Form No: HCJD/C-121

ORDER SHEET
IN THE ISLAMABAD HIGH COURT, ISLAMABAD
(JUDICIAL DEPARTMENT)

PRESENT:

Mr Justice Tariq Mehmood Jehangiri, J.

Mr Justice Babar Sattar, J.
Mr Justice Arbab Muhammad Tahir, J.

Crl. Misc. No.431-B-2024

Barkat Ullah
Versus
The State & another

Petitioners by : Mr Muhammad Ilyas Khan, Advocate.

Mr Mujahid Khan, Advocate.
Mr Danish Akbar Khan, Advocate.
Mr Waqar Ahmed Khan, Advocate.

Respondents by : Rana Zulfiqar Ali, Special Public Prosecutor, ANF.

Mr Tahir Kazim, Law Officer, ICT Police.
Dr Tanvir Ahmed, Incharge, Federal Narcotics
Testing Lab.

Malik Abdul Rehman, State Counsel/Amicus Curiae.

Assisted by : Mr Sajjad Ali, Law Clerk.

Date(s) of Hearing : 27.06.2024.

Arbab Muhammad Tahir, J.- This Bench has been

constituted to decide the legal questions raised by my lord Mr Justice
Babar Sattar, J. while hearing a bail petition wherein the petitioner
accused of possessing 542 grams of heroin, pleaded the ground that
his case is not covered under the prohibitory clause of section 497(1)
of the Code of Criminal Procedure, 1898 (hereinafter “Cr.P.C.”). My
lord Mr Justice Babar Sattar, J. in his order, dated 18.03.2024, has
highlighted several judgments of the Supreme Court as well different
High Courts (including this Court), wherein contradictory views with
regard to application of the prohibitory clause contained in section
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Crl. Misc. No.431-B/2024

497(1) Cr.P.C. have been taken. The legal questions for our
consideration framed vide order, dated 18.03.2024, are as follows.-

a) While defining which offence falls within the prohibitory

clause under section 497(1) of Cr.P.C, is the maximum
punishment for the said offence to be taken into
account or is the minimum or alternative punishment of
fine etc. to be taken into account?

b) What weight of a contraband, where such contraband is

heroin, qualifies as a borderline case, which, in the
absence of any other grounds for bail, would suffice to
make the case one of further inquiry on the basis of
doubt as to whether such case attracts the statutory
prohibition of section 497(1) of Cr.P.C or not?

2. The learned counsels for the petitioners have relied upon

various judgments1 of the Supreme Court as well as the High Courts
including this Court, wherein bail has been granted to the accused
person keeping in view lesser or alternate punishment provided for an
offence.

3. In order to answer the above legal questions, it would be

appropriate to reproduce section 497(1) Cr.P.C. for convenience.-

1
Jamal-ud-Din alias Zubairi v. The State (2012 SCMR 573), Khuda Bux v. The State (2010 SCMR 1160),
Sagheer Ahmed v. The State and another (2024 SCMR 913), Reginald Chude Bjekwe v. The State
(2021 MLD 2028), Faiz Rasool v. The State (Crl.Misc. No.1195-B/2022, IHC), Abdul Latif v. The State
(2016 PCrLJ Note 122), Altaf Hussain v. The State and another (Crl. Misc. No.745-B/2022, IHC),
Muhammad Akram v. The State (2020 PCrLJ 31 Sindh), Muhammad Azam Khan Swati v. The State
and another (2023 PCrLJ 350 Islamabad), Ghulam Haibi v. The State (Crl.Misc. No.645/2024, IHC).
Taj Muhammad v. The State (Crl. Misc. No.293-B/2024, IHC), Hanan Ahsan v. The State (Crl. Misc.
No.1650-B/2022, IHC), Asim Hanif v. The State (Crl. Misc. No.1998-B-2023, IHC), Izzat Khan v. The
State (Crl. Misc. No.176/B of 2024, IHC), Arshad alias Goga v. The State (2022 PCrLJ 198),
Muhammad Shafique v. the State (2016 PCrLJ 1315), Ismail Ijaz v. The State (2023 PCrLJ 114),
Mustafa Ali v. The State (2014 PCrLJ 1464), Ameer Ullah v. The State (2012 PCrLJ 1858),
Muhammad Hayat Khan v. The State and another (2019 PCrLJ 472), Naeem Shah v. the State (2023
YLR 166 Lahore), Umair Shaukat v. The State (Crl. Misc. B.A. No.398-A/2020), Faizan v. The State
(2021 YLR 629 Sindh), Talib Hussain v. The State (2014 YLR 1319 Sindh), Mevo Rind v. The State
(2012 YLR 151 Sindh), Shehzore and another v. The State (2006 YLR 3167), Zahid Maseeh and
another v. The State (2012 MLD 814 Sindh), Zahid Hussain Chandio v. The State (2016 MLD 1103),
Muhammad Fayaz v. The State (2010 YLR 1934), Muhammad Amin v. The State (2017 YLR 609
Sindh), Shahid Ahmed v. The State (2022 PCrLJ Note 89), Dila Baz Khan v. The State (2008 PCrLJ
1437 Peshawar).
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Crl. Misc. No.431-B/2024

497. When bail may be taken in cases of non-

bailable offence. (1) When any person accused of any
non bailable offence is arrested or detained without
warrant by an officer-in-charge of a police station, or
appears or is brought before a Court, he may be
released on bail, but he shall not be so released if there
appears reasonable grounds for believing that he has
been guilty of an offence punishable with death or
imprisonment for life or imprisonment for ten years:

Emphasis supplied

4. The first part of Section 497(1) Cr.P.C. provides that if a

person accused of a non-bailable offence is arrested, he may be
released on bail. Because of the enabling expression, “may be
released on bail”, used in this part, read with the basic principles of
criminal justice, the grant of bail in a non-bailable offence that does
not fall within the second part of Section 497(1) Cr.P.C. is said to be a
rule and refusal, an exception. The second part of Section 497(1)
Cr.P.C. provides that an accused shall not be released on bail if there
appear reasonable grounds for believing that he has been guilty of an
offence punishable with death or imprisonment for life or
imprisonment for ten years. This part of Section 497(1) Cr.P.C. which
prohibits the grant of bail in certain offences is popularly known as the
prohibitory clause of Section 497(1) Cr.P.C. (Syed Raza Hussain
Bukhari’s2 case)

5. The main purpose of keeping an under-trial accused in

detention is to secure his attendance at the trial so that the trial is
conducted and concluded expeditiously or to protect and safeguard
the society, if there is an apprehension of repetition of offence or
commission of any other untoward act by the accused. Therefore, in

2
Syed Raza Hussain Bukhari v. The State through D.A.G, etc. (PLD 2022 SC 743)
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Crl. Misc. No.431-B/2024

order to make the case of an accused person fall under the exception
to the rule of grant of bail in offences not covered by the prohibitory
clause of Section 497(1) Cr.P.C., the prosecution has to essentially
show from the material available on the record, such circumstances
that may frustrate any of the said purposes, if the accused person is
released on bail. (Iftikhar Ahmed’s3 case)

6. In the facts and circumstances of the case, the word

“punishable” used in section 497(1) of Cr.P.C. needs interpretation so
as to determine whether such expression means the “maximum”
punishment provided for an offence. In this regard it would be
advantageous to briefly discuss the legislative history of section
497(1) Cr.P.C.-

Evolution of Section 497(1):

 Initially, the provision prohibited bail if there
were reasonable grounds to believe the accused
was guilty of a non-bailable offence.
 In 1923 4, this prohibition was limited to offences
punishable with death or transportation for life.
5
 In 1974 , the prohibition was extended to
offences punishable with death, imprisonment for
life, or imprisonment for ten years.

Current Legislative Intent:

 The legislative intent of section 497(1) is clear:
bail is generally permissible for offences where
the maximum punishment is less than ten years.
 For offences punishable with up to ten years'
imprisonment, the court must determine if there
are reasonable grounds to believe the accused is
guilty of such an offence.

3
Iftikhar Ahmed v. The State through P.G. Punjab and another (PLD 2021 SC 799)
4
The Code of Criminal Procedure (Amendment.) Act, 1923 (18 of 1923)
5
The Criminal Procedure (Amendment.) Act, 1974 (25 of 1974)
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Crl. Misc. No.431-B/2024

7. The Supreme Court, in Tariq Bashir’s6 case observed that

it is crystal clear that in bailable offences the grant of bail is a right
and not favour, whereas in non-bailable offences the grant of bail is
not a right but concession/grace. Section 497, Cr.P.C. has divided
non-bailable offences into two categories i.e. (i) offences punishable
with death, imprisonment for life or imprisonment for ten years; and
(ii) offences punishable with imprisonment for less than ten years. The
principle to be deduced from this provision of law is that in non-
bailable offences falling in the second category (punishable with
imprisonment for less than ten years) the grant of bail is a rule and
refusal an exception. So bail will be declined only in extraordinary and
exceptional cases, for example.-

(a) where there is likelihood of abscondcace of the

accused;
(b) where there is apprehension of the accused
tampering with the prosecution evidence;
(c) where there is danger of the offence being
repeated if the accused is released on bail; and
(d) where the accused is a previous convict.

8. The above principles were reaffirmed by the Supreme

Court in the cases of Zafar Iqbal 7 , Subhan Khan 8 and Riaz Jafar
9
Natiq . The fact that in case of offences for which maximum
punishment of ten years and more is provided, fall within the
prohibitory clause of section 497(1) Cr.P.C. has also been affirmed by
the Supreme Court in the cases of Bilal Khan10, Sheqab Muhammad11
and Ghazan Khan12.

6
Tariq Bashir and 5 others v. The State (PLD 1995 SC 34)
7
Zafar Iqbal v. Muhammad Anwar and others (2009 SCMR 1488).
8
Subhan Khan v. The State (2002 SCMR 1797)
9
Riaz Jafar Natiq v. Muhammad Nadeem Dar (2011 SCMR 1708)
10
Bilal Khan v. State (2020 SCMR 937)
11
Sheqab Muhammad v. The State (2020 SCMR 1486)
12
Ghazan Khan v. Mst .Ameer Shuma (2021 SCMR 1157)
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Crl. Misc. No.431-B/2024

13
9. In Majid Ali’ case, this Court has interpreted the
expression “punishable” used in section 497(1) Cr.P.C. as follows.-

“The word "punishable" has been defined by Black's Law

Dictionary to mean "subject to a punishment" when used
in relation to a person. The ordinary dictionary meaning of
the word "punishable" therefore clarifies that in the event
that an offence that a person has been charged with could
possibly result in the punishment of ten years in prison
such offence would fall within the prohibitory clause. Thus,
any offence in relation to which punishment has been
prescribed in the form of a range and it has been left to
the court to determine the sentence in view of the facts of
the case, but the maximum punishment that could
possibly be awarded for such offence is ten years, would
fall within the prohibitory part of section 497(1) of Cr.P.C.
Simply put, it is the maximum punishment and not the
minimum prescribed in relation to an offence under P.P.C.
that determines whether or not the accused is
"punishable" for ten years and whether the offence in
question falls within the prohibitory clause or not. At bail
stage it is not for the court to try and predict the possible
sentence that would be imposed on a person under arrest
for being an accused of a non-bailable offence.

10. The expression “punishable”, therefore, refers to

maximum sentence or punishment provided for an offense. In other
words, if a penal provision makes an offence punishable by ten years,
it refers the power of the court to award a sentence upto ten years in
prison, if found guilty. However, on conclusion of trial, the actual
sentence imposed by the court may be less than the maximum
punishment, depending on various factors, such as severity of offence,

13
Majid Ali v. The State and another (2022 PCrLJ 981 Islamabad)
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Crl. Misc. No.431-B/2024

offender’s criminal history, mitigating circumstances and discretion of

the court.

11. There is another aspect of the matter, i.e. can we relate

the expression “punishable” to the minimum sentence provided for an
offence? There are some arguments to support an affirmative answer
to this question as well. Let us first discuss the arguments and then
we will try to put the same in juxtaposition to section 497(1) Cr.P.C.
Subject to the final conclusion, few of the grounds are as follows.-

(i) When law presumes the accused to be innocent until

proven guilty, and the minimum sentence is specified,
then the term "punishable" can be related to the
minimum sentence. In this context, the expression
"punishable" may imply a minimum threshold of
punishment, rather than the maximum. It is a way of
acknowledging the accused's presumed innocence
while still holding him accountable for the offense if
found guilty.

(ii) In criminal law, statutes are often interpreted in favor

of the accused. This means that any ambiguity in the
law should be resolved in a way that benefits the
accused. In this case, interpreting "punishable" to
mean the minimum sentence is more favorable to the
accused than interpreting it to mean the maximum
sentence. The legislative intent behind prohibiting bail
for offenses punishable by ten years and more may
be to ensure that serious offenses are not taken
lightly. However, this intent should not override the
presumption of innocence and the principle of
interpreting statutes in favor of the accused.

(iii) Interpreting the expression "punishable" to mean the

minimum sentence ensures consistency with right of
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Crl. Misc. No.431-B/2024

accused to principles of fair trial and due process. It

may ensure that the accused is not denied bail
without a fair trial and that their rights are protected
throughout the criminal proceedings.

12. Let us now put the above arguments in juxtaposition to

section 497(1) Cr.P.C. It provides that (i) when a person accused of
nonbailable offence is arrested; he may be released on bail, (ii) but
shall not be so released if there appear reasonable grounds for
believing that he has been guilty of an offence punishable with death
or imprisonment for life or imprisonment for ten years. If the case of
an accused falls within the ambit of first category, then grant of bail is
a rule and refusal an exception. However, if it is hit by the second
category, then there is statutory prohibition on grant of bail. Now if
we interpret the expression “punishable” to mean the minimum
punishment provided for an offence so as to favour of the accused due
to his presumed innocence at bail stage, then it will render the first
category of section 497(1) Cr.P.C. as redundant in offences which only
provides for maximum punishment of imprisonment. To explain
further, if a penal provision makes an offence punishable to
imprisonment of twenty years without mentioning the minimum limit
or it provides an alternate penalty of fine, then such a case may never
attract the statutory prohibition, which interpretation would be against
the spirit of section 497(1) Cr.P.C. Thus the above interpretation
would circumvent the statutory prohibition contained in section 497(1)
Cr.P.C. The above arguments, therefore, cannot stand in conjunction
with the basic provision of law governing bail.

13. The above discussion leads us to conclude that the

expression “punishable” used in section 497(1) Cr.P.C. refers to the
maximum punishment provided for an offence. Thus if an offence is
punishable by ten years or more, then subject to other legal grounds,
the same would attract statutory prohibition contained in section
497(1) Cr.P.C.
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Crl. Misc. No.431-B/2024

14. Now we shall advert to the second question i.e. what

weight of a contraband, where such contraband is heroin, qualifies as
a borderline case, which, in the absence of any other grounds for bail,
would suffice to make the case one of further inquiry on the basis of
doubt as to whether such case attracts the statutory prohibition of
section 497(1) of Cr.P.C or not?

15. Section 497(1) Cr.P.C. has to be read with section 51 of

the Act of 1997, which lays down guidelines for grant of bail in
narcotics cases. Sub-section (1) of section 51 of the Act of 1997
provides that notwithstanding anything contained in sections 496 and
497 of the Cr.P.C. bail shall not be granted to an accused person
charged with an offence under the Act of 1997 or under any other law
relating to narcotics where the offence is punishable with “death”. Sub
section (2) provides that in the case of other offences punishable
under the Act of 1997, bail shall not be normally granted unless the
Court is of the opinion that it is a fit case for the grant of bail and
against the security of a substantial amount. Section 9 of the Act of
1997 has been substituted through section 6 of the Control of Narcotic
Substances (Amendment) Act, 2022, through which the capital
punishment of “death” provided in the erstwhile provisions i.e. section
9(c) of the Act of 1997 (since substituted) has been omitted. Section
51(1) of the Act of 1997 has, therefore, been rendered redundant by
legislature as it prohibited grant of bail in an offence entailing death
penalty, which penalty no longer exists in the Act of 1997 and is no
more relevant as no corresponding amendments have been made.
Whereas, sub section (2) of section 51 of the Act of 1997 lays down
two guidelines for grant of bail in offences under the Act of 1997 viz,
(i) when it is a fit case for grant of bail and (ii) against the security of
substantial amount.

16. The Supreme Court in Tariq Bashir’s case supra has held
that as regards the first category of offences (punishable with death,
or imprisonment for life, or with ten years' imprisonment) the
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Crl. Misc. No.431-B/2024

provisions of section 497(1) are not punitive in nature. There is no

concept of punishment before judgment in the criminal law of the
land. The question of grant/refusal of bail is to be determined
judiciously having regard to the facts and circumstances of each case.
Where the prosecution satisfies the Court, that there are reasonable
grounds to believe that the accused has committed the crime falling in
the first category the Court must refuse bail. On the other hand where
the accused satisfies the Court that there are not reasonable grounds
to believe that he is guilty of such offence, then the Court must
release him on bail. For arriving at the conclusion as to whether or not
there are reasonable grounds to believe that the accused is guilty of
offence punishable with death, imprisonment for life or with ten years'
imprisonment, the Court will not conduct a preliminary trial/inquiry
but will only make tentative assessment, i.e. will look at the material
collected by the police for and against the accused and be prima facie
satisfied that some tangible evidence can be offered which, if left
unrebutted, may lead to the inference of guilt. Deeper appreciation of
the evidence and circumstances appearing in the case is neither
desirable nor permissible at bail stage. So, the Court will not minutely
examine the merits of the case or plea of defence at that stage.

17. Similarly, in the Supreme Court in Abdul Malik’s 14 case,

has explained the expression “reasonable grounds” used in section
497(1) Cr.P.C. as follows.-

"Reasonable grounds" is an expression which connotes

that the grounds be such as would appeal to a reasonable
man for connecting the accused with the crime with which
he is charged, "grounds" being a word of higher import
than "suspicion". However, strong a suspicion may be it
would not take the place of reasonable grounds. Grounds
will have to be tested by reason for their acceptance or
rejection. The reasonableness of the grounds has to be

14
Abdul Malik v. The State (PLD 1968 SC 349)
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Crl. Misc. No.431-B/2024

shown by the prosecution by displaying its cards to the

Court, as it may possess or is expecting to possess as
demonstrating evidence available in the case both direct
and circumstantial.

18. Furthermore, the Supreme Court in Muhammad

Nadeem’s 15 case, explained the expression “further inquiry” used
section 497(2) Cr.P.C. as follow.-

“The case of further inquiry pre-supposes the tentative

assessment which may create doubt with respect to the
involvement of accused in the crime. It is well settled that
the object of a trial is to make an accused face the trial,
and not to punish an under trial prisoner. The basic idea is
to enable the accused to answer criminal prosecution
against him rather than let him rot behind bars. The
accused is entitled to expeditious access to justice, which
includes a right to a fair and expeditious trial without any
unreasonable and inordinate delay. In the case of
Zaigham Ashraf v. State and others (2016 SCMR 18), this
Court held that the words "reasonable grounds" as
contained in Section 497, Cr.P.C., required the
prosecution to show to the court that it was in possession
of sufficient material/ evidence, constituting 'reasonable
grounds' that accused had committed an offence falling
within the prohibitory limb of Section 497, Cr.P.C. For
getting the relief of bail accused only had to show that the
evidence/material collected by the prosecution and/or the
defence plea taken by him created reasonable
doubt/suspicion in the prosecution case and he was
entitled to avail the benefit of it.”

15
Muhammad Nadeem v. The State and another (2023 SCMR 184)
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Crl. Misc. No.431-B/2024

19. The expression “fit case for the grant of bail” used in
section 51(2) of the Act of 1997 has to be interpreted in light of the
provisions of section 497 Cr.P.C., inter alia, the words “reasonable
grounds”, “further inquiry” and “statutory period”, etc. The Supreme
Court in Amir Faraz’s16 case has observed that it is settled law that in
criminal matters, each case has its own peculiar facts and
circumstances and the same has to be decided on its own facts. The
decision whether to grant or refuse bail, depends upon multiple
factors, even if the alleged offence is hit by the prohibitory clause of
section 497(1) Cr.P.C. All those factors can be considered collectively
as well as in isolation so as to reach a just conclusion. The question of
bail is directly linked to right of liberty of an individual, who, unless
found guilty on conclusion of trial, has to be considered innocent.
Therefore, a slightest dent, visible on tentative assessment of material
available on record, in the prosecution’s case, would entitle the
accused to grant of bail, even if the offence alleged to have been
committed is hit by the prohibitory clause. The prohibition on grant of
bail in section 497(1) Cr.P.C. is not absolute, rather dependent on
satisfaction of the Court to believe that reasonable grounds exists that
the accused is connected with the commission of offence. No hard and
fast rule can be laid down to regulate discretion of the Court relating
to its satisfaction for grant/refusal of bail. The Court may take into
account all the grounds collectively or any one of them in view of the
peculiar facts and circumstances of the case and grant or refuse bail.
17
In Manzoor’s case, the Supreme Court has laid down the golden
principle relating to bail. In the referred case it was held that “It is to
remember that bail is not be withheld as a punishment. There is no
legal or moral compulsion to keep people in jail merely on the
allegations that they have committed offences punishable with death
or transportation, unless reasonable grounds appear to exist to
disclose their complicity. The ultimate conviction and incarceration of
a guilty person can repair the wrong caused by a mistaken relief of

16
Amir Faraz v. The State (2023 SCMR 308)
17
Manzoor and 4 others v. The State (PLD 1972 SC 81)
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Crl. Misc. No.431-B/2024

interim bail granted to him, but no satisfactory reparation can be

offered to an innocent man for his unjustified incarceration at any
stage of the case albeit his acquittal in the long run.

20. Having concluded that bail in criminal cases registered

under the Act of 1997 has to be decided in light of section 51(1) of the
Act of 1997 read with section 497 Cr.P.C., it is held that if a provision
of the Act of 1997 provides for maximum punishment of ten years and
more, it shall attract the prohibitory clause of section 497(1) Cr.P.C.
The applicability of the term “borderline case” developed in the
context of erstwhile provisions of the Act of 1997 i.e. section 9(c),
would amount to anticipating possible period of conviction at bail
stage, which exercise is not permissible while making tentative
assessment of a criminal case at bail stage. This, however, shall not
bar the Court adjudicating a bail petition to decide the same in light of
peculiar facts and circumstances of a particular case.

21. We had appointed Mr Tanveer Ahmed Khan, Incharge

Federal Narcotics Testing Laboratory, Islamabad to assist us on the
point of variance in weight of recovered narcotic substance due to the
packing/wrapping material particularly when it is packed in capsules.
The learned amicus appeared and explained to us the question in
detail. He also submitted his written report, the relevant portion
whereof is as follows.-

“It is submitted that these handmade capsules have

various sizes and quantity of packing material also
varies with each capsule. However, the weight of
packing material up to 15% of total weight of a
capsule has been observed in our current laboratory
practices.”

He, however, submitted that since the whole quantity of

recovered contraband is kept by the police in safe custody and only a
representative sample is sent to the Laboratory for chemical analysis,
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Crl. Misc. No.431-B/2024

therefore, he is unable explain the average weight of other wrapping

materials i.e. solution tape, plastic shopping bag, etc.

22. During the proceedings, certain queries were put18 to the

prosecution, regarding the quality, mechanism and procedure of
investigation in narcotics cases and the Inspector General of Police
and Director General, Anti-Narcotics Force were directed to submit
reports. Accordingly they submitted their respective reports. The
Islamabad Police in its written report has submitted that (i) in most of
the cases, the accused person discloses that narcotic substance was
brought from “illaqa ghair”, where access is not possible due to lack of
resources, (ii) due to insufficient funds and time, narcotic source is
only traced if it is located in Islamabad or adjacent cities, (iii) till date
no investigations are carried out to trace the assets derived out of the
illicit drug dealing; (iv) courts normally grant two/three days physical
remand of the accused for the purpose of investigation. The report
submitted by the Anti-Narcotics Force reveals that, (i) during the
period from April 2022 – April 2024, multiple assets inquiries were
conducted and assets worth Rs.210,246,705/- (approximately) were
traced and submitted before the court for proceedings in accordance
with law, (ii) ANF is performing duties with limited resources and
manpower, (iii) out of 977 registered criminal cases, in 932 cases
physical remand for 01 day, in 41 cases 2 to 3 days and only in 04
cases more than three days physical remand has been granted by the
courts for the purposes of investigation, (iv) in the two years’ period
sixty one inquiries were initiated against delinquent investigators.

23. The reports submitted by the two investigating agencies

shows that criminal cases relating to narcotics are not being
investigated according to the spirit of the Act of 1997. As a result of
such faulty investigations, the society shall suffer as it is exposed to
risk of narcotics/drugs abuse. Not investigating the main
culprits/sources of narcotic substance in a criminal case amounts to

18
Vide order, dated 09.05.2024 in Crl. Misc. No.431-B/2024
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Crl. Misc. No.431-B/2024

granting them licence to violate the Act of 1997 and cause irreparable
damage to the society.

24. The Act of 1997 has been enacted to prohibit possession of

narcotic substances and rehabilitate victims of drug abuse. To ensure
strict adherence to the provisions of the Act of 1997, penalties have
been provided under section 9 thereof. In order to ensure that no one
indulges in the dealing and trafficking of narcotic substances in
violation of the Act of 1997, the profit derived and properties acquired
out of such profit have been declared as liable to confiscation. How can
this goal be achieved? Will the State establish separate entities to
enforce each provision of the Act of 1997 and let the police/ANF
proceed with investigations of narcotics cases without due adherence
to provisions of the Act of 1997?

25. When a criminal case is registered on the allegation of

possession of narcotic substance, the accused is normally arrested at
the spot. Then the line of investigation (without prejudice to the Act of
1997 and the rules made thereunder) should be.-

(i). to investigate from whom the recovered narcotic

substance was received/purchased by accused;

(ii). to whom the delivery of narcotic substance was

intended;

(iii). to investigate the purpose/ultimate utilization for

the recovered narcotic substance;

(iv). to trace the drug abusers (for their rehabilitation);

(v). who are deriving financial benefits and the

use/purpose of the derived finance/ assets;

(vi). who are the persons engaged in the business in

contravention of the Act of 1997 (starting from
cultivator/ manufacturer to the end abuser);
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Crl. Misc. No.431-B/2024

(vii). and which are the assets derived by persons

engaged in dealing with narcotics.

26. The Act of 1997 provides for a comprehensive mechanism

to deal with narcotics cases so as to curb the menace of drug abuse,
which in fact is a great threat to the society and adversely affecting
citizens. It is mandatory for the Investigating Agencies to conduct
investigations on true lines in accordance with the spirit of the Act of
1997. Sections 6, 7 and 8 of the Act of 1997 prohibit possession of
narcotic drugs, its import, export and trafficking or financing the
trafficking of narcotic drugs. Section 8(a) provides that no one shall
organize, manage, traffic in or finance the import, transport,
manufacturing or trafficking of narcotic drugs, psychotropic substances
or controlled substances. Section 14 of the Act provides that no one
shall, within or outside Pakistan, participate in, associate or conspire to
an offence punishable under the Act of 1997.

27. Chapter IV of the Act of 1997 deals with freezing and

forfeiture of assets. Section 37 empowers the Court and appropriate
officers to order freezing of assets. Section 38 empowers the
investigating agency to trace and identify assets acquired through illicit
involvement in narcotics. Section 39 provides that after the accused is
convicted of an offence under the Act of 1997, on request of the
investigating agency, the Court is empowered to order forfeiture of
assets of the convict, or as the case may be, his associates, relatives
or any other person holding or possessing assets on behalf of the
convict. It is also pertinent to refer to section 42 of the Act of 1997,
which makes the acquisition of assets, frozen under the provisions ibid,
punishable with imprisonment for a term which may extend to three
years and with fine.

28. Section 49A (Remand) has been inserted through section

19 of Control of Narcotic Substances (Amendment) Act, 2022 in the
Act of 1997, which provides that a person arrested for breach of the
provisions thereof shall, having regard to the facts and circumstances
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of the case, be liable to be detained in custody for the purpose of

inquiry or investigation not exceeding “ninety days”. The Magistrate
while dealing with the request for remand of the accused submitted by
the investigating officer is, therefore, bound to consider such request
keeping in view the scope of investigations provided under the Act of
1997. It is generally understood that after recovery of narcotic
substance further physical remand would be futile. Such concept is
violative of the basic spirit of the Act of 1997. Curbing the menace of
drug/narcotic abuse is not an easy task; rather the same would require
restless efforts of every stakeholder in the criminal justice system. One
case of narcotic substance, if investigated in the manner in which the
Act of 1997 is structured, would bring to justice the whole chain i.e.
cultivator/manufacturer, peddler, seller and drug abuser and would
serve as deterrent factor in the society. The manner in which narcotics
cases are being investigated favours the real culprits. The drug
peddlers are caught and sent to jail. Nobody dares to investigate the
giants who derive profits out of such illicit drug/narcotic deals. Their
assets are never investigated. The two ends i.e. drug dealer, cultivator,
manufacturer and the drug/narcotic abusers are never held
accountable. This would never have been intention of the legislature
while enacting the Act of 1997. Investigating the assets (derived from
the proceeds of illicit drug dealing) of persons involved in narcotics
cases is mandatory for making a request to the Court by the
investigating agency for confiscation/forfeiture of the same. It is,
therefore, not the discretion but a bounden duty of the investigating
agency to investigate complete chain in the commission of offence and
trace the assets derived out of such illicit trade.

29. For what has been discussed above, it is held and declared
as follows.-

(a) The expression “punishable” used in section

497(1) Cr.P.C. refers to the maximum
punishment provided for an offence. Thus if an
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offence is punishable by ten years or more, then

subject to other legal grounds, the same would
attract statutory prohibition contained in section
497(1) Cr.P.C.

(b) It is held that if a provision of the Act of 1997

provides for maximum punishment of ten years
and more, it shall attract the prohibitory clause
of section 497(1) Cr.P.C. The applicability of the
term “borderline case” developed in the context
of erstwhile provisions of the Act of 1997 i.e.
section 9(c), would amount to anticipating
possible period of conviction at bail stage, which
exercise is not permissible while making
tentative assessment of a criminal case at bail
stage. This, however, shall not bar the Court
adjudicating a bail petition to decide the same in
light of peculiar facts and circumstances of a
particular case.

(c) After insertion of section 49A in the Act of 1997,

the maximum period of remand is ninety days.
As highlighted above, the investigation in
narcotics cases is not limited to mere recovery of
narcotic substance from the peddler but extends
to the source, manufacturer, cultivator, seller,
dealer, etc. The Magistrate while dealing with
the request of remand shall give due
consideration to facts and circumstances of the
case and the scheme of the Act of 1997 and
grant physical remand of the accused for a
reasonable period.
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Crl. Misc. No.431-B/2024

(d) Investigating the complete chain in commission

of offence (including source of supply) under the
Act of 1997 and trace the assets derived out of
such illicit trade/dealing is the duty of the
investigating agency and not discretion. The
investigating officer shall, therefore, investigate
all persons and trace their assets involved in the
commission of offence under Act of 1997.

(e) We have been informed that after filing of the

instant bail petitions, trials in the main cases
were transferred to competent courts at
Rawalpindi, therefore, the petitioners may
approach the relevant forum vested with
jurisdiction. The petitions stand accordingly
disposed-of.

30. Office is directed to transmit copy of this order to the

Director General, Anti-Narcotics Force, Inspector General of
Police, ICT, Advocate General, ICT, Prosecutor General, ICT,
Special Courts (CNS) and the Sessions Judges (East and West
Divisions), Islamabad for information, compliance and
circulation to all the Judicial Officers.

(ARBAB MUHAMMAD TAHIR)

JUDGE
(TARIQ MEHMOOD JEHANGIRI)
JUDGE
(BABAR SATTAR)
JUDGE
Announced in the open Court on _____________

JUDGE JUDGE JUDGE

Approved for reporting.

Luqman Khan/*