World over, it seems to be the case that under the banner of waging a war against drugs, the very poor and marginalised are disproportionately and almost exclusively caught up in processes of criminalisation. These are not the same people who are realising astronomical profits from the global trade in drugs. Whereas some efforts have been undertaken elsewhere to redress the imbalance so that different drugs are assessed differently and criminal sentencing reflects the levels of responsibility that attaches to those who control and profit from the drug trade, such welcome changes have not impacted the operation of Pakistan’s drug law.

If we assume that Pakistan has a ‘drug problem’, it is a composite one in which drug addiction afflicts more than 6 million persons, with a sizeable proportion found amongst the already incarcerated. Additionally, the problem is one of endemic violence that is unleashed into people’s homes and in communities from the commercial circulation and abuse of drugs. Finally, there is the broader issue of political and criminal impunity for those who are financing and controlling the drug trade, the kingpins and cartels.

Having successfully interdicted and contained the cultivation of drugs from within Pakistan’s territory, our law makers seemingly made a turn toward controlling the traffic of drugs through and within the country. In 1997, the Control of Narcotic Substances Act aimed to tackle these additional problems by prescribing heavy punishments for possession, trafficking, production, export, import and the overall financing of the drug trade. However, while these are named as separate and specific offences, courts are only handed those accused who can safely be convicted based upon physical possession of an illicit substance. Given that the punishments do not differ amongst the offences, this gives a false impression of the success of our domestic war on drugs.

Whereas the ANF claims to be making record numbers of arrests and seizures, the fact that this is making a negligible difference on our multi-faceted drug problem reflects the many irrationalities of our current law in operation. These specific problems of the current legal regime have been brought to light by the Foundation for Fundamental Rights in its report, ‘Optimizing Pakistan’s Drug Law’ launched in January, 2018. Keeping in view the findings of the report, it is important that law enforcement agencies initiate a crackdown on the kingpins rather than seeking harsh penalties for drug mules or couriers, those who account for the lion’s share of the arrests made under the CNSA.

As it currently stands, the report shows that 70 per cent of cases initiated under the CNSA never revealed a kingpin while 29 per cent of the cases that did report actionable leads to the cartel were never pursued by law enforcement agencies. Secondly, the report claimed that 72 per cent of the culprits were extremely poor, while the majority of them were also uneducated, therefore susceptible to the cartels for misuse.

Two specific and inter-related problems can be cited of the CNSA as it currently stands. Reliance on the charge of possession flows from the reduced burden of proving an offence where even mere proximity is held sufficient for a conviction. In fact, the CNSA by way of specific provisions binds the accused to prove his or her innocence, while shifting the burden of proving guilt, as per a normal criminal standard of proof, away from the prosecution. Not only grievously ultra vires to the guarantees of fair trial and due process as enshrined in the Constitution, this regime has vastly unfair consequences in practice.

For instance, a truck driver may be caught transporting a sizeable amount of narcotics, either unbeknownst to him or for a small sum of money whereas the person financing and consigning this shipment will be at a safe distance from the substance itself. Gathering evidence about their criminal liability under the law would require far greater investigative efforts than our law enforcement agents have been willing or able to undertake.

Additionally, as stated before, the Control of Narcotic Substances Act, 1997 (CNSA), has not offered any distinction between hard and soft drugs in terms of punishments, which arguably leads to disproportionate punishment in regards to the latter. As per section 9(c), possessing 1 kg of Cannabis or 1 kg of Heroin carries the same punishment i.e. Life imprisonment or death. The same seems entirely unreasonable as the health and social harm of both drugs is poles apart. This is also in direct contrast to worldwide trends which evidence a cognizance of this variance. Fortunately, we have some progressive jurisprudence from our superior courts which appreciate the need for drawing such distinctions.

Notably, a special bench of the Lahore High Court in PLD 2009 Lahore 362 decreed that silence of the CNSA on classes of drugs does not mandate a blind approach towards the circumstantial evidence, mitigating factors or the types of drugs involved. The court provides:

"Different kinds of contraband narcotic substances covered by the Control of Narcotics Substances Act, 1997 vary sharply in their harmful nature or dangerous effects as a huge quantity of one substance may be less harmful or dangerous than a small quantity of another substance. Thus, in many situations a sentencing approach based only upon quantity of the recovered substance may lead to unjust and oppressive results and to punishments which may be unduly cruel and harsh."

The honourable judges proceeded in that case to formulate a criterion for convictions depending upon the quantity and the composition of the drug. The specific intent of the judges was to protect the rights of the drug mules used by the drug mafias. The same criterion was upheld by the Honorable Supreme Court of Pakistan in PLD 2012 Supreme Court 380.

Overall though, courts under the CNSA have failed to incorporate these rules and sentencing thereby continues to be in violation of direct orders of the superior judiciary and thereby arbitrary. Altogether, this compounds the failure of prosecution to protect the greater interest of justice and fails to take into account the rights guaranteed to accused under the law.