Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Official Citation: 2025 SHC 1699
Court / Jurisdiction: Sindh High Court
Petitioner: Const. P. 725/2025 (D.B.) Sindh High Court, Circuit at Hyderabad - Peer Bux (Petitioner)
Ruling Summary: This decision was rendered by the Sindh High Court, officially reported as 2025 SHC 1699. In this matter between Const. P. 725/2025 (D.B.) Sindh High Court, Circuit at Hyderabad - Peer Bux (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. 725/2025 (D.B.) Sindh High Court, Circuit at Hyderabad CITATION: 2025 SHC HYD 1699 PARTIES: Peer Bux (Petitioner) ORDER DATE: 27-MAY-25 BENCH: Hon'ble Mr. Justice Arbab Ali Hakro, Hon'ble Mr. Justice Riazat Ali Sahar(Author) A.F.R: Yes ------------------------------------------------------------ IN HIGH COURT OF SINDH, CIRCUIT COURT HYDERABAD
C.P No. D - 725
of 202 5
[Peer Bux v. The State ]
Before :
Mr. Justice Arbab Ali Hakro
Mr. Justice Riazat Ali Sahar
O R D E R
RIAZAT ALI SAHAR, J.
Through this order , we intend to dispose of captioned petition, wherein the petitioner is seeking his release on bail in crime No.199/2025 registered against him at PS Kotri for the offence punishable under section 9 (2) 3 of Sindh Control of Narcotics Act 2024.
2 .
There exi sts no express provision regarding the grant of bail under the Sindh Control of Narcotics Act, 2024 (hereinafter referred to as “the Act”), as is evident from the language employed in Section 35, which reads as under:
35.
No bail is to be granted in respe ct of certain offences -
(1) Notwithstanding anything contained in sections 496 and 497 of the Code, the bail shall not be granted to an accused person charged with an offence under this Act.
Counsel for Petitioner:
Mr. Hyder Ali Unar, Advocate
Counsel / Representative
for Respondents:
Mr. Siraj Ahmed Bijarani, A.P.G. Sindh.
Date of Hearing
27.05.2025
Date of Order
27.05.2025
2 However, as per the order dated 22 . 04 . 2025 passed by the Larger
Bench of this Court at its Principal Seat in Constitutional Petition No. D - 937 of 2025, the Honourable Acting Chief Justice of Sindh, being the author of the judgment, was pleased to lay down that in view of the absence of any provision regarding the gran t of bail under the Sindh Control of Narcotics Act, 2024 (“the Act”), all matters pertaining to bail under the said Act shall fall exclusively within the domain of the Constitutional Bench of the High Court of Sindh for consideration under its constitution al jurisdiction.
3 .
Furthermore,
in NAB Ordinance, 1999,
the opportunity of bail was not provided by the Statute against the fundamental rights under Article 10 - A of the Constitution of Islamic Republic of Pakistan, 1973 and same was discussed by the Honoura ble Supreme Court of Pakistan in the case of Khan Asfandyar Wali v. Federation of Pakistan [PLD 2001 SC 607] , the Honourable Supreme Court held that the petitions were maintainable under Article 184(3) of the Constitution as they raised issues of public im portance relating to the enforcement of fundamental rights. The constitutionality of the NAB Ordinance, 1999 was challenged for violating several constitutional provisions, particularly Articles 4, 9, 10, 12, 18, 23, 24, 25, 175, 202, and 203. The Court fo und that the Ordinance created a parallel judicial system by assigning judicial powers to the executive, thus infringing upon the principle of separation of powers. Notably, Section 9(b) of the Ordinance, which ousted the jurisdiction of the High Courts to
grant bail, was declared ultra vires
to the Constitution, reaffirming that High Courts retain such jurisdiction under Article 199. The Court directed that Accountability Court Judges must be
3 serving District and Sessions Judges under the supervisory contr ol of the respective High Courts. It also clarified that the offence of " willful
default" under Section 5(r) was a continuing one and not retrospective, hence not violative of Article 12. While some provisions were struck down, the Supreme Court applied th e doctrine of severability and recommended necessary amendments rather than invalidating the entire Ordinance. Additionally, various directions were issued to ensure judicial independence, due process, and accountability reforms. The affirmation of High Co urts' powers under Article 199,
including the authority to grant bail , is explicitly stated in paragraph (r), where the Court held that “ Section 9(b) of the Ordinance to that extent is ultra vires the Constitution... The superior Courts under Article 199 o f the Constitution remain available to their full extent... ”
4 .
The allegation against the petitioner is that on 03.05.2025, the complainant, ASI at PS Kotri, along with subordinate staff, proceeded on patrol in government vehicle SPE - 845, as per roznamcha entry No. 16. While patrolling Liaquat Road, Mariyam Garden and the protective bank, they reached near Burfat
Muhallah at about 1730 hours and observed a suspicious individual com ing from Burfat
Muhallah. He was apprehended ,
who
identified himself as Peer Bux s/o Khamiso, caste Shoro. Upon personal search, a white shopper was recovered from the right pocket of his shirt, containing 65 grams of “ Ice ”
and four currency notes of Rs.100 each. Due to the absence of public mashirs, PC Wasim Ahmed Abro and PC Afta b Ahmed Sohag acted as official mashirs. The contraband and cash were seized,
4 documented in the mashirnama and sent for chemical analysis. The accused was brought to the police station, where FIR was registered under Section 9
(2) (3) of the Sindh Control of Narcotic Substances Act, 2024.
5 .
Mr.
Hyder Ali Unar, learned counsel for petitioner argued there are no reasonable grounds to believe that the petitioner has
committed the alleged offence under Section 9 (2) 3 of Sindh Control of Narcotics Act, 2024. Learned counsel for the applicant contends that the FIR has been lodged maliciously due to enmity with the police and the story narrated therein is stereotypical, superficial, flawed and clumsily constructed, lacking coherence and not appealing to the ordi nary sense of logic or common prudence. The counsel claims no narcotics w as
recovered from the
exclusive possession
of the petitioner , the alleged arrest and recovery was
staged at the police station and the FIR suffers from legal defects — particularly the absence of independent mashirs in a densely populated area, in violation of Section 103 Cr.P.C. Furthermore, the counsel also stress that no video recording was made as r equired under Section 17
(2) of the Act. He urged
that all witnesses are police officials with vested interests, ther e was no corroborative evidence
and that his
implication is due to enmity . Learned counsel highlights petitioner clean antecedents, local r esidence, and willingness to cooperate, contending that bail should not be withheld as a form of punishment, especially since wrongful incarceration is irreparable if he is later acquitted. Hence, he seeks bail on
the
ground of further inquiry, mala fide, and lack of credible evidence.
5 6 .
Mr.
Siraj Ahmed Bijarani, the learned Assistant Prosecutor General, ( A.P.G. )
Sindh opposes the bail, arguing that the Petitioner was caught red - handed with “Ice” under Section 9 (2) 3 of Sindh Control of Narcotics Act, 2024.
The recovery was lawfully made, with all legal formalities duly observed, including proper documentation and dispatch for chemical analysis. The absence of private mashirs is explained by publi c reluctance in narcotics cases
and the testimony of police of ficials cannot be discarded solely on that basis. Allegations of political victimisation are termed baseless and unsubstantiated. The learned APG contends that while video recording under Section 17(2) is desirable, its absence is not fatal to the prosecut ion case. Given the gravity of the offence, the quantity of narcotics recovered and the statutory presu mption of guilt, the Petitioner has
failed to establish grounds for further inquiry, and therefore ,
is
not entitled to the concession of bail.
7 .
Heard. Record Perused.
8 .
It becomes pertinent to observe that Section 35 of the Act comprises two distinct limbs. The first limb, which pertains to the exclusion of the grant of bail, in our
considered view, appears to have been enacted with the intent of addressi ng the alarming rise in drug - related offences within society. This legislative restriction seems designed as a deterrent, aimed at combating the growing menace of drug trafficking and curbing the spread of narcotic substances. Recent high - profile arrests — s uch as that of a young individual named Armaghan, which has garnered extensive media coverage — underscore the urgency and gravity of the drug crisis that necessitates
6 such stringent measures.
The second limb, encapsulated in sub - section (2) of Section 35, s tipulates that "the trial court shall conclude the trial within a period of six months."
This provision reflects the legislature’s intent to ensure that the Special Courts — yet to be established by the Provincial Government — proceed expeditiously with the adjudication of narcotics cases. 1 The object is to safeguard the rights of the accused, par ticularly those who may have been falsely or maliciously implicated, by preventing prolonged incarceration without trial. Thus, while the first limb addresses deterrence and public safety, the second seeks to balance these aims with procedural fairness and
timely access to justice.
9 .
It also becomes overarchingly significant to elaborate upon the scope and legislative intent of Section 17 of the Act. This provision predominantly addresses situations where no prior arrest or search warrant has been obtained, yet the Police/Narcotic Force
has credible information suggesting the presence of prohibited substances “concealed in any building, place, premises or conveyance.”
In such circumstances, the law recognises the urgency and permits immediate action; however,
to prevent abuse of this discretion, Section 17(2) mandates that “video recording of all raids, seizures, inspections and arrests shall be made by the officer in charge of such operation.” A narrow or isolated reading of Section 17(2) would undermine the s afeguards envisioned by the legislature within the broader
1
The urgent need of such special court was also emphasized by Muhammad Karim Khan Agha, J in Syed Sahir Hassan v. P.O Sindh & others [CP No. D - 937 of 2025] as :
“Accordingly a copy of this order shall be sent to the Chief Secretary and Secretary Law, gove rnment of Sindh, who shall ensure that special Courts under the aforesaid Act are established
immediately and the Judges for such Courts shall be appointed in accordance with law expeditiously so that these cases can be tried and the petitioner and other may not left languishing in jail without any resource”
7 framework of Section 17
of the Act . The true purpose behind such mandatory video recording, particularly in warrantless situations, is not only to validate the claimed recovery of narcotic substanc es but also to ensure transparency, accountability and credibility in the actions of the law enforcement agencies. It serves as a check on the arbitrary exercise of power and provides evidentiary assurance that the recovery was made from the accused, and n ot planted subsequently.
In our respectful view, Section 17
(2)
of the Act
ought to be interpreted purposively and in consonance with the growing jurisprudential need to balance public interest with individual rights. Given the surge in both drug abuse and
alleged misuse of authority by enforcement personnel, this statutory requirement assumes critical importance. Video footage or photographic evidence should ideally capture the accused, the recovered substance, the precise location of recovery and the pres ence of responsible officers at the time of preparation of “ Mashirnama ” (Inspector memo of recovery and arrest) . This procedural safeguard becomes an indispensable tool in separating genuine prosecutions from those tainted with mala fides .
The above proposition finds authoritative backing in the observation of the Honourable Supreme Court in the case of Zahid
Sarfraz Gill 2 ,
2 Zahid
Sarfaraz Gill v. the State [2024 SCMR 934]: Qazi
Faez Isa, CJ,
“6. In narcotic cases the prosecution witnesses usually are ANF personnel or policemen who surely would have a cell phone with an in - built camera. Personnel
of those arrested with narcotic substances generally there are only a few witnesses, and most, if not a ll, are government servants. However, trials are unnecessarily delayed, and resultantly the accused seek bail first in the trial court which if not granted to them is then filed in the High Court and there too if it is declined, petitions seeking bail are then filed in this Court. If the police and ANF were to use their mobile phone cameras to record and/or take photographs of the search, seizure and arrest, it would be useful evidence to establish the presence of the accused at the crime scene, the possess ion by the accused of the narcotic substances, the search and its seizure. It may also prevent false allegations being levelled against ANE/police that the narcotic substance was foisted upon them for some ulterior motives.
8 where the Court emphasised the evidentiary value and procedural sanctity of visual documentation during recovery. This principle was subsequently reaffirmed in the case of Muhammad Abid Hussain 3 , wherein the Court once again underscored the indispensable role of video recording in ensuring fair investigation and protecting the rights of the accused.
Hence, Section 17(2) sh ould not be viewed as a mere procedural formality but as a vital element of lawful prosecution under the Control of Narcotic Substances regime — anchored in fairness, due process
and judicial oversight.
More so, Sections 16, 17 and 18 under Chapter - III of th e Act
are interconnected with each other . It is also pertinent to mention here that as Section 17 (1) of the Act, provides that the powers of entry, search, seizure and arrest
9. Copy of this order be sent
to the Secretary Ministry of Narcotics Control, Government of Pakistan, Director - General, Anti - Narcotics Force, the Secretaries of the Home Departments of all the provinces, Inspector - Generals of Police of all the provinces and of the Islamabad Capital Te rritory. They may also consider whether they want to amend the ANF/Police rules to ensure making video recordings/ taking photographs whenever possible with regard to capturing, preserving and using such evidence at trial.”
3 Muhammad Abid Hussain v.
The State [2025 SMCR 721];
Muhammad H ashim Khan Kakar, J,
“ 5. At the very outset, it would be relevant to state that the Act of 1997 prescribes severe punishments for the possession and, sale of narcotic
substances. Given the gravity of the penalties, the stand ard of proof required to establish guilt must be correspondingly high. The prosecution must demonstrate beyond reasonable doubt that the petitioner was in possession of narcotic substance and that it was intended for sale.
Article 164 of Qanun - e - Shahadat O rder, 1984 emphasizes the importance of modern devices and techniques in the collection of evidence. It provides that evidence obtained through modern devices, such as video recordings, should be given due weight in judicial proceedings. This provision und erscores the need for law enforcing agencies to adopt contemporary methods to ensure the accuracy and reliability of evidence. In this regard, in a criminal case titled Zahid
Sarfaraz Gill v. State (2024 SCMR 934), this Court had granted bail after arrest to an accused carrying 1833 grams of charas which, as per the table in section 9(1) of the Act of 1997, comes under clause (c) of its third category and prescribes a minimum imprisonment of nine years and a maximum of fourteen years and fine, on the ground
that why the police and members of the Anti - Narcotics Force do not record or take photographs when search, seizure and/or arrest is made. Article 164 of the Order, 1984 specially permits the use of any evidence that may have become available because of mo dern devices or techniques, and its Article 165 overrides all other laws. This Court had sent the copy of the order ibid to the Secretary, Ministry of Narcotics Control, Government of Pakistan, Director General Anti - Narcotics Force, the Secretaries of the Home Departments of all Provinces, Inspector Generals of Police of all the provinces and of the Islamabad Capital Territory to consider whether they want to amend the ANF/Police rules to ensure making video recordings/taking photographs whenever possible w ith regard to capturing, preserving and using such evidence at trial.”
9 without warrant , whether in some premises or in public
place,
are vested to an officer not below the rank of Inspector of Narcotic Control or equivalent authorized by Director General Narcotics Control Sindh.
For the sake of convenience, I want to reproduce the sections 16, 17 and 18 under Chapter - III of the Act as under: -
CHAPTER –
III
SEARCH AND INVESTIGATION
16.
Power to issue warrants. –
(1) A Special Court/competent court may issue a warrant for the arrest of any person whom it has reasons to believe to have committed an offence punishable under this Act, or for the search, whether by day or by night, of any building, place, premises or conveyance in which he has reason to believe any narcotic drug, psychotropic substance, precursor chemical or controlled substance in respect of which an offence punishable under this Act has been committed is kept or concealed.
(2)
The officer to whom a search warrant under sub - section (1) is addressed shall have all the powers of an officer acting under section 17.
17.
Power of entry, search, seizure and arrest without warrant. –
(1) Where an officer, not below the rank of Inspector Narcotics Control o r equivalent authorized in this behalf by Director General Narcotics Control Sindh, who from his personal knowledge or from information given to him by any person is of opinion that any narcotic drug, psychotropic substance, precursor chemicals or controll ed substance and methamphetamine in respect of which an offence punishable under this Act has been committed is kept or concealed in any building, place, premises or conveyance, and a warrant for arrest or search cannot be obtained against such person with out affording him an opportunity for the concealment of evidence of facility for his escape, such officer may -
( a )
Enter into any such building, place, premises of conveyance;
( b )
Break open any door and remove any other obstacle to such entry in case of resistan ce;
( c )
Seize such narcotics drugs, psychotropic substances, precursor chemical, controlled substances and other materials used in the manufacture thereof and any other article which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act; and
( d )
Detain, search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed an offe nce punishable under this Act.
10
(2)
The video recording of all raids, seizures, inspections and arrests shall be made by the officer in - charge of such operations.
(3)
Before or immediately after taking any action under sub - section (1), the officer referr ed to in that sub - section shall record the grounds and basis of his information and proposed action and forthwith send a copy thereof to his immediate superior officer.
(4)
All the offences under this Act shall be cognizable and non - bail - able.
18.
Power to seizure and arrest in public place.
-
An officer authorized under section 17 may -
( a )
Seize, in any place or in transit, any narcotic drug, psychotropic substance, precursor chemical or controlled substance in respect of which he has reason to belie ve that an offence punishable under this Act has been committed, and, along - with such drug, substance or any other article liable to confiscation under this Act, and any document or other article which he has reason to believe may furnish evidence of the c ommission of an offence punishable under this Act; and
( b )
Detain and search any person whom he has reasons to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug, psychotropic substance, precursor chemical
or controlled substance in his possession and such possession appears to him to be unlawful, arrest him.
10 .
The
principle emerging that the grant of bail is not to be mechanically denied solely on the basis of the quantity of the recovered substance but must instead be assessed in light of the overall facts and circumstances of the case, including the nature of evi dence, procedural compliance, and the legal principles governing bail.
11 .
If the prosecution successfully demonstrates, even at the bail stage, a credible and convincing account of recovery from the possession of the accused, the burden then shifts to the accused to dislodge such presumption through tangible and cogent material,
even for the limited purpose of seeking concession of bail. This rebuttal, however, need not be conclusive at this stage but must raise
11
substantial doubts in the prosecution’s version sufficient to bring the case within the ambit of further inquiry. It is
a settled principle that at the bail stage, the Court is not required to conduct a mini - trial, but a tentative assessment of the available material is necessary to weigh the plausibility of the respective claims. Thus, both the prosecution and the defence
bear the obligation to assist the Court in establishing or controverting the alleged recovery, in order to secure the relief sought or to justify its denial. In essence, the quantum of the narcotic substance, though relevant, is not an absolute bar to the
grant of bail. The question ultimately hinges upon the prima facie
integrity of the recovery proceedings and the likelihood of the accused being connected to the offence in the manner alleged. In this context, it is pertinent to note that the term “narcot ic drug” under the Sindh Control of Narcotic Substances Act, 2024, includes methamphetamine , which is specifically defined under Section 2
(x)
(ii) of the Act. Furthermore, Schedule III(a) of the Act, at Serial No.49, lists methamphetamine as its international non - proprietary name. Its commonly known or trivial names include “ Ice ,” “Chalk,” and “Crystal,” while its chemical name is identified as N - Methyl - 1 - phenyl - propan - 2 - amine. Accordingly, the substance allegedly recovered in the present case fal ls squarely within the statutory definition of a narcotic drug under the Act. The alleged recovery of 65 grams of “ Ice ”
directly attracts the provisions of Section 9
(2)
(3) of the Act, which prescribes a sentence of imprisonment that may extend to three y ears but shall not be less than two years, along with a fine which may be up to three hundred thousand rupees . It is pertinent to underscore that the minimum punishment provided — being two years — falls below the
12
threshold of the prohibitory clause as envisag ed under Section 497(1) Cr.P.C,
which mandates a minimum sentence of ten years or more. Consequently, the offence, on the face of it, does not fal l within the prohibitory clause
and the case calls for further inquiry, making the applicant entitled to consi deration for bail. Prima facie , it appears that the material on record does not connect the petitioner to the commission of the offence in the manner alleged by the prosecution.
12 .
Furthermore, the alleged arrest took place during daylight hours. It is there fore implausible that no private individuals were present who could have been associated as mashirs to witness the alleged recovery proceedings. While it is settled law that Section 103 Cr.P.C. is rendered inapplicable to offences under the CNS Act, owing to its exclusion by virtue of Section 25 of the said Act. In the instant case, the alleged recovery was effected by an Assistant Sub - Inspector of Police, who also proceeded to lodge the FIR. However, Section 17(1) of the Sindh Control of Narcotic Substance s…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.