PLJ 2022 Cr.C. (Note) 9
Criminal Procedure Code, 1898 (V of 1898)--
----S. 540--Control of Narcotic Substances Act, (XXV of 1997), Ss. 48 & 9(c)--Criminal appeal--Recovery of narcotic substances--Application of ANF u/S. 540, Cr.P.C. for summoning of Forensic Analyst to appear in Court as PW/CW--It is not understandable that if full protocols were complied with at relevant time then as to why said fact was not mentioned in Reports of Punjab Forensic Science Agency--Although learned Special Prosecutor for ANF has argued before Court that through abovementioned applications under Section 540 of, Cr.P.C., appellants have not been asking for retesting of contraband material rather they have only been praying that Forensic Science Expert/Analyst may be summoned as a prosecution witness or as a Court witness so that he may bring on record that full protocols were complied with or not at time of preparation of their Reports but along with abovementioned petitions under Section 540 of, Cr.P.C., no report showing compliance of full protocols by Forensic Science Expert/Analyst has been annexed to show that full protocols were complied with at relevant time--It is not understandable that if protocols were complied, with at relevant time then as to why same were not mentioned in concerned Reports--Report of Punjab Forensic Science Agency is per-se admissible and normally there is no need to call Expert in witness box--Real function of Forensic Science Expert/Analyst is to prepare report and give his opinion together with test protocols and reasons and to place same before Court so that the Court, on basis of said Report can pass a judgment regarding guilt or innocence of an accused--Forensic Science Expert/Analyst is not a witness of facts and he only gives his expert opinion in order enable Court to reach on independent judgment--Reports furnished in these eases might not fulfill criteria laid down by Hon'ble Supreme Court of Pakistan--Appeal were dismissed.
[Para 6] A, B & C
2019 SCMR 930 and 2018 SCMR 2039 ref.
Mr. Zafar Iqbal Chohan, Special Prosecutor for A.N.F.
Malik Muhammad Aslam, Advocate for Respondent (in Crl. Appeal No. 49969 of 2019).
Mr. Naveed Afzal Basra, Advocate for Respondent (in Crl. Appeal Nos. 42067 of 2019, 50394 of 2019 & 43262 of 2019).
Mr. Nadeem Iqbal Chaudhary, Advocate for Respondent (in Crl. Appeal No. 41247 of 2019).
Mian Mehmood Ahmad, Advocate for Respondent (in Crl. Appeal No. 41249 of 2019).
Mr. Muhammad Usman Gujjar, Advocate for Respondent (in Crl. Appeal No. 43266 of 2019).
Nemo for Respondents (in Crl. Appeal Nos. 50254 of 2019 & 43261 of 2019).
Date of hearing: 18.11.2019.
PLJ 2022 Cr.C. (Note) 9
[Lahore High Court, Lahore]
Present: Malik Shahzad Ahmad Khan and ch. Mushtaq Ahmed, JJ.
STATE--Appellant
versus
ARSLAN WARIS--Respondent
Crl. A. No. 49969 of 2019, heard on 18.11.2019.
Judgment
Malik Shahzad Ahmed Khan, J.--While relying upon the case of 'The State through Regional Director ANF vs. Imam Bakhsh and others (2018 SCMR 2039) whereby 07 appeals and one criminal petition were decided through a single consolidated judgment, we proceed to decide through this single consolidated judgment, the instant appeal bearing Crl. Appeal No. 49969 of 2019 titled 'The State vs. Arslan Waris', as well as, connected appeals bearing Crl. Appeal No. 42067 of 2019 titled 'The State vs. Muhammad Bilal Amin, etc. Crl. Appeal No. 50394 of 2019 tilled The State vs. Muhammad Nawaz. ctc, Crl. Appeal No. 43262 of 2019 titled 'The State vs. Muhammad Awais Akbar, Crl. Appeal No. 41247 of 2019 titled "The State vs. Sardar Ali, Crl. Appeal No. 41249 of 2019 titled The Sate vs Muhammad Qasim, Crl. Appeal No. 43266 of 2019 titled 'The State vs. Muhammad Azam Khan Crl. Appeal No. 50254 of 2019 titled 'The Sate vs. Khyber Khan and 2 others and Crl. Appeal No. 43261 of 2019 titled 'The State vs. Arif Ullah'. as common questions of law and facts are involved in all these appeals. Through the above-referred appeals the appellant/State has challenged the wires of the impugned orders dated 22.08.2019, 01.07.2019, 19.08.2019, 03.07.2019, 26.06.2019, 22.06.2019, 04.07.2019, 22.06.2019 & 02.07.2019 passed by the learned Judge Special Court CNS, Lahore, whereby the applications filed by the appellant/State under Section 540 of Cr.P.C. for summoning of the Forensic Science Expert/Analyst as a Court witness or prosecution witness and recording his evidence regarding compliance of full protocols were dismissed.
2. As per brief facts, different FIRs have been lodged against the private respondents of the abovementioned appeals on account of recovery of contraband materials (narcotics) from their possession. During the pendency of the trials, applications were moved by the appellant/State under Section 540 of, Cr.P.C. for summoning of Forensic Science Experts/Analysts so that the said Analysts/Experts may bring on the record that as to whether or not the protocols were complied with at the time of analysis of the materials/narcotics recovered from the possession of the private respondents/accused. Said applications of the appellant have been dismissed vide the impugned orders of the learned trial Court hence, the present appeals before this Court.
3. It is contended by learned Special Prosecutor for ANF that under Section 540 of Cr.P.C., the learned trial Court was competent to examine or re-examine any witness in order to reach at a just and fair conclusion of the cases. He adds that full protocols were complied with at the time of analysis of the recovered material but details of the said protocols cannot be inadvertently mentioned in the reports issued by the Punjab Forensic Science Agency therefore, in order to reach at a just decision of the cases, Forensic Science Expert/Analyst may be summoned either as a prosecution witness or as a Court witness so that he may explain that as to whether the full protocols were complied with or not at the time of analysis of the materials recovered in these cases; that even the Hon'ble Supreme Court of Pakistan in the case of 'Khair-ul-Bashar vs. The State' (2019 SCMR 930), has observed that in case the veracity of the Report is challenged by the accused or is being examined by the Court, compliance of full protocols can be called for from the Government Analyst and verified; that the impugned orders are not sustainable in the eye of law therefore, the same may be set-aside and the applications under Section 540 of, Cr.P.C., moved by the appellants before the learned trial Court may be accepted as prayed for.
4. On the other hand, these appeals have been opposed by learned counsel for the private respondents on the ground that after different judgments passed by the Hon'ble Supreme Court of Pakistan in respect of identical Reports, the appellants through the abovementioned applications under Section 540 of Cr.P.C., intend to fill in the lacunas in the prosecution case; that no valid reason has been mentioned by learned Special Prosecutor for ANF that as to why the compliance of full protocols was not mentioned at the time of preparation of the Reports by the Punjab Forensic Science Agency; that no Reports have been annexed with the petitions moved by the appellants before the learned trial Court which the appellants intended to produce in evidence through Forensic Science Expert/Analyst; that in the case of 'Khair-ul-Bashar vs. The State' (2019 SCMR 930), the Hun'ble Supreme Court of Pakistan has rejected the request of learned DPG for retesting of the recovered material on the ground that it will amount to fill in the lacunas in the prosecution case; that there is no substance in these appeals therefore, the same may be dismissed.
5. Arguments heard. Record perused.
6. We have noted that in all the abovementioned cases, Reports of Punjab Forensic Science Agency have already been prepared and furnished before the learned trial Court. Through petitions under Section 540 of Cr.P.C. moved by the appellants before the learned trial Court, prayer has been made for summoning of the Government Analyst/Forensic Science Expert as a prosecution witness or as a Court witness so that the said witness may bring on the record that full protocols were complied with at the time of examination of the material/narcotics recovered from the possession of private respondents/accused. It is not understandable that if full protocols were complied with at the relevant time then as to why the said fact was not mentioned in the Reports of Punjab Forensic Science Agency. Provisions of Section 540 of Cr.P.C. cannot be invoked to fill in the lacunas in the prosecution case. We may refer here the case of ‘Khair-ul-Bashar vs. The State' (2019 SCMR 930), wherein it has been observed that "Re-testing of the drug, as argued by the DPG, in case of a deficient report would mount to given premium to the prosecution for its mistakes and lapses. In any case any flaw in the case of the prosecution must only benefit the accused. Sending the alleged drugs for re-testing would be giving another chance to the prosecution to build its case, which is not the role or business of the Court." Although learned Special Prosecutor for ANF has argued before the Court that through the abovementioned applications under Section 540 of Cr.P.C., the appellants have not been asking for retesting of the contraband material rather they have only been praying that Forensic Science Expert/Analyst may be summoned as a prosecution witness or as a Court witness so that he may bring on the record that full protocols were complied with or not at the time of preparation of their Reports but we have noted that along with the abovementioned petitions under Section 540 of Cr.P.C., no report showing compliance of the full protocols by the Forensic Science Expert/Analyst has been annexed to show that full protocols were complied with at the relevant time. As mentioned earlier, it is not understandable that if the protocols were complied with at the relevant time then as to why the same were not mentioned in the concerned Reports. Report of Punjab Forensic Science Agency is per-se admissible and normally there is no need to call the Expert in the witness box. Real function of the Forensic Science Expert/Analyst is to prepare report and give his opinion together with the test protocols and reasons and to place the same before the Court so that the Court, on the basis of the said Report can pass a judgment regarding the guilt or innocence of an accused. Forensic Science Expert/Analyst is not a witness of facts and he only gives his expert opinion in order to enable the Court to reach at an independent judgment. It appears that as the appellants came to the conclusion that the Reports furnished in these eases might not fulfill the criteria laid down by the Hon'ble Supreme Court of Pakistan in the cases of 'Khair-ul-Bashar vs. The State' (2019 SCMR 930) & The State through Regional Director ANF vs. Imam Bakhsh and others' (2018 SCMR 2039) therefore, they moved the abovementioned petitions under Section 540 of, Cr.P.C. for summoning of Forensic Science Expert/Analyst) as a Court or prosecution witness.
7. Keeping in view all the abovementioned facts, we have come to this conclusion that the above-referred impugned orders have rightly been passed by the learned trial Court. Learned Special Prosecutor for ANF has miserably failed to point out any illegality or material irregularity in the impugned orders. In the light of above, there is no substance in these appeals therefore, all the aforementioned appeals are hereby dismissed.
(A.A.K.) Appeal dismissed
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