ISLAMABAD:
Supreme Court Justice Malik Shahzad Ahmad Khan has observed that the practice of planting fake narcotics recoveries against innocent persons – including politicians belonging to opposition parties, as well as individuals who have enmity with police officials or influential persons – is common in our society.
“The practice of planting fake recoveries of narcotics against innocent persons including the politicians belonging to opposition parties, as well as, persons having enmity with the police officials or influential persons, is common in our society, therefore, in order to rule out or at-least minimize the possibility of false involvement of any innocent person in the cases registered under the provisions of the Control of Narcotic Substances Act, 1997 (Act, 1997), the provisions of the Act ibid and rules made thereunder be construed strictly,” Justice Khan said in his 14-page dissenting opinion to adjudicate several questions of law regarding the admissibility of forensic experts’ reports under Section 36 of the Control of Narcotic Substances Act, 1997, and Rule 6 of the 2001 Rules.
The apex court constituted a larger bench to resolve the controversy arising from several inconsistent judgments.
In 2015, the court held that mentioning full protocols in the report was mandatory and that failure to do so would vitiate its evidentiary value. However, in another matter, the Supreme Court had taken a contrary view.
The majority judgment held that the requirement under the unamended Rule 6 of the 2001 Rules, which required government analysts to submit test results along with full details of the tests applied, was not mandatory but directory.
Justice Khan, however, dissented from the majority opinion and held that it is the constitutional right of every citizen of Pakistan under Articles 4 and 10-A of the Constitution to be dealt with in accordance with law and to be afforded a fair trial and due process.
“It is, therefore, evident from the Articles of the Constitution that no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with the law SC judge observed that the main object of the Control of Narcotic Substances Act is to prevent the use, sale, purchase, transportation etc of the narcotic substances but if the Chemical Examiner does not mention the full protocols in its report then the same shall create doubt in the prosecution case, which will result into acquittal of the accused on the ground and as such the non-compliance of rule 6 of the Rules, 2001 would defeat the purpose of the main Act i.e., Act, 1997.
“Likewise, non-compliance of rule supra shall also prejudice the case of an accused, who might have falsely been involved in a narcotic case.
“Likewise, it is also provided in the articles of the constitution that in any criminal charge against a person, he shall be entitled to a fair trial and due process.
“It is clear that under the Constitution, every citizen of Pakistan is entitled to be tried in accordance with the law, fair trial and due process,” the apex court judge said.
“This Court has time and again held in its various judgments that as very stringent punishments are provided for the offences under the Act of 1997, therefore, provisions of the said Act and rules made thereunder be construed strictly. It has also been repeatedly held by this Court that it is in the interest of justice that the relevant provisions of law dealing with the procedure, as well as, furnishing expert report etc are to be followed in their letter and spirit,” he added.
According to Justice Khan, it would be highly risky to hold that non-mentioning of full protocols does not, in itself, invalidate the report of the government analyst, and that merely mentioning the names of internationally recognized tests in the report would amount to “full and sufficient compliance” with the 2001 Rules.
He said that the main point for determination before this larger bench is that as to “whether the mentioning of full protocols (i.e., details of the test[s] applied, steps taken during the said tests and the results of test[s]) in the report of the government analyst is mandatory or not and if the report does not disclose the full protocols then as to whether it will vitiate its evidentiary value”.
The Supreme Court judge noted that in different cases, whenever a government analyst is summoned by the court, he makes every effort to defend his report by stating that the prescribed protocols were followed and all legal requirements were fulfilled while testing the contraband material.
“Furthermore, summoning of the Analyst and record in the Court and his cross-examination will result into the wastage of the precious time of the Court and the general public and it will also create extra burden on the Government Exchequer. Moreover, it is a common observation that the Government Analysts/Experts are usually not summoned by the Courts and once they are summoned, then they vigorously defend their reports because otherwise, they may face penal consequences/departmental proceedings for the issuance of a defective report.
“I am, therefore, of the view that the provisions of section 510 Cr.P.C, does not provide sufficient statutory safeguard for the protection of the rights and interests of the accused. Even otherwise section 510 Cr.P.C exempts a government Analyst from personal appearance in the Court unless he is summoned by the Court, therefore, it is better even for the Analyst to mention all the details of his test, analysis and their results in his report in order to avoid his summoning by the Court. It will also be better for safe administration of justice, transparency and fair play,” judge said.
