Sale of drone is not prohibited in Pakistan, for the reason, a person cannot be made accused if the same.| case law bail allowed 9c..

اس کیس میں، ملزم عدیل احمد نے ڈرون کا استعمال منشیات کی اسمگلنگ کے لیے کیا تھا۔ خاص طور پر:

1. **ڈرون کا استعمال**: عدیل احمد نے ڈرون کو منشیات کی ترسیل کے لیے استعمال کیا۔ پولیس کے مطابق، ڈرون کو منشیات کی اسمگلنگ کے لیے استعمال کیا گیا تھا، لیکن یہ واضح نہیں تھا کہ اس میں شامل ڈرون کی تصدیق کیسے ہوئی۔

2. **خریداری اور مرمت**: عدیل احمد نے سلمان حمید کی دکان سے ڈرون خریدا اور اس کے بعد ایک ڈرون مرمت کے لیے بھی دکان پر چھوڑا۔

3. **الزامات**: سلمان حمید پر الزام تھا کہ اس نے ڈرون فروخت کر کے عدیل احمد کی مدد کی، جس کا نتیجہ منشیات کی ترسیل میں ہوا۔

یہ معاملہ اس بات پر منحصر تھا کہ آیا سلمان حمید کو معلوم تھا کہ ڈرون کا استعمال غیر قانونی سرگرمیوں میں ہو رہا تھا یا

نہیں۔

اس مقدمے کی کہانی کچھ یوں ہے:

1. **ملزم کی گرفتاری**: 28 فروری 2024 کو، اے این ایف کے اہلکاروں نے ملزم عدیل احمد کو گرفتار کیا۔ اس کے پاس 5 کلوگرام ہیروئن اور ایک ڈرون ملا، جس کا استعمال وہ منشیات کی اسمگلنگ کے لیے کرتا تھا۔

2. **ڈرون کا خریداری**: عدیل احمد نے پولیس کو بتایا کہ اس نے ڈرون سلمان حمید کی دکان سے خریدا تھا، جو کہ لاہور کے Lucky Electronics Hall Road پر واقع تھی۔ اس کے علاوہ، اس نے یہ بھی بتایا کہ اس نے دکان پر ایک سفید ڈرون مرمت کے لیے چھوڑا تھا۔

3. **پولیس کی کارروائی**: 29 فروری 2024 کو، پولیس نے سلمان حمید کی دکان سے پانچ ڈرون برآمد کیے۔ اس پر الزام تھا کہ اس نے اپنے کو ملزم عدیل احمد کو ڈرون فروخت کرکے منشیات کی اسمگلنگ میں مدد فراہم کی۔

4. **درخواست گزار کی پوزیشن**: سلمان حمید نے عدالت میں یہ دعویٰ کیا کہ وہ ایف آئی آر میں نامزد نہیں تھا اور اس کی دکان میں ڈرون کی فروخت قانونی تھی۔ اس نے کہا کہ شریک ملزم کے اعترافات کو بطور ثبوت استعمال نہیں کیا جا سکتا کیونکہ وہ پولیس کے سامنے دیے گئے تھے اور اس نے کوئی براہ راست تعلق منشیات سے نہیں بتایا تھا۔

5. **عدالت کا فیصلہ**: عدالت نے یہ تسلیم کیا کہ سلمان حمید کے پاس سے کوئی منشیات برآمد نہیں ہوئی اور اس کا صرف ڈرون فروخت کرنے کے معاملے میں نام آیا ہے۔ عدالت نے کہا کہ ڈرون کی فروخت کے باعث اسے منشیات کی اسمگلنگ میں ملوث نہیں کیا جا سکتا۔ اس بنیاد پر، سلمان حمید کو ضمانت پر رہا کر دیا گیا۔

یہ کہانی عدالت کی جانب سے انصاف کے تقاضوں کو مدنظر رکھتے ہوئے، سلمان حمید کو ضمانت پر رہا کرنے کے فیصلے پر مبنی ہے، جس میں اس کے کاروبار اور ان کے قانونی پہلوؤں پر غور کیا گیا۔

Form No: HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Crl.Misc. No. 17244-B/2024

Salman Hamid Versus

The State and another

S.No. of order/

Proceeding

Date of order/

Proceeding

Order with signature of Judge and that of

parties or counsel, where necessary.

02.05.2024 Mr. Burhan Moazzam Malik, Advocate for the

petitioner.

Mr. Hammad Akbar Wallana, Special Prosecutor for

ANF with Zahid Ali Channa, Inspector.

Through this petition, Salman Hamid, petitioner

supplicates post-arrest bail in case FIR No. 30/2024

dated 28.02.2024 for offences under sections 9(1)6(e)

and 15 of CNSA, 1997 (Amended Act, 2022)

registered at Police Station RD ANF, Lahore.

2. Pith and marrow facts of the case are that on

28.02.2024 petitioner’s co-accused namely Adeel

Ahmad was apprehended by the ANF officials and

recovered 5 Kilograms heroin concealed in secrete

cavity of his car Toyota Altis bearing Registration No.

ALW-227 as well as a drone with its remote control

and battery. It was further alleged that above

mentioned co-accused disclosed upon query that he

use drone for the supply of narcotics. On 29.02.02024

during the investigation Adeel Ahmad co-accused also

made disclosure that he purchased drone from Lucky

Electronics Hall Road, Lahore owned by Salman

Crl.Misc. No. 17244-B of 2024

Hamid petitioner. Moreover, he has also placed a

white colour drone at the above mentioned shop for

the purpose of repair which he can get recover on

pointation. The above mentioned drone, as well as,

four other drones were recovered from the possession

of petitioner from his shop established in the name and

style of Lucky Electronics Hall Road, Lahore by the

investigating officer on 29.02.2024. It was further

alleged that the petitioner facilitated his co-accused.

Hence, this case.

It is inter alia contended by learned counsel for

the petitioner that the petitioner is not nominated in the

FIR in any capacity, he has been involved in this case

in the light of disclosure made by Adeel Ahmad, coaccused recorded before the police; that he purchased

drone from Lucky Electronics Hall Road, Lahore

owned by the petitioner; that except this, there is no

iota of evidence against the petitioner which can

connect him with the commission of crime; that

statement of co-accused cannot be used against the

petitioner, even otherwise, he has not stated in his

confessional/ in-culpatory statement dated 29.02.2024

before the investigating officer that the petitioner was

in league with him qua the commission of crime.

Further submitted that business of drone is not

prohibited in Pakistan and there is no evidence against

the petitioner that he is involved in the trafficking of

Crl.Misc. No. 17244-B of 2024

narcotics allegedly recovered from his co-accused

Adeel Ahmad.

Contrarily, Learned Special Prosecutor for ANF

has vociferously argued that the petitioner is fully

involved in this case because he sold drone to Adeel

Ahmad co-accused who was using the same for the

supply of narcotics, in this way, offence under section

15 of CNSA, 1997 (amended Act, 2022) is fully

applicable to his extent. Lastly submitted that this

petition has no force and the same may kindly be

dismissed.

I have heard learned counsel for the petitioner as

well as learned Special Prosecutor for ANF

meticulously and perused the record minutely with

their able assistance.

After hearing learned counsel for the parties and

going through the record it has straightaway been

noticed by this Court that no recovery of narcotics was

effected from the possession of petitioner. The

narration of the FIR discloses that recovery of the

narcotics was effected from petitioner’s co-accused

namely Adeel Ahmed. The petitioner has been

involved in this case only on the statement of supra

mentioned co-accused, which is inadmissible in

evidence and cannot be relied upon. Moreover,

according to Article 38 of the Qanun-e-Shahdat Order,

1984 confession of accused before police could not be

used against him. Section 38 of the Order ibid is

Crl.Misc. No. 17244-B of 2024

hereby mentioned below for the purpose of

facilitation:-

“Confession to police officer not to be proved

No confession made to a police officer shall be

proved as against a person accused of an offence”

After visiting the archive of judicial verdicts, I have

found a case law reported as “Raja Muhammad

Younas v. The State” (2013 SCMR 669) wherein the

Hon’ble Supreme Court of Pakistan held as under:-

“After hearing the counsel for the parties and

going through the record, we have noted that

the only material implicating the petitioner is

the statement of co-accused Amjad Mahmood,

Constable. Under Article 38 of Qanun-eShahadat Order, 1984, admission of an

accused before police cannot be used as

evidence against the co-accused.”

Similarly, in case tilted as “Muhammad Sarfraz

Ansari vs. The State and others ” (PLD 2021 SC 738)

apex court of Pakistan has observed as infra:-

“3. We have heard the learned counsel for the

parties and have gone through the record of

the case. We have noticed that the petitioner is

not nominated in FIR; he has rather been

implicated in the case by the co-accused

Waqar Aslam, the prima facie beneficiary of

the alleged fraud, in his confessional

statement during investigation, which has

been relied upon by the learned counsel for

the State to oppose the prayer of the petitioner

for bail. No doubt, as per Article 43 of the

Qanun-e-Shahadat Order, 1984 when more

persons than one are being jointly tried for the

same offence and a confession made by one of

such persons admitting that the offence was

committed by them jointly, is proved, the

court may take into consideration the

confessional statement of that co-accused as

Crl.Misc. No. 17244-B of 2024

circumstantial evidence against the other coaccused(s). However, this Court has, in

several cases, held that conviction of a coaccused cannot be recorded solely on the basis

of confessional statement of one accused

unless there is also some other independent

evidence corroborating such confessional

statement. The principle ingrained in Article

43 of the Qanun-e-Shahadat is applied at the

bail stage and the confessional statement of an

accused can lead the court to form a tentative

view about prima facie involvement of his coaccused in the commission of the alleged

offence; but as in the trial, at the bail stage

also, the prima facie involvement of the coaccused cannot be determined merely on the

basis of confessional statement of other

accused without any other independent

incriminating material corroborating the

confessional statement.”

Moreover, in a recent pronouncement “Akhtar

vs. Khwas Khan and another” (2024 SCMR 476)

Supreme Court of Pakistan while deciding with such

like case has observed as under:-

“So far as the alleged confession of the

petitioner before police during

investigation is concerned, the niceties of

Article 38 of the Qanun-e-Shahadat Order,

1984 are quite lucid that no confession

made to a police officer shall be proved as

against a person accused of any offence,

while Article 39 emphasizes that, subject to

Article 40, no confession made by any

person whilst he is in the custody of a

police officer, unless it be made in the

immediate presence of a Magistrate, shall

be proved as against such person.

Seemingly, a confession made before the

police is not made admissible by dint of the

aforesaid provisions of the Qanun-eShahadat Order, 1984 in order to preserve

and safeguard the philosophy of safe

administration of criminal justice and is

Crl.Misc. No. 17244-B of 2024

also based on public policy. In the aforesaid

backdrop, we are sanguine that the case of

petitioner requires further inquiry to prove

his guilt which can only be thrashed out

after recording of evidence in the Trial

Court.

The petitioner was arrested on 29.02.2024, one

day after registration of FIR by the ANF officials but

the fact remains that the contraband (5-KGs heroin)

was not consciously/actively in possession of the

petitioner. Under Section 6 of the Control of Narcotic

Substances Act, 1997 possession of narcotic drugs is

an offence, which is punishable under Section 9 of the

said Act. Section 6 reads as under:-

“6. Prohibition of possession of narcotic

drug etc.---No one shall produce,

manufacture, extract, prepare, possess,

offer for sale, purchase, distribute, deliver

on any terms whatsoever, transport,

dispatch, any narcotic drug, psychotropic

substance or controlled substance except

for medical scientific or industrial

purposes in the manner and subject to

such conditions as may be specified by or

under this Act or any other law for the

time being in force.”

General Rule is that there is presumption that

mens rea, an evil intention or a knowledge of

wrongfulness of the act is an essential ingredient in

every offence. In other words, the prosecution is duty

bound to prove that the accused was knowingly in

control of something in the circumstances, which

showed that he was assenting to being in control of it.

Crl.Misc. No. 17244-B of 2024

There is no evidence except the oral assertion of the

prosecution that he facilitated in supply of heroin.

I have further noted that there is no evidence on

file against the petitioner that he had any nexus with

recovered heroin. So far as sale and recovery of drones

from the petitioner is concerned, the learned Special

Prosecutor for ANF has failed to prove that sale of

drone is prohibited in Pakistan and the petitioner was

not legally competent to do the business of same. It is

abundantly clear from the record that the petitioner has

been made accused in this case merely on the basis of

sale of drone to main accused which was allegedly

being used by him for the supply of narcotics to his

customers. If the petitioner can be made accused on

the above said ground then dealer of Toyota Car

should have also been accused of this case because

Toyota Altis Car has allegedly been used for the

transportation of heroin and the same has also been

taken into possession by the investigating officer at the

time of recovery of heroin and arrest of accused.

It is pertinent to mention here that investigating

officer recorded first confessional statement of Adeel

Ahmad co-accused on 28.02.2024 in line with the

story of crime report. In that statement he (co-accused)

has not stated that he purchased drone from petitioner

but on the following day, i.e. 29.02.2024 his second

confessional statement was recorded during the course

of investigation wherein he simply stated that

Crl.Misc. No. 17244-B of 2024

recovered drone was purchased from Lucky Electronic

Hall Road, Lahore owned by the petitioner. In his

second confessional statement Adeel Ahmad, coaccused has not stated that Salman Hamid, petitioner

was in the knowledge that he (co-accused) purchased

drone from his shop for the purpose of supply of

narcotics or the petitioner was in connived with him in

the illegal business of narcotics.

It would not be out of place to mention here that

Article 18 of the Constitution of Islamic Republic of

Pakistan, 1973 fully safeguards the lawful business of

the citizens, which for convenience is reproduced

infra:-

Article 18. Subject to such qualifications, if

any, as may be prescribed by law, every

citizen shall have the right to enter upon any

lawful profession or occupation, and to

conduct any lawful trade or business :

Provided that nothing in this Article shall

prevent–

(a) the regulation of any trade or profession

by a licensing system; or

(b) the regulation of trade, commerce or

industry in the interest of free competition

therein; or

Government or a Provincial Government, or

by a corporation controlled by any such

Government, of any trade, business, Freedom

of assembly. Freedom of association. Freedom

of trade, business or profession industry or

service, to the exclusion, complete or partial,

of other persons

Crl.Misc. No. 17244-B of 2024

It has been ordained in Article 4 of the

Constitution of Islamic Republic of Pakistan, 1973 that

every citizen of Pakistan shall be treated in accordance

with law. Article 4 is hereby mentioned below:

Article 4. (1) To enjoy the protection of law and to

be treated in accordance with law is the inalienable

right of every citizen, wherever he may be, and of

every other person for the time being within

Pakistan.

(2) In particular–

(a) no action detrimental to the life, liberty, body,

reputation or property of any person shall be taken

except in accordance with law;

(b) no person shall be prevented from or be

hindered in doing that which is not prohibited by

law; and

the law does not require him to do.

More-so, life and liberty of a person is protected

in the light of Article 9 of the Constitution of Islamic

Republic of Pakistan, 1973 which is described below

for the purpose of facilitation:-

Article 9.

No person shall be deprived of life or

liberty save in accordance with law.

In the light of above said circumstances, it is

held that investigating officer of this case has travelled

beyond his jurisdiction. He illegally arrested the

petitioner and thereafter taken into possession drones

from his shop without lawful authority. If this practice

be allowed to continue, then not a single citizen of

Pakistan can run any lawful business.

Crl.Misc. No. 17244-B of 2024

10. Another crippling feature of this case which

cannot be lost sight of is that it is nowhere mentioned

in the prosecution’s case that the petitioner has some

direct relation with the narcotic drugs or as otherwise

dealt with. It is worth mentioning here that the

evidence of an accomplice is ordinarily regarded as

suspicion; therefore, extent and level of corroboration

has to be assessed keeping in view the peculiar facts

and surrounding circumstances of the case. The

question whether the petitioner had the conscious

knowledge that sold out drone to be used for the

supply of narcotics to its customers by the co-accused

Adeel Ahmad, shall be determined by the trial court

after recording of evidence and at this stage

applicability of section 15 of Control of Narcotics

Substances Act, 1997 against the petitioner is doubtful

in nature because no such evidence is available in this

respect. Reliance in placed upon the following case

law titled as “Atif ur Rehman vs. The State and

another” (2021 SCMR 324) and “Gul Manan vs. The

State” (2021 SCMR 1804).

11. It is settled law that once accused succeeds to

establish that his case calls for further inquiry and

probe, then rigors contained in section 51 of the

CNSA, 1997 would not be attracted. A reference in

this respect may be made to the case laws reported as

“Dad Khan vs. The State” (2020 SCMR 2062) and

“Noman alias Noma vs. The State” (2020 P.Cr.L.J.

Note 40). The petitioner is behind the bars since

Crl.Misc. No. 17244-B of 2024

29.02.2024. The investigation of the case is complete

and the petitioner is no more required by the police for

the purpose of further investigation. The petitioner is

still awaiting his trial, the conclusion of which is not in

sight in near future, therefore, his further detention in

jail would serve no useful purpose for the prosecution.

Accordingly, this petition is allowed and the petitioner

is admitted to post arrest bail on furnishing bail bond

in the sum of Rs.5,00,000/- with one surety in the like

amount to the satisfaction of the learned trial Court.

12. Needless to mention here that the observations

made hereinabove are only tentative in their nature and

are strictly confined to the extent of grant of instant

bail.

(Muhammad Tariq Nadeem)

Judge

Approved for reporting

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