The case of Zahid Sarfaraz Gill v. The State (2024 S C M R 934) presents a critical examination of the legal process, investigation techniques, and the use of modern technology in criminal cases, particularly in the context of narcotics-related offenses. The judgment delivered by the Supreme Court of Pakistan, represented by Chief Justice Qazi Faez Isa, Amin-ud-Din Khan, and Athar Minallah JJ, brings to light key legal principles and guidelines on issues ranging from further inquiry for bail to procedural deficiencies in law enforcement. This decision is significant because it touches upon the inherent challenges faced by courts in balancing the protection of individual rights against the societal interest in curbing drug-related crimes. The court not only grants bail but also sets forth recommendations aimed at improving law enforcement practices in narcotics cases.
Case Overview
The petitioner, Zahid Sarfaraz Gill, was charged under Section 9(c) of the Control of Narcotic Substances Act, 1997, for possession of narcotics. He was accused of possessing 1,833 grams of charas, a quantity that falls under the third category of the Act, which prescribes severe punishment ranging from nine to fourteen years of imprisonment and includes a fine. The police alleged that Gill was arrested in a public park in Islamabad during daylight hours in May, and no civilian witnesses were present at the time of arrest. The only witnesses to the arrest and seizure were the policemen involved.
The petitioner, through his counsel, argued that he had been falsely implicated in the case. The defense contended that the case was a counterblast to a complaint Gill had lodged against certain police officials earlier in May, just days before the alleged arrest for narcotics possession. The defense pointed out several anomalies in the prosecution’s case, notably the fact that no video recordings or photographs were taken during the arrest, despite it occurring in a public place during daylight. The absence of such evidence cast doubt on the prosecution’s case and suggested that the petitioner may have been falsely implicated. Consequently, the petitioner sought bail on the grounds that the circumstances of the case warranted further inquiry.
Legal Provisions at Play
The case hinges upon several provisions of law, including:
- Section 9(c) of the Control of Narcotic Substances Act, 1997: This section deals with the possession of narcotics and prescribes heavy penalties based on the quantity of the substance. In Gill’s case, the possession of 1,833 grams of charas led to the invocation of this section.
- Section 497(2) of the Criminal Procedure Code (CrPC), 1898: This section allows the court to grant bail if the circumstances of the case suggest that there is a need for further inquiry. Gill’s defense relied heavily on this provision to argue that the inconsistencies in the prosecution’s case and the lack of corroborating evidence (such as video recordings) made it a fit case for further inquiry.
- Articles 164 and 165 of the Qanun-e-Shahadat (Law of Evidence), 1984: These articles permit the use of modern devices and techniques, such as video recordings and photographs, as evidence in legal proceedings. The court invoked these provisions to underscore the importance of using such technology to support the prosecution’s case and ensure transparency in investigations.
Bail and Further Inquiry
A key issue in this case was whether the petitioner was entitled to bail based on the concept of “further inquiry.” Section 497(2) of the CrPC allows for the grant of bail when the facts of the case are not straightforward and require further investigation or scrutiny. In Gill’s case, the court found that several factors warranted further inquiry:
- Lack of Civilian Witnesses: The arrest occurred in a public park during daylight hours, yet no civilian witnesses were present. The only witnesses were police officers, which raised concerns about the reliability of the prosecution’s case. The absence of neutral, independent witnesses created a situation where the court could not rely solely on the testimony of law enforcement officials.
- Absence of Video/Photographic Evidence: The defense argued, and the court agreed, that in modern times, especially in public spaces, it is reasonable to expect law enforcement to use available technology such as mobile phones to record arrests and seizures. The fact that the police did not take any photographs or videos of the seizure or arrest, despite the ease of doing so, made the prosecution’s case less credible. The court noted that Article 164 of the Qanun-e-Shahadat specifically allows for the use of modern devices as evidence, and Article 165 overrides other laws to permit such evidence.
- Mala Fide Allegations: The defense also alleged that the arrest was made in retaliation for a complaint Gill had filed against certain police officers. This claim of mala fide (bad faith) was another factor that raised doubts about the prosecution’s case and suggested the possibility of false implication.
The court concluded that these factors made the case one of further inquiry, justifying the grant of bail. The Supreme Court converted the petition for leave to appeal into an appeal and allowed it, setting aside the order of the Islamabad High Court, which had earlier rejected Gill’s bail application.
Use of Technology in Law Enforcement
One of the most significant aspects of this case is the court’s emphasis on the use of technology by law enforcement agencies in narcotics cases. The judgment highlights the importance of video recordings and photographs in establishing the credibility of the prosecution’s case, particularly in cases where there are no civilian witnesses. The court noted that while Section 25 of the Control of Narcotic Substances Act excludes the applicability of Section 103 of the CrPC (which requires two or more respectable inhabitants of the locality to be present during searches), there is no reason why law enforcement officers cannot use modern technology to document their actions.
The court observed that almost all law enforcement personnel are equipped with mobile phones that have in-built cameras, and there is no practical barrier to using these devices to record searches, seizures, and arrests. Such recordings could serve as crucial evidence in court, helping to establish the presence of the accused at the crime scene, the possession of the narcotics, and the legitimacy of the search and seizure. Moreover, it would protect law enforcement officers from false accusations of planting evidence or acting with ulterior motives.
The court’s recommendation to use video and photographic evidence reflects a broader trend in modern jurisprudence, where courts increasingly recognize the value of technology in ensuring fairness and transparency in criminal investigations. In narcotics cases, where the stakes are high and the penalties severe, the use of such evidence can play a crucial role in determining the outcome of the trial.
Recommendations for Law Enforcement Agencies
In addition to granting bail to the petitioner, the Supreme Court issued several important directives to various government and law enforcement agencies. The court ordered that copies of the judgment be sent to:
- The Secretary of the Ministry of Narcotics Control,
- The Director-General of the Anti-Narcotics Force (ANF),
- The Secretaries of the Home Departments of all provinces,
- The Inspector Generals of Police of all provinces and the Islamabad Capital Territory.
These authorities were directed to consider whether amendments to the rules governing the ANF and the police were necessary to ensure that video recordings and photographs are taken during arrests, searches, and seizures in narcotics cases. The court emphasized that making such evidence available could prevent unnecessary