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September 1, 2018

Hanif Abbasi’s conviction: Google-based decision flawed, says ex-LHC judge


September 1, 2018

ISLAMABAD: A former high court Judge has strongly criticized the “google-based” decision of Control of Narcotics Substances Court (CNSC) court in which PML-N leader Hanif Abbasi was sentenced to life imprisonment for illegal possession of 137Kg Ephedrine.

Justice (retd) Sagheer Ahmed Qadri believes the accused should have been given the benefit of doubt as punishment could not be given on presumption.

A review of the 69-page verdict of the CNSC Rawalpindi judge reveals that entire case against Hanif hinges on a google research by the court and a presumption that the accused illegally possessed the chemical which can be used to make narcotic substance Methamphetamine.

“The decision is weak as section 9-c of the Control of Narcotics Substances Act does not apply to this case as the accused obtained Ephedrine lawfully and he could only be punished under section 16 of the Act which deals with misuse of the quota,” said Former High Court Judge Justice (Retd) Justice Sagheer Ahmed Qadri while talking to The News.

He quoted an earlier decision of the Lahore High Court (LHC) announced in November 2012 which stated that section 9 C which contains Capital punishment does not apply to Hanif Abbasi’s case as the accused was lawfully allotted 500 kg of ephedrine quota during 2010 to manufacture tablets. The LHC bench comprising Justice Sagheer Qadri and Justice Baqi Najfi while granting bail to Hanif Abbasi in 2012 had told the ANF that if the allegations against Hanif Abbasi were proved, the offence would fall under section 16 making the offence bailable with maximum punishment of 1 year.

“The only allegation against Hanif Abbasi in the FIR and subsequent investigation is that he misused or did not use that ephedrine a control substance for preparation of the medicine (De-Asm 30 mg tablets) for which purpose it was granted,” the order had said.

The former High Court judge also criticized the use of word presumption in the CNSC order saying it was the responsibility of prosecution to prove its allegation. “Otherwise the accused should have been given the benefit of doubt,” the former judge said.

Interestingly Justice (retd) Sagheer said the court used google to declare ephedrine as controlled or narcotic substance which has no value in Pakistan’s law. “Google is not authentic reference in court of law” Justice Sagheer said. He, however, said ephedrine does fall under controlled substances as per a decision of Lahore High Court delivered by a bench which included him. “I had written an order of the Lahore High Court which stated ephedrine is a controlled substance as per international treaties signed by Pakistan,” he said.

When contacted, ANF special prosecutor Zahid Mehmood said the prosecution pleaded the case professionally. When asked if he pointed out google research during the proceedings of the case, he said the judgment has been delivered and he would not like to offer any further opinion on the merit of the case. He referred this correspondent to legal experts and retired judges for any further comment on the decision.

According to 69-page verdict announced on July 21, 2018 the prosecution failed to present any evidence of sale of Ephedrine by the accused to smugglers or drug users so the court presumed that Hanif Abbasi remained in illegal possession of 137Kg Ephedrine. It is important to mention that prosecution could not recover any drug from the possession of accused. In its written order, the court also admitted the evidence produced by prosecution that remaining amount of 500kg Ephedrine was used to manufacture a medicine (De-Asm tablets) by Abbasi’s pharmaceutical factory.

Abbasi, a candidate of opposition PML-N from Rawalpindi’s important NA-60 constituency was sent to Adiala Jail on 21st July just days ahead of 2018 general elections. Interestingly the court admitted that Ephedrine is not mentioned in the relevant law as controlled or narcotic substance so court used google search engine to find evidence in the absence of any chemical expert.

“Admittedly no definition of Ephedrine has been given in the Control of Narcotic Substances (CNS) Act 1997 and the same is not being mentioned as Psychotropic Substance in the schedule of CNS 1997,” says the court order. It adds that 85 substances has been mentioned as Psychotropic Substances in the schedule of CNS 1997 but Ephedrine was not among them. Yet the court relied on a Google article to prove that Ephedrine could be used to prepare “Metafetamine” or “Methamphetamine” which is mentioned at serial NO 47 of the said list.

“This court is not the chemist/expert and no chemical expert or chemist assisted the this court in this respect, however this court has researched from google while going at website according to which the matter of preparation of “Methamphetamine” the Ephedrine is given.” Interesting the entire article dated 1990 was copy pasted in the judgment.

The verdict says the google “research” has made it clear that “Methamphetamine” cane be made using Ephedrine. “In this way this court has no hesitation to hold that although Ephedrine is not mentioned in the schedule of CNSA 1997 and the same has not been defined in the section 2 of the CNSA 1997 (directly) but even then the same falls in the definition of controlled substance as defined in section 2(k2) of Control of Narcotic Substances Act 1997”.

On the other hand the court also could not find any evidence that Hanif Abbasi sold the substance in black market. “No iota of evidence could come on record regarding the sale of Ephedrine by Muhammad Hanif Abbasi to anyone else,” says the verdict. The order says it was prosecution’s version that after purchasing Ephedrine accused Muhammad Hanif Abbasi has not manufactured the De-Asm tablets rather he had sold the same to the black market. But the court categorically rejected the prosecution’s claim. “While producing the Prosecution Witness (PW-16) Muhammad Arif Mithani and PW-22 Muhammad Idrees Shiekh, the prosecution version regarding non-manufacturing of De-Asm tablets by Grays Pharmaceutical Company has been partially fallen on ground”

However, the court says that although prosecution failed to established Abbasi had sold out Ephedrine to anyone else “even then this court is of the humble view that accused being proprietor/co-partner of Grays Pharmaceutical Company was bound to state legal use of Ephedrine through legal process for the legal use of the same i.e for the manufacturing of De-Asm tablets,” says the decision. The court also admitted that De-Asm tablets were indeed manufactured with Ephedrine by Hanif Abbasi’s Grays Pharmaceutical company which later sold it to Arafat Traders Karachi as testified by the prosecution witnesses. It said the legal use of 363 Kgs of Ephedrine is clear from the prosecution evidence. “To the extent of remaining part of Ephedrine i.e the misuse of Ephedrine weighing 137 kgs the prosecution has succeeded to prove its case,” the court said.

But the decision does not state what happened to 137 kg of Ephedrine. “While not using the same for manufacturing of medicine, the same remained in illegal possession of accused/co-owner of the factory therefore now with the passage of long time, the possession of the same has become illegal,” says the judgment

The court then presumed the accused was in illegal possession of 137 Kg of chemical. “As per law it is presumed that after purchasing the 500 kgs of Ephedrine from the Alpha Chemical Lahore by using 363 KGs for the manufacture of De-Asm tablet and remaining 137Kg of Ephedrine is still in the possession of accused”.

The lawyer of Abbasi argued that the remaining amount was also used for drug manufacturing and presented invoices and bank statement of the pharmaceutical companies to prove the sale of medicine but the court termed the evidence inadequate. The court also rejected the defense argument that accused Hanif Abbasi can’t be convicted and sentences under CNSA 1997 rather he can only be sentence for violation of terms and conditions of his license issued by the Ministry of Health Islamabad under Drugs Act 1976.

The court acquitted all seven accused including the business partner of Hanif Abbasi giving them benefit of doubt. However Hanif Abbasi was not given the benefit of doubt despite the verdict clearly stating that the accused in favourite child of law.

Interestingly, a similar case of illegal possession and sale Ephedrine 9000kg two PPP politicians including Musa Gilani (son of former PM Yousuf Raza Gilani) and Makhdoom Shahabuddin is pending for years as the accused has moved the higher courts pleading that Ephedrine was non-controlled substance as per existing law.

At one point while discarding FIR against three accused Msr Razia Zahid Bakhtawari, Asif Sheikhani and Zulfiqar Sheikhani the written verdict states: “ As per well settled principles of law, the prosecution is duty bound to prove its case against the accused person beyond any reasonable doubt and in case of arising of any dent and doubt in the prosecution evidence, the benefit of the same can only be given to the accused as the accused in favourite child of law and benefit of the same cannot be stretched in favour of prosecution at all. ”

The court order also stated “Although it has been forcefully argued by the learned SPP and Deputy Director Law ANF that section 29 of CNS 1997, casts the duty upon the defence to prove his case but this court is of the humble view that as per century old principles of criminal dispensation of justice, primarily burden of proof lie on prosecution and the prosecution is duty bound and could not be absolved there from its legal duty.”