Examiner/Government Analyst. The person who packed, sealed, and dispatched such articles should invariably be examined.[6] Every item of case property must be produced in court during the trial, and witnesses must establish its identity and connection with the case.[7] Articles produced in evidence must be appropriately marked as "admitted" or "not admitted", and those admitted should be assigned exhibit numbers in serial order.[8] 17. In Ahmed Ali and another v. The State (2023 SCMR 781), the Supreme Court observed that Rules 22.16, 22.18, 22.23, 22.70, 27.11, 27.12, and 27.13 of the Police Rules, 1934, ensure the integrity of the case property. Thus, the case property must be kept in the Malkhana, with a corresponding entry in Register No. XIX of the relevant police station. The relevant excerpt is reproduced below: "Thus, the Police Rules mandate that case property be kept in the Malkhana and that the entry of the same be recorded in Register No. XIX of the said police station. It is the duty of the police and prosecution to establish that the case property was kept in safe custody, and if it was required to be sent to any laboratory for analysis, to further establish its safe transmission and that the same was also recorded in the relevant register, including the road certificate, etc. The procedure in the Police Rules ensures that the case property, when is produced before the court, remains in safe custody and is not tampered with until that time. A complete mechanism is provided in Police Rules qua safe custody and safe transmission of case property to concerned laboratory and then to trial court."(emphasis added) 18. In Ahmed Ali, the Supreme Court also emphasized that the case property is always relevant for adjudicating a case. Where narcotics are recovered from an accused, they must be produced before the court, as only then can the laboratory report support the prosecution's case. Where conviction and sentence depend on the accused's possession of narcotics (or on aiding, abetting, or associating with such offences), it is incumbent upon the prosecution to produce the recovered
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substance before the court and establish that it is the same case property allegedly seized from the accused. The defence may then request the court to de-seal and weigh the case property for verification. 19. In Jeehand v. The State (2025 SCMR 923), the Supreme Court observed that when the law requires a thing to be done in a particular manner, it must be done in that manner (communi observantia non est recedendum). If the prescribed procedure is not followed, it is presumed that the act has not been lawfully performed. The Court held that this principle becomes even more "inflexible" in cases arising under special enactments like the CNSA, which contains stringent provisions against the accused. It reiterated that to establish safe custody and transmission of the case property, it is incumbent upon the prosecution to produce extracts from Register No.XIX and the Road Certificate during the trial, and failure to do so undermines its case. 20. The legal standards articulated in Ahmed Ali and Jeehand govern the evidentiary requirements in prosecutions under the CNSA. The next question is whether the principles concerning the production of Register No.XIX and the Road Certificate apply to the present case. The Deputy Prosecutor General contended that they cannot be applied because the Supreme Court's judgments are always applied prospectively. Before addressing this contention, we must examine the jurisprudence on this issue. Doctrine of Prospective Overruling - Scope and Application 21. There are two views with regard to the doctrine of precedents - one is described as the Blackstonian theory and the other as "prospective overruling". In his Commentaries on the Laws of England, Blackstone posits that the common law rule was that the court's duty was "not to pronounce a new rule but to maintain and expound the old one." According to him, a judge does not make law but only discovers the true law because it has always been the same. It follows that if a subsequent decision changes the earlier one, the latter does not make law but only discovers the correct principle of law. By this logic, when a precedent is overruled, the later decision does not introduce a new law but merely corrects an error, and the law so declared applies retrospectively. In contrast, in the words of George F. Canfield, the doctrine of "prospective overruling" postulates that "a court should recognize a duty to announce a new and better rule for future transactions whenever the court has reached the conviction that an old rule (as described by the precedents) is unsound even though feeling compelled by stare decisis to apply the old and condemned rule to the instant case and to transactions which had already taken place." 22. The U.S. Supreme Court adopted the doctrine of prospective overruling for the first time in Great Northern Railway v. Sunburst Oil and Refinery Co., 287 U.S. 358 (1932). It was then reaffirmed in Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371 (1940), and Griffen v. Illinois, 351 U.S. 12 (1956). 23. In Wolf v. Colorado, 338 U.S. 25 (1949), the U.S. Supreme Court held 6-3 that the Fourteenth Amendment did not preclude state courts from admitting evidence obtained through unlawful searches. This view was later overruled in Mapp v. Ohio (367 U.S. 643, 1961), which held that such evidence was inadmissible in both federal and state courts. In Linkletter v. Walker, 381 U.S. 618 (1965), the question arose as to whether the exclusionary rule laid down in Mapp should apply to convictions that had already attained finality before that decision. The Supreme Court, by majority, held that it should not. Justice Clark observed that "the existence of the Wolf doctrine prior to Mapp is an `operative fact' and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration." The Court reasoned that retrospective application would not advance the purpose of deterring unlawful police conduct. Rather, it would disrupt the administration of justice, as evidence might have been destroyed, misplaced, or deteriorated. Moreover, witnesses might be unavailable or their memories faded. It would also be unfair to order the wholesale release of convicted persons based on a procedural change unrelated to their guilt.
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This case reaffirmed the doctrine of prospective overruling, adopting a practical stance against retroactivity. Today, the doctrine of prospective overruling is accepted in all branches of law in the United States, including constitutional law, "but the carving of the retrospectivity of the new rule is left to courts to be done, having regard to the requirements of justice."[9] 24. Although various jurists criticized the Blackstonian theory, the English Courts followed it for a long time. However, in the Practice Statement (Judicial Precedent), while stating that rigid adherence to precedent is not proper and that it may depart from a previous decision when it appears just, the House of Lords observed that it is necessary to bear in mind "the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law."[10] This decision marked a significant departure from the Blackstonian theory and accepts the doctrine of prospective overruling, not expressly but by necessary implication. 25. In I.C. Golak Nath and others v. State of Punjab and another (AIR 1967 SC 1643), the Supreme Court of India (SCI) described prospective overruling as a modern doctrine suited to a dynamic society. It observed that, in one sense, the court merely declares the law, whether customary, statutory, or personal. Although the doctrine may involve law-making in strict theory, the court actually declares the law but refuses to give it retroactive effect. It is a pragmatic device that reconciles two competing theories: that a court discovers the law and that it also makes law. The court finds the law but limits its operation to the future. This approach enables a smooth transition by correcting errors without unsettling past transactions. The court has the discretion to determine the extent of retroactivity, allowing it to mould relief to meet the ends of justice. The SCI held that, in India, there is no statutory prohibition against the court refusing to give retroactivity to the law it declares. The doctrine of res judicata precludes retroactive application in matters finally adjudicated between the parties. Furthermore, Indian courts, through interpretation, often reject retroactive application of statutory provisions, even when expressed in general terms, on the ground that such application would affect vested rights. The SCI ruled that the Indian Constitution does not expressly or by necessary implication speak against the doctrine of prospective overruling. Articles 32, 141, and 142 are couched in such broad and elastic terms as to enable the Supreme Court to formulate legal doctrines to meet the ends of justice. The only limitation thereon is reason, restraint, and injustice. The SCI laid down three key propositions: "(1) The doctrine of prospective overruling can be invoked only in matters arising under our Constitution; (2) it can be applied only by the highest court of the country, i.e., the Supreme Court, as it has the constitutional jurisdiction to declare law binding on all the courts in India; (3) the scope of the retroactive operation of the law declared by the Supreme Court superseding its earlier decisions is left to its discretion to be moulded in accordance with the justice of the cause or matter before it."[11] The Indian courts have thus developed a flexible doctrine that enables a balance between fairness and legal certainty in the application of judicial pronouncements. Legal position in Pakistan 26. In Pakistan, Article 189 of the Constitution mandates that the decision of the Supreme Court is binding on all other courts in the country to the extent that it decides a question of law or is based upon or enunciates a principle of law. However, neither the Constitution nor any statute provides whether the law declared by the Supreme Court as aforesaid would be retroactive or otherwise. Therefore, we must look at the cases that have been decided over the years. In Muhammad Yusuf v. The Chief Settlement and Rehabilitation Commissioner and another (PLD 1968 SC 101), the Supreme Court held: "[The judgment in the case of Jalal Din v. The Chief Settlement Commissioner (PLD 1965 SC 261)] was delivered on the 2nd November 1964, and its consequence was that as from that date all courts subordinate to the Supreme Court and all executive and quasi judicial authorities were
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obliged by virtue of the Constitution to apply the rule as laid down by the Supreme Court in cases coming up before them for decision. It did not have, and it cannot be contended that it had, the effect of altering the law as from the commencement of the Act so as to render void, of its own force all relevant orders of the Settlement authorities or of the High Court made in the light of the earlier interpretation which was that the exercise of the delegated power was subject to the provisions in Chapter VI of the Act." 27. In Sakhi Muhammad and another v. Capital Development Authority, Islamabad (PLD 1991 SC 777), the landowner acquiesced in the award given in 1968. Fifteen years later, in…
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