1999 PLP 870 (YLR)

3. Obviously it was not possible in every case to send the sample of 100 grams because in some cases the recovery was effected of quantity much less then 100 grams. Under the law no one can keep in possession Heroin of any quantity. With a view to clarify that e.g. if 10 grams heroin is recovered from the possession of an accused, although the same amounts to an offence yet according to the Government Analyst no analysis was possible. Consequently it was not possible to pay Rs.2,000 as fee for each sample because financial constraint did not permit the police department to remit such big amount which would become manifolds in case number of samples are despatched to the said Government Laboratory.

4. It has been argued with vehemence that objection raised by the District Attorney, Multan is misconceived and not well founded. Under section 34 of C.N.S.A., 1997 the Federal Government as well as the provincial Government may set up Laboratories for testing the narcotic substances, the possession of which has been made as an offence under the Act.

5. Section 34 of the Act is reproduced for reference.

34. Federal Narcotics Testing Laboratory, etc.‑‑‑ (1) The Federal Government may, as soon as may be after the commencement of this Act, set‑up a Federal Narcotic Testing Laboratory and such other institutes and narcotics testing research laboratories or notify any other laboratory or institute to be a Federal Narcotics Testing Laboratory for carrying out the purposes of this Act. (2). The Provincial Government may, wherever deems appropriate, set‑up Provincial Narcotics Testing Laboratories.

6. In exercise of powers conferred by this section i.e. 34 of the Act, the Federal Government vide S.R.O. 596(1)/97 was pleased to notify the Pakistan Council of Scientific and Industrial Research Laboratories (P.C.S.I.R.) Lahore, National Institute of Health Laboratory, Islamabad, Sindh, Laboratory of Chemical Analysis Karachi, P.C.S.I.R. Laboratory, Karachi, P.C.S.I.R. Laboratory Peshawar and Central Drug Laboratory, 7th Central Street Defence Housing Authority, Karachi and all Narcotics Testing Laboratories set‑up by the Provincial Governments to be the Federal Narcotics Testing Laboratories for the purposes of the said Act.

7. According to the petitioner there remains no doubt or ambiguity that any laboratory set‑up by the Provincial Government is not authorised to test any sample sent by the prosecution agency.

8. The objection has been raised by the District Attorney, as according to him sections 35 and 36 of the Act if read together specify that a Government Analyst would alone be competent to test the substance and submit a report. According to him it is only his report which has been made admissible in evidence without examining the Government Analyst as a witness in Court. Both sections i.e. 35 and 36 are reproduced as under:‑‑ "

35. Government Analyst.‑‑ The Federal Government or a Provincial Government may, by notification in the official Gazette, appoint such persons as it thinks fit, having the prescribed qualifications, to be Federal Government Analysts or, as the case may be, Provincial government Analysts, for such areas and in respect of such narcotic drugs, psychotropic substances or controlled substances as may be specified in the notification.

36. Reports of Government Analysts.‑ (1) The Government Analyst to whom a sample of any Narcotic drugs, psychotropic substance or controlled substance has been submitted for test and analysis shall deliver to the person submitting it, a signed report in quadruplicate in the prescribed form and forward one copy thereof to such authority as may be prescribed. (2) Notwithstanding anything contained in any other law for the time being in force, any document purporting to be report signed by a Government Analyst shall be admissible as evidence of the facts stated therein without formal proof and such evidence shall, unless rebutted, be conclusive. "

9. Under section 35, vide S.R.O. 598(1)/97, the Federal Government has appointed the following persons to be the Federal Government Analyst for the purposes of analysing and testing of the narcotic drugs, psychotropic substances and controlled substances namely:‑‑ (1) Mr. Fahim Uddin Ahmed, Senior Scientific Officer (Chemical) Drug Laboratory, National Institute of health, Islamabad. (2) Mr. Muhammad Akmal Rajput, Scientific Officer, National Institute of Health, Islamabad; and (3) Dr. Chaudhry Muhammad Ashraf, Principal Scientific Officer, Pakistan Council of Laboratory (P.C.S.I.R.), Lahore. The same Officers had previously been declared as Government Analyst under section 32 of Control of Narcotic Substances Ordinance, 1995 vide S.R.0.321(1)

95. The District Attorney considering, that since the public analyst has been appointed, therefore, according to him only he alone was competent to analyse or test the questioned/substance and submit a report. The argument was supported by the fact that section 36 made the report as admissible in evidence without examination of the public analyst as a witness.

10. The objection raised by the District Attorney does not appear to be sound and sustainable. Section 35 of the Act unambiguously authorises the Federal Government to declare any laboratory as testing laboratory and Provincial Government has also been authorised to set up Provincial Narcotic Testing Laboratories. As authorised by the Provincial Government any testing laboratory such as, Laboratory of Chemical Examiner at Lahore and for that matter also at Multan is fully authorised and competent to analyse and test the substances and the Report of the Chemical Examiner has also been made admissible in evidence and his report in the course of any proceedings under the Code may without calling him as a witness be used as evidence in any enquiry, trial or proceedings. The mere fact that the report of the Government Analyst under section 36 of the Act has been made admissible in evidence, therefore, it was considered by the District Attorney to be more appropriate or advisable to obtain report from him, does not appear to be well‑considered and as such cannot be sustained. It has been pointed out during the course of arguments that there is some inconsistency or contradiction in between the three sections i.e. 34, 35 and 36 of the Act on the same subject. It is submitted that when the Government had appointed the Federal Analyst by name then the prosecution or the Investigating Agency as the case may be is bound to refer the sample for examination to the Public Analyst. I think that the argument is devoid of force. A close scrutiny and analysis of all the three sections read together would clearly reveal that under section 34 various laboratories have been set up by the Federal Government and Provincial' Governments who have been authorised and are Competent to carry our the analysis and test the samples referred to them. Apart from these laboratories by virtue of sections 35 and 36 the Government Analyst have been appointed and some Officers who have required qualifications and competency in the subject have been declared as such. In case of any ambiguity or if a challenge is thrown then the matter can be referred to any of the Government Analyst appointed by the Federal or Provincial Government. If the opinion in both cases is in concurrence then there will remain no doubt with regard to the nature of the substance but if in a case there is difference of opinion and the opinion given by any expert from the authorised laboratory is different. then it would be for the Court to accept or reject the opinion referred by the expert or laboratory. Prima facie it appears that a Government Analyst appointed by the relevant Government should carry more weight because they have been appointed over and above the experts working in the laboratories. Since they have been appointed by name and not by virtue of office, therefore, considering their superior qualifications, training and experience they have definitely an edge over the reports submitted by an expert from the Laboratories. Summing up the discussion, it is held that any report given by the Chemical Examiner or by I any expert working in any Narcotic Testing Laboratory is valid and admissible in evidence of course subject to the provisions of, section 510, Code of Criminal Procedure. Before parting with the judgment, it will be pertinent to note over here that the objection raised by the Agency or Police authorities appears to be valid and sound. It is not practically possible that only three Government Analysts appointed by the Federal Government can examine and analyse a large number of samples to be referred to them by various agencies. Unfortunately, a large number, of cases under C.N.S.A. are coming up and it will not be practically possible to refer the samples in all of the cases to Government Analysts. Apart from that it has been clarified by Dr. Chaudhry Muhammad Ashraf himself that in routine analytical work of the heroin samples, the services of the public Analyst may not be availed. However, in case of controversial or complicated cases the Public Analyst can be approached. A small number of Public Analysts have been notified by the Government i.e. only' three which clearly indicates that the reference has to be made to them not for routine samples analysis but only in case of controversy or some ambiguity. It is also noteworthy that whenever any provision of law has to be interpreted it has to be interpreted in a manner which is more conducive to, the interest of justice and also practically possible. Any narrow or restricted interpretation cannot in any manner serve the interest of justice. If the interpretation as made by the District Attorney that the analysis can be carried out only by one of the three Government Analyst is accepted, the setting up of all the testing laboratories by the Federal Government and the Provincial Government under section 34 of the Act would become redundant. Obviously this can never be the intention of legislature.

11. For the. foregoing reasons and discussions, I accept this petition and hold that any result of Testing Analyst who is appointed by the federal or Provincial Government is valid and admissible in evidence. There will be no order as to costs. N.H.Q./R‑86/K Petition accepted.