Mohsin Akhtar Kayani, J. By way of this common judgment we intend to decide both the captioned Criminal Appeals and Jail Appeals having common question of law and facts. The appellants have assailed judgment dated 16.09.2023, passed by learned Judge Special Court (CNS), Islamabad, in F.I.R No. 138 dated 17.10.2022, registered under Sections 9(1)6(b), 15, 9(1), 3(c) of CNSA, 1997, registered at police station ANF, Islamabad, whereby, the appellant Saba Gul was found guilty of offence under Section 9(1)6(b), 9(1)3(c) of CNSA, 1997 for keeping in her possession 1200 grams of charas and heroin weighing 400 grams, and convicted and sentence to R.I for 09 years, with fine of Rs. 80,000/-. In default in payment of fine, she shall further undergo 05 months Simple Imprisonment. The appellant Saba Gul has further been convicted under Section 9(1), 6(b) of CNSA, 1997, for keeping in her possession 400 grams of heroin and sentenced to R.I for 07 years, within fine of Rs. 25,000/-. In default in payment of fine, she shall further undergo 04 months simple imprisonment. The other accused Mst. Shazia has also been convicted for offence under Section 9(1)3(c) of CNSA, 1997, for keeping in her possession charas weighing 2400 grams and sentenced to R.I for 09 years with fine of Rs. 80,000/-. In default in payment of fine she shall further undergo 05 months simple imprisonment. The benefit of Section 382-B, Cr.P.C. has been extended in favor of both the appellants.
2. Brief facts referred in these appeals are that complaint Exh.PA has been lodged by Munazza Kausar S.I/PW.4 which has been converted into FIR No. 138 dated 17.10.2022, under Sections 9(1)6(b), 15, 9(1),3(c) of CNSA, 1997, registered at police station ANF, Islamabad, with the allegation that on 17.10.2022, she alongwith lady constable Shagufta Tabassum/PW.5, Farhat Zulfiqar Driver/PW.6 and Danyal Haider Constable on their official vehicle were present at Chungi No. 26 at about 12:15 hours for routine checking of narcotics when information was received qua transportation of huge quantity of narcotics by two ladies namely Shazia and Saba, who were standing near Sangjani Toll plaza. On receiving the spy information Munazza Kausar S.I/PW.4, Constable Shagufta Tabassum/PW.5 and Farhat Zulfiqar Driver/PW.6, reached at the notified place and upon pointation of the informer both the ladies were overpowered who were identified as Shazia and Saba Gul, who further disclosed the presence of narcotics and after some hesitation recovered narcotics, whereby, Mst. Shazia brought out 02 packets, wrapped in yellow insulation tape each from her right and left dub of worn shalwar, weighing 2400 grams of chars. After obtaining sample parcels remaining case property referred as Exh.P.1, was taken into possession through recovery memo Exh.PC. The second accused Saba Gul herself brought 02 packets, wrapped in yellow insulation tape, 01 packet each from her right and left dub of shalwar and handed over to the Investigation Officer in presence of the witnesses. On opening and checking with the help of cutter, chars packed in polythene bag was found in 01 packet weighing 1200 grams, whereas, from the other packet 400 grams of heroin was found. Separate sample parcels were prepared through seal "MK" and remaining case property was sealed in packet. The case property of charas referred as Exh.P.02, and heroin as Exh.P.03, were taken into possession through recovery memo Exh.PD, in presence of the witnesses. During the course of search of appellant/Shazia, Nokia Mobile Exh.P.4, Pakistani Currency of Rs. 750/-Exh.P.5 were recovered which were taken into possession through Exh.PE. From the personal search of appellant/Saba Gul Nokia Mobile Exh.P.6, Pakistani Currency of Rs. 600 Exh.P.7 were recovered which were taken into possession vide recovery memo Exh.PF, witnessed by Constable Shagufta Tabassum/PW.5. The complaint was drafted by the PW.04/Munazza Kausar S.I and sent to police station for registration of FIR through Constable/Driver Farhat Zulfiqar/PW.6.The site plan Exh.PG was prepared by the Investigation Officer at spot. The I.O recorded statement of the witnesses under Section 161, Cr.P.C. and upon reaching to the police station she handed over the ;ample parcels, the remaining contraband as well as personal search items of both the appellants to the moharrar mall khana namely Bilal her ASI/PW.2. The sample parcels were transmitted to NIH through Constable Arslan Akbar/PW.3, who deposited the same to NIH aftar receiving the same from moharrar mall khana. The NIH through its analysis agency report Exh.PH to Exh.PL, declared sample parcels as chars and heroin. The final challan under Section 173, Cr.P.C. has been submitted in the Court. The appellants have been charged vide order dated 01.12.2022, which they denied and pleaded not guilty, consequently the trial Court recorded statement of 06 prosecution witnesses as well as statement of appellants under Section 342, Cr.P.C. and convicted the appellants accordingly, hence, these appeals.
3. Learned counsel for the appellants contend that as per prosecution story the contraband from both the appellants have been recovered from their left and right dub of shalwar, but during the course of cross-examination the case property has been brought on record through black colour shoulder bag which is entirely different from the prosecution case and confirmed in the testimony of PW.04/Munazza Kausar S.I; that there is a material difference in evidence of the witnesses which create a doubt in favour of the appellants who could not be convicted by any stretch of imagination.
4. Conversely, learned Special Prosecutor ANF have been confronted to this technical aspect notified by the counsel for the appellants in the testimony of PW.04/Munazza Kausar on record, who cleared the doubt raised in this case.
5. Arguments heard and record perused.
6. Perusal of record reveals that both the appellants have been arrested while in possession of chars and heroin separately, which have been recovered on their disclosure from their personal search present in dub of shalwar worn by them which is evident from the criminal complaint Exh.PA, as well as from the recovery memo Exh.PC, Exh.PD and Exh.PE, respectively, whereby it has specifically been written that which contain 2400 grams of chars to the extent of accused Shazia and similarly to the extent of accused Saba Gul 1200 grams of charas and 400 grams of heroin in separate packets have been recovered from her as referred in Exh.PD and same stance has been reiterated by Munazza Kausar S.I/PW.4 and Constable Shagufta Tabassum/PW.5 the other recovery witness of the recovery memo, but the I.O and complainant Munazza Kausar S.I in her cross examination acknowledged the following: "The case property is present before the Court today. It is correct that the parcels of case property are contained/lying in a black shoulder bag at the moment for producing before the Court, the size of the shoulder bag is approximately 1ft x 2. It is correct that the stated black shoulder bag have pockets over it."
7. Learned counsel for the appellants claims that the above referred admission creates a doubt in the entire prosecution case to the extent of recovery as the narcotics have been brought in shoulder bag of black color which has not been exhibited in this case, nor earlier produced by the I.O and entire case has been made on the basis of recovery from worn by the appellants which is actual case of the prosecution. No doubt PW.4/Munazza Kausar S.I and PW.5/Shagufta Tabbassum Constable made their statement in line with the facts narrated in Exh.PA/complaint as well as in the recovery memo Exh.PC, Exh.PD and Exh.PE, respectively. There is no difference qua mode, manner, date and time of recovery, even place of the recovery where no such black shoulder bag was introduced by the prosecution. We are mindful of the fact that the case property has been brought to the trial Court through black shoulder bag for carrying purposes and it is not the prosecution case that the original recovery has been made from the said shoulder bag, even no further question was put to the star eye witnesses PW.4/Munazza Kausar S.I and PW.5/Constable Shagufta Tabbassum for the purpose to suggest that the recoveries have been effected from black shoulder bag which has not been made part of the record, therefore, the argument rendered by the appellants' counsel to convince this Court to believe on the above mentioned part of cross-examination seems to be on a different pretext. We have gone through entire testimony of witnesses PW.4/Munazza Kausar S.I and PW.5/Constable Shagufta Tabbassum, where it has been proved that there is no slightest doubt or improvement or difference among the testimony of these star witnesses, therefore, it is settled law that when the eye witnesses are unison on all material points the minor contradiction could be over looked. The Moharrar mall khana Bilal Sher ASI/PW.2 received the sample parcels as well as remaining case property and personal belongings of the appellants and recorded the same in register No. 19 to keep items in safe custody of the mall khana on the very date of occurrence. On 18.10.2022, Constable ArsIan Akbar/PW.3 came to Moharrar mall khana alongwith application Urdu, docket English including sample seal and asked for sample parcels of this case for onward transmission to NIH and deposited the samples on 18.10.2022 which has further been corroborated with the certificates Exh.PH, Exh.PJ, Exh.PK and Exh.PL, which have been identified as chars and heroin, respectively.
8. While considering the above documents we are in agreement that the prosecution's efforts prove the safe custody and transmission of the recovered contraband, whereafter, results of the chemical analyst confirmed recovered contraband as charas and heroin. Despite the lengthy cross-examination by the appellants' side no material contradiction has been achieved among1/2 1/2 the statement of the witnesses except the one important element in which PW.5/Shagufta Tabassum star witness acknowledged that "no video was recorded by anybody of the recovery proceedings at the spot", though this Court has already passed direction to the ANF authorities for recording of video evidence which is a key factor to be considered to demonstrate that recoveries have been effected in proper manner and allegation of false implication could be ruled out.
9. The appellants have recorded their statement under Section 342, Cr.P.C. in detail in which both the appellants Shazia and Saba Gul have denied their involvement as reflected from their answer to question No. 10, but surprisingly, no plausible justification has been rendered on record to convince this Court that the conviction has been made contrary to the settled principles of law. The testimony of ANF officials is as good as any other private witness unless it is proved that they have animus against the accused as held in 2022 SCMR 905 (Faisal Shahzad vs The State), though the said principle was settled primarily on the reason that general public is reluctant to become witness in such type of cases and this fact has become judicially recognized fact and there is no impediment to consider statement of official witnesses, as no legal bar or restriction has been imposed in this regard and it has been highlighted in Faisal Shahzad case (supra) that the police officials are as good witnesses and can be relied upon, if their testimonies remain un-shattered during the course of cross-examination.
10. While considering the pro and contra arguments, an important aspect has been highlighted with reference to cases where contraband has been recovered from In such eventuality it is incumbent upon the prosecution to establish that accused has been wearing a " and recovery memo to that extent has to be made. Similarly we have noticed that the I/O has not placed copy of Register No. 19 as part of challan under Section 173, Cr.P.C. which should be the part of final report to demonstrate that all the recovered articles have been recorded in Register No. 19 for safe custody in every case. Likewise in majority of the cases of narcotics the defence side took plea that accused were not present at the place of occurrence as alleged in complaint or in the statement of Investigation Officers and for this matter they have requested the I.O to produce the call date record, especially, with reference to the mobile phone of the accused, however, no such document has been produced. At last the police and ANF authorities were directed to secure the recovery proceedings in video camera and in case the same has not been observed it will cast serious doubts upon the veracity of the entire proceedings conducted by the Investigation Officers, therefore, in order to secure the conviction every such recovery has to be recorded to play before the trial Court or for that matter in appeal before the appellate Court to create perception that every proceedings have been conducted in transparent manner. In this regard we have also been guided with the best international practices as well as recent SOP's notified by the ANF authorities in which it is a mandatory procedural practice: The Supreme Court in Crl. Petition No. 1192 of 2023 titled Zahid Sarfaraz Gill vs. The State and the High Court in the judgment reported as 2023 YLR [Sindh] 242 (Ayaz Hussain vs The State) had also put emphasis on these aspects.
11. In view of above reasons we are now convinced that in every case of narcotics registered either by ANF Authorities or by the police officials following parameters should have been observed: i. The I.O must append the copy of Register No. 19 of Moharrar mall khana with final report under Section 173, Cr.P.C. to demonstrate that all the recoveries have been recorded in the Register No. 19 as per law. ii. The I.O must produce his CDR alongwith the final report under Section 173, Cr.P.C. as well as the CDR of the recovered mobile phone of the accused persons to confirm that the place of recovery is in line with the prosecution case. iii. Every recovery of narcotics is to be recorded in the body-cam (if not given by the police authorities or by the ANF authorities), then same should be recorded in the personal mobile phone of the I.O or the recovery witness at the place of occurrence, as the case may be. iv. The CCTV footage of recovery should be part and parcel of the final report under Section 173, Cr.P.C. v. The trial Court should play the CCTV footage in the Court in statement of I.O or the witnesses who recorded the same and observe its satisfaction in the final judgment. vi. In case where contraband/psychotropic substance or narcotics have been recovered from dub of the shalwar or from kameez of the accused then there must be some evidence that such article has been taker into possession.
12. Now adverting towards the sentence awarded to the appellants which is based upon the following parameters provided in the table of Section 9 of the CNSA, 1997: S. No.Offence Punishment Type of NarcoticsQuantity
(1) (2) (3)
3 Charas (a) ......... .........
(b) ......... .........
(c) 1000 grams to 4999 grams.imprisonment which may extend to fourteen years but shall not be less than nine years along-with fine which may be up to four hundred thousand rupees but not less than eighty thousand rupees.
6 Heroin and morphine(a) ......... (d) 100 gram to 499 gram imprisonment which may extend to ten years but shall not be less than seven years along-with fine which may be up to one hundred and twenty- five thousand rupees but not less than twenty five thousand rupees
13. We have attended the sentence period settled by the legislature and could not grasp the wisdom, especially, in the case where 1200 grams of charas was recovered from appellant Saba Gul alongwith 400 grams of heroin, but the category in the relevant column is ranging from 1000 to 4999 grams of chars and the minimum sentence is notified as 09 years alongwith fine where legislature has used phrase "but shall not be less than" such a phrase put a clog on the trial Court's discretion to go beyond the minimum sentence of 09 years. Therefore, the restriction by using the phrase "shall not less than" is without any logical justification. For instance, if 1001 grams of charas is recovered from one accused, he or she will be convicted for minimum of 09 years and the same is applicable to a case of recovery of 4999 grams of chars (and everything in between) which is inconvincible as how legislature reached to this analogy of range the sentencing of 09 years to 14 years for 1000 grams to 4999 grams of chars. Such aspect has to be seen in line with other jurisdictions in the countries like USA, UK, Europe and India, etc.
14. With the increased crime rate the need to curb these situations has also evolved with time, not just in Pakistan but also around the world. The laws governing the criminal justice system in Pakistan are mainly, Pakistan Penal Code, Qanoon-e-Shahadat Order, and Code of criminal Procedure. Yet these are not feasible and have their limitations while awarding sentence to convicts in their corresponding cases. Like UK and USA, we also need a "Sentencing Guidelines" policy for the assistance of judges while determining the quantum of punishment to award a sentence. These guidelines are adopted to create uniformity in awarding a sentence in the similar nature of cases. Sentencing policy guidelines assist judges while determining sentence by staying between the maximum and mandatory minimum punishment described in the applicable statute.
Courts enjoy their discretion by staying between the maximum and minimum punishments.
However, this generates an inconsistency in awarding punishments because every judge has their own understanding, reasoning and philosophy which hinders generating a uniformity.
15. The Federal Sentencing Guidelines of the USA are a good example in this regard. These guidelines were prepared in 1987. They take into account both the seriousness of the offense and the offender as criminal history. In these guidelines, offences are divided into 43 levels based on their seriousness. The higher the level, the higher the seriousness of crime. Moreover, every offence level is assigned a base offence level which determines the starting point of seriousness of crime.
For instance, base level for homicide is 43, kidnaping is 32, and of trespass is 4. (All these base offence levels are defined in the sentencing guidelines with a special chart.) In addition to these base offence levels there are other factors that increase or decrease the base offence level. These guidelines under chapter 3 assist judges to make "Adjustments" while determining the sentence by keeping in mind the: I. Victim-related adjustments (hate-crime motivation, victim restraint etc.)
II. Role in the offence (aggravating circumstances, mitigating role, abuse of position of trust, etc.)
III. Obstruction related adjustments (obstructing dispensation of justice, committing crime on release, IV. Multiple counts (when convicted for multiple counts, closely related counts, determining combined offence level etc.)
V. And acceptance of responsibility.
16. In addition to above, the criminal history points are also kept in mind. The guidelines assigned each offender into one to six criminal history categories. Criminal History Category I is the least serious category and includes many first-time offenders. Criminal History Category VI is the most serious category and includes offenders with serious criminal records.
17. For the sake of understanding an excerpt from "sentencing table" from the US Federal Sentencing guidelines is reproduced as under. It gives imprisonment in months. The final offense level is determined by taking the base offense level and then adding or subtracting from it any specific offense characteristics and adjustments that apply. In the given below extract, an offender with a criminal history category II having 2 to 3 criminal points with offence level 3 will serve 0 to 6 months.
Ch. 5 Pt. A
18. For some federal crimes, Congress establishes maximum penalties and mandatory minimum penalties that form the outer bounds of permissible federal criminal sentences. Between these statutory limits are the U.S. Sentencing Guidelines. These guidelines are just for the assistance of judges, and not binding on them to follow them rigorously, but if the judge departs from these guidelines, they have to give their reasoning in the judgment for this departure.
19. Despite their existence, the mandatory minimum sentences (MMS) are not always mandatory.
The MMS requires the judges to impose the minimum sentence defined in the statute. For instance, the First Step Act, passed by Congress in 2018, authorizes federal judges to impose a sentence below a mandatory minimum for certain drug offenses. The act provides that a defendant is eligible for this "safety valve," or relief from the mandatory minimum, depending in relevant part on the defendant's criminal history. A drug offender is entitled to seek "safety valve" protection when--
(1) the defendant does not have-- a) more than four criminal history points, excluding any criminal history points resulting from a one-point offense, as determined under the Sentencing Guidelines; b) a prior three-point offense; and c) a prior two-point violent offense.
20. In the context of drug offenses, the mandatory minimums contribute to arbitrary outcomes. For instance, it points out the existence of a "cliff effect," where a small difference in the quantity of drugs involved can lead to significantly different sentences. The Justice Safety Valve Act of 2013 introduces a "safety valve" enabling judges to exempt and deviate from certain drug and other offenders from mandatory minimum sentences.
21. Thus, the urgent need for sentencing guidelines in Pakistan, particularly in drug-related cases, cannot be overstated. Currently, first-time offenders often face disproportionately harsh sentences due to the absence of judicial discretion and clear guidelines. The lack of flexibility in sentencing, aggravated by strict statutory penalties, creates a cliff effect where even minor offenses result in severe convictions. Implementing sentencing guidelines tailored to drug crimes would provide judges with the necessary framework to consider mitigating factors and individual circumstances, ensuring fairer and more proportionate outcomes. Additionally, introducing measures such as cliff- effect relief, safety valve relief, necessary adjustments, criminal history etc. would offer relief to non-violent offenders facing overly harsh statutory penalties. In essence, the establishment of drug-specific sentencing guidelines is imperative to address the glaring disparities and promote fairness within Pakistan's legal system.
22. In the exercise of judicial discretion, Courts must recognize their role in sentencing, including the potential departure from mandatory minimum statutory sentences (MMS) in appropriate cases, ensuring a just and equitable outcome. Indian Courts, while strictly adhering to legislative mandates, have gained valuable insights from foreign judgments regarding the imposition of MMS.
23. For instance, in Mohd. Hasim vs. State of Uttar Pradesh and others (2017) 2 SCC 198[1] the Indian Supreme Court placed reliance on the authorities like Arvind Mohan Sinha (1974) 4 SCC 222 and Ratan Lal Arora (2004) 4 SCC 590) and contended that "when the legislature has prescribed minimum sentence without discretion, the same cannot be reduced by the Courts. In such cases, imposition of minimum sentence, be it imprisonment or fine, is mandatory and leaves no discretion to the Court. However, sometimes the legislation prescribes a minimum sentence but grants discretion and the Courts, for reasons to be recorded in writing, may award a lower sentence or not award a sentence of imprisonment.... which must be imposed without leaving any discretion to the Court. If the sentence can be reduced to nil, then the statute does not prescribe a minimum sentence".
24. Similarly, in Harendra Nath Chakraborty vs. State of West Bengal (2009) 2 SCC 758[2]the Parliament has provided for a minimum sentence for which Court exerted that "In India, we do not have any statutory sentencing policy as has been noticed by this Court in State of Punjab vs. Prem Sager & Ors. [2008 (9) SCALE 590]. Ordinarily, the legislative sentencing policy as laid in some special Acts where the Parliamentary intent has been expressed in unequivocal terms should be applied. Sentence of less than the minimum period prescribed by the Parliament may be imposed only in exceptional cases"
25. Furthermore, while deciding the matter of Suman Gurung vs State of Sikkim Crl. A. No. 11 of 2021[3]the high Court held that the Hon'ble Supreme Court of India in a plethora of cases has laid down that the minimum sentence prescribed by the statute has to be imposed on the guilty and cannot be reduced. The high Court in the light of precedents held that the minimum sentence of imprisonment meted out by statute is awarded by the trial Court and restrained to interfere with the parliamentary intention.
26. On the contrary, several foreign jurisdictions have shown departure from that it is possible and useful to introduce exceptions to mandatory minimum penalties that are based on criteria that set a high threshold for any departure from the legislated mandatory minimum penalty. Such as in Dodo v S, (Buzani Dodo u The State (CCT1/01, [2001]), para. 37) (South Africa) based on the interpretation test specified in S v Malgas the Court explained that a sentence would be "cruel, inhuman or degrading" if its length was grossly disproportionate, but Court can impose a lesser sentence when "substantial and compelling circumstances" exist. Also, Canadian Supreme Court in R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773 explained that "Mandatory minimum sentences, by their very nature, have the potential to depart from the principle of proportionality in sentencing. They emphasize denunciation, general deterrence and retribution at the expense of what is a fit sentence for the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime. They function as a blunt instrument that may deprive Courts of the ability to tailor proportionate sentences at the lower end of a sentencing range". The UK Court took a similar view in R v Offen and Others [2001] 1 Cr App R 372, para. 16, that the mandatory minimum penalty could result in an arbitrary and disproportionate sentence if there was no possibility for the Court to consider "exceptional circumstances". Last but not least, USA has established sophisticated and detailed federal sentencing guidelines, empowering Courts with the authority to make adjustments when awarding punishments. Adjustments are made regarding victim's state of mind, its aggravating or mitigation role in offence etc. also, they place reliance religiously on criminal history.
27. Drawing from international jurisprudence, it is evident that their Courts have exercised discretion in narcotics cases to ensure that sentences align with principles of fairness, proportionality, and individualized justice.
28. Meanwhile, the concept of minimum statutory sentence is being followed in Pakistan rigorously, where Court has no discretion to exercise. Restraining ourselves here to the narcotics matter only bail is granted in cases of borderline cases, both in post and pre-amendment time. For reference see, Aye Khan and another v. The State (2020 SCMR 350 and Saeed Ahmed v. The State etc, (PLJ 2018 SC 812). It is pertinent to mention that before amendment in Naimatullah and another v.
The State (2017 MLD 1097) it was also held that recovery, of narcotic substance does not exceed the limit between 900 to 1500 grams the case is of borderline between clauses (b) and (c) of the Act of 1997. In a recent case, Muhammad Naseer versus the State (Criminal Misc. No. 1225-B of 2023) (citation yet awaited) the learned Division Bench of IHC granted bail because the case was of borderline case, moreover the petitioner was neither a previous convict nor retains any criminal record and is a first offender. The bench observed that individuals arrested in narcotics cases were mostly drug peddlers. Police procedures lacked interrogation about the origin, recipients, and financial beneficiaries of seized drugs. Limited investigations resulted in arrests only at the scene, neglecting the broader criminal network involved.
29. The Courts in Pakistan acknowledge the limitations of strict mandatory penalties, recognizing that they may lead to unjust or disproportionate sentences. In light of this, this Court advocates for a more nuanced approach to sentencing, taking into account factors such as the nature of the offense, the offender's background, and the interests of justice.
30. The realities of narcotics cases often reveal systemic issues such as incomplete investigations, procedural deficiencies, and legal challenges that can impact the fair application of mandatory minimum sentencing. The limitations of strict MMS regimes, particularly in cases where sentencing outcomes may be arbitrary, disproportionate, or unjust.
31. The recent amendment was introduced without keeping in context the demographics and circumstances of our society. It does not support meaningful sentencing policy of state. Legislature has ignored factors that can help the Court to make adjustments while granting the sentence.
Court has to be vigilant that the sentence awarded must not be disproportionate, arbitrary, or unjust. For that Court has to exercise its discretion because every case has different facts and circumstances. While setting sentencing guidelines, we need to encompass the following matters as well; i. Low-level and nonviolent drug crimes, keeping in view the quantum of drug, ii. First time offender, iii. Distinguish people who have no ties with large-scale organizations, gangs, or cartels, iv. Personal mitigation factors are to be reviewed, v. Remorse/regret or guilty pleas, vi. What is in the interest of justice and not unjust, vii. Substantial and compelling circumstances, viii. Arbitrary or unjust punishment must be avoided and proportionate sentence must be awarded, ix. There must be different punishment for women and juvenile offenders as compared to other offenders. x. Court be given the authority to apply discretion by keeping all the above matters in mind (if applicable) while awarding sentence; and
32. The prosecution in this case has failed to connect the appellants with the crime of possessing narcotics as the Shalwars were not taken into possession, which are key incriminating evidence to be demonstrated under the legal obligation by the prosecution as the primary case of the prosecution rests upon the point that dub of the Shalwar of the appellants narcotics were recovered. Similarly no video evidence was produced by the prosecution to convince this Court that recovery was effected in most transparent manner, therefore, in this backdrop we have been guided by the principles set out in 2015 YLR 2189 (Fayaz Shah vs The State), 2015 PCr LJ 235 (Abdul Qadir vs The State), where car from which contraband was recovered, was not produced before the Court, therefore, this Court presumes that best available evidence i.e. Shalwar of the appellants when not taken into possession, it appears that best evidence was withheld in terms of Article 129(g) of the Qanun-e-Shahadat Order 1984.
The Presumption can be drawn when material incriminating evidence is neither produced nor exhibited that it is not in existence at all as held in 2023 SCMR 781 (Ahmed Ali vs The State), hence conviction could not be awarded as prosecution has failed to prove the case beyond reasonable doubt, which is mandatory requirement under the law to be proved by the prosecution.
33. For what has been discussed above, all the captioned appeals are ALLOWED and the impugned judgment dated 16.09.2023, passed by learned Judge Special Court (CNS), Islamabad is hereby SET-ASIDE and both the appellants are acquitted from the charge while extending the benefit of doubt.
34. Before parting with this judgment, we are of the view that relevant Ministry as well as Federal Government shall look into the recent amendments introduced in the CNSA, 1997 and shall consider the sentencing guidelines in the light of ground realities and behaviors of the society in Pakistan. The Court can issue appropriate directions to the Government to bring the law in conformity with constitution and making reference to the Parliament for reconsideration is in accordance with the law and practice of the apex Court as held in PLD 1992 [SC] 595 at 621 (Hakim Khan v. Government of Pakistan), PLD 2010 [SC] 1165 (Nadeem Ahmed versus Federation of Pakistan), 2009 PLD [Peshawar] 92 (Dr. Fakhr-ud-Din vs Mst. Kausar Takreem), 2016 PLD [SC] 421 (Government of Punjab vs Amir Zahoor-ul-haq), PLD 2014 [SC] 531 (Province of Sindh through Chief Secretary vs MQM through Deputy convener) and PLD1994 [SC] 105 (Government of Sindh vs Sharaf Faridi). It is need of the day to study the pattern of the narcotics accused persons in jail or in pending cases alongwith the expense borne by the Federal Government in management of the prisons as well as State expenses on the criminal prosecution of all those offenders guilty of narcotics crime under CNSA 1997. The minimum period should be addressed while appreciating those factors notwithstanding the standards imposed by other countries and international practices. If the present sentencing regime is applied in strict manner, especially in Pakistan, where there is no mechanism to go beyond the minimum standards of sentence, the very purpose of eliminating the drug trafficking will lost its sight in future or the individual carriers have to be seen differently from the manufacturers producers and gangs operating in this crime, therefore, sentencing guidelines law is need of the hour to be enacted by covering the safety valve and cliff effect principles discussed above.
35. Office is directed to forward copy of this judgment to the Ministry of Law & Justice through Law & Justice Commission of Pakistan, to follow up the matter until finally concluded and report in this regard be submitted to this Court for perusal in chambers.
Implementation Branch of this Court shall also follow up the matter and submit reports after every two months till finalization of matter in the parliament.
1. Online available at https://www.casemine.com/judgement/in/58a5bbd14a93267c3ed0c 7af.
2. Available online https://indiankanoon.org/doc/1493739/
3. Available at https://indiankanoon.org/doc/185493868/