ISLAMABAD:
Supreme Court Justice Malik Shahzad Ahmad Khan observed that the practice of staging fake drug recoveries against innocent people – including politicians belonging to opposition parties, as well as individuals who have enmity with police officers or influential people – is common in our society.
“The practice of making false recoveries of narcotics from innocent persons, including politicians belonging to opposition parties, as well as persons hostile to police officials or influential persons, is common in our society. Therefore, in order to exclude or at least minimize the possibility of false implication of any innocent person in cases registered under the provisions of the Control of Narcotic Substances Act, 1997 (1997 Act), the provisions of the ibid Act and the rules made thereunder be construed strictly,” Justice Khan said in his 14-page dissenting opinion seeking to decide several questions of law regarding the admissibility of forensic expert reports under Section 36 of the Narcotic Substances Control Act, 1997 and Rule 6 of the Rules, 2001.
The apex court was a larger forum to resolve the controversy arising from several inconsistent judgments.
In 2015, the court ruled that mentioning the full protocols in the report was mandatory and that failure to do so would vitiate its probative value. However, in another case, the Supreme Court took a contrary view.
The majority judgment held that the requirement in 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 indicative.
Justice Khan, however, disagreed with the majority opinion and held that every citizen of Pakistan has a constitutional right under Articles 4 and 10-A of the Constitution to be treated in accordance with the law and to enjoy a fair trial and due process.
“It is therefore clear from the articles of the Constitution that no action prejudicial to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law. The SC Judge observed that the main object of the Control of Narcotic Substances Act is to prevent the use, sale, purchase, transportation etc. of narcotic substances and as such, non-compliance with Rule 6 of the Regulations, 2001 would amount to defeats the purpose of the principal Act, namely the 1997 Act.
“Similarly, non-compliance with the above rule will also prejudice the case of an accused, who may have been falsely implicated in a narcotics case.
“Similarly, the articles of the Constitution also provide that in any criminal charge brought against a person, he or she shall be entitled to a fair trial and due process.
“It is clear that under the Constitution, every citizen of Pakistan has the right to be tried according to law, to a fair trial and due process,” the top judge said.
“This Court has repeatedly held in its various judgments that since very severe penalties are provided for offenses under the 1997 Act, the provisions of the said Act and the rules made thereunder must therefore be strictly construed. It has also been repeatedly held by this Court that it is in the interests of justice that the relevant provisions of the Act dealing with procedure, as well as furnishing of expert report etc., should be followed in letter and spirit,” he added.
According to Justice Khan, it would be very risky to consider that the failure to mention the full protocols does not, in itself, invalidate the government analyst’s report, and that simply mentioning the names of internationally recognized tests in the report would amount to “full and sufficient compliance” with the 2001 rules.
He said the main issue to be decided before this wider tribunal was “whether the mention of full protocols (i.e. details of the test[s] applied, the measurements taken during said tests and the results of the tests[s]) in the government analyst’s report is mandatory or not and if the report does not disclose the protocols in full, then it will be necessary to ask whether it vitiates its probative value.”
The Supreme Court judge noted that in different cases, whenever a government analyst is summoned by the court, he strives to defend his report by asserting that the prescribed protocols were followed and all legal requirements were fulfilled while testing the contraband material.
“Further, summoning the analyst and the file before the Court and cross-examining him will result in wastage of valuable time of the Court and the general public and will also create additional burden on the exchequer. Further, it is common to observe that government analysts/experts are generally not summoned by the courts and once summoned, they vigorously defend their reports as otherwise they may face penal consequences/departmental proceedings for issuing a defective report. report.
“I am, therefore, of the opinion that the provisions of Section 510 Cr.PC do not provide sufficient legal safeguard for the protection of the rights and interests of the accused. Even otherwise, Section 510 Cr.PC exempts a government analyst from personally appearing before the court unless he is summoned by the court. It is therefore preferable that the analyst should mention all the details of his test, analysis and their results in his report so as to avoid his summons by the court. court This will also be preferable for safe administration of justice, transparency and fair play,” the judge said.
