ISLAMABAD:
Supreme Court Justice Malik Shahzad Ahmad Khan has observed that the practice of planting fake drug recoveries against innocent persons – including politicians belonging to opposition parties as well as persons who have enmity with police officials or influential persons – is common in our society.
“The practice of planting false recoveries of narcotics against innocent persons including politicians belonging to opposition parties as well as persons having enmity with police officials or influential persons is common in our society, therefore in order to exclude or at least minimize the possibility of false involvement of any innocent person in cases of control of the N Act, 1997 (the Act, 1997), the provisions of the Act ibid and rules issued thereunder shall be interpreted narrowly,” 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 Narcotic Drugs Control Act, 1997, Rule 967 and Ru.
The apex court constituted a larger bench to resolve the controversy arising from several inconsistent judgments.
In 2015, the court ruled that it was mandatory to mention the full minutes in the report and that failure to do so would damage its probative value. But in another case the Supreme Court had taken the opposite position.
The majority judgment held that the requirement under unamended Rule 6 of the 2001 Rules, which required government analysts to submit test results together with full details of the tests used, was not mandatory but cataloguing.
However, Justice Khan dissented from the majority opinion and held that it is the constitutional right of every citizen of Pakistan under Article 4 and 10-A of the Constitution to be treated in accordance with the law and to have a fair trial and due process.
“Therefore, it appears from the Articles of the Constitution that no act shall be done injurious to the life, liberty, body, reputation or property of any person except in accordance with the law, as the SC judge observed that the main purpose of the Narcotic Drugs Control Act is to prevent the use, sale, purchase, transportation etc. the same will create doubt in the prosecution case which will result in the acquittal of the accused on the spot and as such failure to comply with Rule 6 of rules, 2001, defeat the purpose of the principal Act, i.e. Act, 1997.
“Similarly, failure to comply with rule supra will also prejudice the case of an accused who might have been falsely implicated in a drug case.
“Similarly, it is also laid down in the Articles of the Constitution that in any criminal charge against a person he has the right to a fair trial and fair trial.
“It is clear that under the Constitution every citizen of Pakistan is entitled to be tried in accordance with the law, due process and fair trial,” the Supreme Court judge said.
“This Court has time and again in its various judgments held that since very severe penalties are prescribed for the offenses under the 1997 Act, the provisions of the said Act and the rules made thereunder have to be strictly construed. 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 their experts as well as experts should be followed in connection with the procedure etc. spirit,” it added he.
According to Justice Khan, it would be extremely risky to hold that failure to mention full protocols does not in itself invalidate the government analyst’s report, 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 of the decision before this larger bench is that “on the mention of complete protocols (i.e. details of the test[s] used, steps taken during said tests and the results of the test[s]) in the report of the government analyst is mandatory or not, and if the report does not disclose the full records, then whether it will destroy its probative value.”
The Supreme Court judge noted that whenever a government analyst is summoned by the court, he goes out of his way to defend his report by saying that the prescribed protocols were followed and all legal requirements were met while testing the contraband.
“Furthermore, summoning the analyst and the record in the court and his cross-examination will result in wastage of the precious time of the court and the public and it will also create an additional burden on the exchequer. Moreover, it is a common observation that the government analysts/experts are usually not summoned by the courts and once summoned for their report, they can otherwise defend themselves. Consequences/departmental case for filing defective report.
“I am therefore of the view that the provisions of Section 510 Cr.PC do not provide sufficient statutory protection for the protection of the rights and interests of the accused. Even otherwise, Section 510 Cr.PC exempts a government analyst from personal appearance in court unless he is summoned by the court, therefore it is better for the analyst himself to submit all analyzes and findings of his men in his warrant, to avoid all analyzes and findings of his men. summoning by the court It will also be better for sure administration of justice, transparency and fair play,” the judge said.
