The excessive grants of bail in narcotics cases are emerging as an impending disaster, setting a troubling precedent that threatens public safety. The root of the issue, currently under consideration, is the dysfunctionality of the National Forensic Science Agency in Islamabad (NFSA), the body responsible for conducting forensic analysis to confirm the weight and nature of narcotic substances seized from an accused individual. Without these essential forensic reports, the courts cannot be certain that the substance recovered is a prohibited narcotic substance, compelling them to grant bail. The failure of the NFSA has not only weakened the judicial process but has also left the most vulnerable segments of society increasingly exposed to the dangers of narcotics-related crimes. 

The Control of Narcotics Act, 1997 (CNSA) provides stringent provisions for offenders involved in possessing, selling and trafficking narcotics. However, despite the frequent reports submitted by government organizations and law enforcement agencies as well as significant concern expressed by the Superior Courts of Pakistan regarding the structural and legislative challenges that have impeded successful trials and prosecution under the Act of 1997, the effectiveness in apprehending and dismantling actual drug cartels remains as limited as the rate of convictions.

The NFSA, a project initially approved in 2002 was aimed at the establishment of a main laboratory and training facilities in Islamabad with science laboratories across the provinces. Despite draft legislation for the lab being sent for introduction to the National Assembly in 2022, it remains to see the light of day. The NFSA in Islamabad has remained a temporary ‘project’ to date with no appropriate legislation to guide its functioning and no guarantee of its continuing functioning as an established agency.

During a meeting on the first day of April 2024, the Central Development Working Party approved the establishment of a structured National Forensic Science Agency in Islamabad with a budget set at 1.8 billion rupees. Despite a glimmer of hope in the pursuit of justice, the Capital remains trapped in a vacuum. This persisting issue has recently attracted the judicial notice of the Honorable High Court in the case titled Mubarak v the State. During the bail hearing for an accused caught with 4,744 grams of Chars, the Investigating Officer informed the court that the expert opinion from the National Forensic Science Agency on the seized contraband was unavailable. The Court directed the Investigating Officer to obtain the report but was met with troubling news: the NFSA’s operations had effectively ceased since June 30^th, 2023, due to the expiration of its project, lack of funding from relevant ministries, and a 10-month salary backlog for its employees. Furthermore, essential consumables for forensic analysis had been depleted and were not restocked. As a result, 877 narcotics cases were currently pending, with the NFSA unable to generate any reports until ‘authorization and funding’ were provided by the concerned ministries. Justice Tariq Mehmood Jahangiri underscored the urgency and severity of the situation caused by the lab’s dysfunctionality by immediately directing the Project Director NFSA, the Inspector General of Police, ICT, the Advocate General, ICT, the Additional Attorney General and the Chief Commissioner, ICT to submit their comments and appear in person.

During a subsequent hearing in June 2024, the Project Director of NFSA apprised the Court that the agency had restored its functionality, and the contraband recovered in narcotics cases was being examined.  However, in a familiar pattern of bureaucratic inertia, with projects approved on paper yet stalled in limbo, a surge of delays in forensic reports has once again overwhelmed the Honorable Islamabad High Court, compelling it to issue excessive bails. to drug peddlers accused of trafficking as much as over 8 kilograms of contraband.

From the project’s approval on paper in April this year to the court’s revelation of the NFSA’s dysfunction in early July, and the sudden announcement of its restored functionality later that same month, only to see the reports stall again by September—this troubling pattern raises a critical question: Who is to say this cycle of dysfunction will not repeat itself? Each time a new case emerges, the lab swings between operational and non-operational status, leaving both the courts and the community in a state of uncertainty.  

As the supply of paraphernalia expands to meet the escalating demand, the number of cases brought before the courts continues to rise correspondingly. The stark and unsettling statistics on drug use in the Capital have been a source of profound concern and alarm, a sentiment that is reflected in observations of the courts. Indeed, the Islamabad High Court, in particular, has found its ‘hands tied’ when deciding bail petitions in the offences punishable under the Control of Narcotics Act as the National Forensic Science Agency remains effectively dysfunctional. The inefficiency of the lab in generating forensic reports to verify the weight and nature of seized substances has given the drug peddlers and handlers free reign, as they revel in the surge of bail grants.  

The Bail Blueprint

Given the inefficiency of the NFSA, the courts are increasingly compelled to grant bail in narcotics cases. While various circumstances exist whereby bail is granted, only one is relevant to the discussion in this article. Although not exhaustive, the following list, therefore, provides a general overview of these circumstances.

1. 1) Where the accused is shown to have been a first offender and having a minor role in the actual crime (Asad Imam versus The State and another Crl.Misc.No. 448-B/2024);
2. 2) Where the chemical analysis report does not carry and explain the protocols engaged in the process or no report has been generated to confirm the allegation levelled in the case FIR; Nayyar Iqbal v The State (Crim Misc. No. 956-B/2020);
3. 3) Where the police and the prosecution have made serious flaws and negligence in conducting an investigation or ensuring the safe custody of the narcotics substance so recovered from an accused. This case also includes the matters of violating the directions contained in the judgments of The State through Advocate-General Sindh v. Bashir and others (PLD 1997 SC 408);
4. 4) Where there is no probability of a conviction and for the trial to be concluded in the near future/grounds of statutory delay in concluding the case on the part of prosecution Nouman Mushtaq v The State (2012 MLD 905);
5. 5) Where the accused successfully demonstrates that the weight of narcotics recovered does not fall within the prohibitory limb of the Code of Criminal Procedure 1898 (hereinafter referred to as the “Code”) or is at best, a borderline case. Mahboob Ali v. The State (2007 YLR Sindh 2968).

It is this category of cases listed at the second limb of serial no. (2) which is of our concern.

An examination of the legal dimensions of this issue reveals that the Code of Criminal Procedure, 1898 (Cr.P.C.)- the bible of criminal procedure in Pakistan governs the conditions under which bail may be granted in cases involving non-bailable offences. Section 497(2) advances the concept of ‘further inquiry’, an exception to the prohibitory clause which allows a court to grant bail in non-bailable offences.

A Certain category of offences as listed in section 9 of the Amendment of CNSA are punishable with imprisonment for life or death thus these offences fall within the prohibitory clause of section 497(1) Cr.P.C. The second part of section 497(1) 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. However, Bail in offences that fall within the prohibitory clause of section 497(1) Cr.p.c may be granted under section 497(2) Cr.P.C. if there are no reasonable grounds for believing the accused committed the offence, but sufficient grounds for further inquiry into his guilt exist. This concept was reiterated in the case of Nayyar Iqbal v the State where the court observed that the report of the Chemical Examiner is awaited, making the case one of further probe which falls within the ambit of sub section (2) of Section 497 Cr.P.C, entitling the accused to the concession of bail.

Rights v Risks

As the judiciary strives to uphold the fundamental rights of the accused as enshrined in the Constitution it adheres to the established principle that ‘individuals cannot be left at the mercy of the prosecution to languish in jail indefinitely’. In the absence of expert opinions and chemical analysis reports from the NFSA to verify whether the recovered items are narcotics, the courts are unable to either reject bail petitions or hold the accused in judicial detention for an indefinite period. The Multan Bench of the Lahore High Court held, while referencing the case of Ameer Zeb v the State, where the Supreme Court had observed that the Control of Narcotic Substances Act 1997 imposes disproportionally severe and lengthy sentences. To ensure the fair administration of criminal justice, the court emphasized the need to establish the minimum standards of safety to maintain a balance between the prosecution and the defense, and to prevent the risk of miscarriages of justice due to potential exaggeration by investigating agencies. These standards are also essential for protecting the fundamental rights of citizens concerning life and liberty, which should not be compromised by mere verbal claims made by police officers unless such claims are backed by independent evidence provided by a chemical examiner.

Yet with no functional forensic science agency, the Islamabad High Court is left to navigate a delicate balancing act, riddled with peril on both sides of the judicial scale. The apex court in the case titled Socha Gul v the State observed that the offences punishable under C.N.S. Act of 1997 are by their nature heinous and considered to be the offences against the society at large and it is for this reason that the statute itself has provided a note of caution under before enlarging an accused on bail in the ordinary course. A fully operational NFSA is essential to ensure that forensic evidence is promptly available, thereby preventing unnecessary loopholes that drug peddlers might exploit to secure bail.

The unintended consequences of protecting the fundamental rights of the accused are a growing threat. Drawing upon an order passed by the Honorable Chief Justice whereby the devastating impact of narcotic substances on individuals and society as a whole was recognized it is highlighted that ineffective investigations, lacking proper evidence, undermine the prosecution’s case and result in an increased burden on the judicial system. The Courts are overwhelmed with bail applications due to delays in trials, a situation that is exacerbated by the dysfunction of the NFSA. On the other side of this judicial balance lies the broader society, facing significant risks from repeat offenders enlarged on bail in narcotics cases. The balance that upholds the rights of the accused without compromising the safety and well-being of the community currently seems out of reach due to the systematic failures of the forensic laboratory.

In a striking irony, the very capital of the country, which should set the standard for governance and infrastructure, is left without a functioning forensic science agency, while the provinces thrive with state-of-the-art laboratories and robust legislative frameworks ensuring their smooth operation and effective justice. Drawing inspiration from the provincial models a dedicated push towards revitalizing the NFSA and the legislative framework has become necessary to equip the judiciary with the tools it needs to function equitably and effectively.

In conclusion, the dysfunctionality of the National Forensic Science Agency (NFSA) in Islamabad has created significant gaps in the administration of justice, particularly in narcotics cases. The inability to produce timely forensic reports weakens the prosecution’s case, forcing courts to grant bail to accused individuals under the principle of ‘further inquiry’ as provided by Section 497 of the Code of Criminal Procedure. This not only risks the release of potentially dangerous drug offenders but also weakens the overall deterrence against narcotics-related crimes. To uphold public safety while protecting the rights of the accused, immediate reforms in the NFSA’s operational capacity are essential to untie the hands of the judiciary, enabling it to pass orders without being constrained by the lack of forensic evidence.