2005 PLP 742 (YLR)

14. This is here hard to understand that on one side a party intends to rely upon the report of an expert against it's adversary and on the other when the adversary is asking for bringing the author or compiler of the report in witness box for explanation of certain matters pertaining to his report in order to rebut the same but he is being denied the same.

15. Here we have also, no hesitation in saying that the conduct of proceedings on part of a criminal Court must visibly be reflective of its clean and unbiased mind in every sense,

16. In the above peculiar facts and circumstances of the case, it is irreconcilable that how the appellant/accused will be able to meet with the opinion of the expert by producing an evidence of ordinary type.

17. This view of the learned trial Court in requiring him to rebut the report of the expert by some other evidence is not endorsable. This approach of it cant ultimately be prejudicial to his defence.

18. It can be well argued against him ultimately that as to how an ordinary evidence can be preferred over that of the expert on the subject.

19. The fair way was that he if had any reservation about the report of the expert, he might be given proper and reasonable opportunity to rebut the idea of it's authenticity, completeness and accuracy.

20. Here it would also be quite advantageous to mention that law gives way to a person likely to be adversely affected by such report to rebut the same, which though is per se admissible in evidence. In this regard subsection 2 of section 36 of the Act can be quoted here for facility of reference and clarity of view point of ours:‑‑ Section 36(2): "Notwithstanding anything contained in any other law for the time being in force, any document purporting to be a report signed by Government Analyst shall be admissible as evidence of the fact stated therein without formal proof and such evidence shall, unless rebutted, be conclusive".

21. The above quoted provision of the law on the subject makes it abundantly clear that report of expert admitted in evidence, shall be conclusive, unless rebutted. The best and relevant person can be expert himself, who had authored or compiled same and none else.

22. Here we are also conscious of the fact that at any time during the later stage of the proceedings in the case, it can be agitated against him that the best or the relevant person was available to rebut such report but no chance was availed to elucidate or get explanation directly from him in respect of the same. So, in order to avoid any prejudice to the appellant in his defence, it can be the expert, who may be required to enter into witness box to answer any query vis‑a‑vis his report. Here in this regard it may also be mentioned with concern that the law empowers the Court to summon expert, when ever it may be considered so necessary in the interest of justice. In this regard reference can be made to the provision of section 510, Cr.P.C. which reads as under:‑‑ Section 510, Cr.P.C. Report of Chemical Examiner, Serologist, etc.‑ "Any document purporting to be a report, under the hand of any Chemical Examiner or Assistant Chemical Examiner to Government or any Serologist, Finger‑Print Expert or fire‑arm expert appointed by Government (or of the Chief Chemist of Pakistan of the Pakistan Security Printing Corporation Limited,) upon any matter or thing duly submitted to him examination or analysis and report in the course of any proceedings under this Code, may, without calling him as a witness, be used as evidence in any inquiry, trial or other proceeding under this Code: Provided that the Court may, (if it considers necessary in the interest of justice) summon and examine the person by whom such report has been made,)"

23. Here we also consider it relevant and appropriate to refer to the provision of section 47 of the Act, which reads as under:‑‑ Application of the Code of Criminal Procedure, 1898.‑ "Except as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), hereinafter referred to as the Code (including provisions relating to confirmation of a death sentence shall apply, to trials and appeals before a Special Court under this Act."

24. This is thus, quite evident that provisions of the Criminal Code, 1898 are applicable to the trials before Special Court under the Act.

25. So, the appellant when with vehemence consistently is throwing challenge to the accuracy of the report, then it was obligatory upon the learned trial Court to satisfy it's conscience about the same.

26. It may also be mentioned here with concern that the appellant not only at present has challenged the completeness and accuracy of the report of the expert but he even continuously is agitating the same, He on an earlier occasion has requested the learned trial Court to direct the Chemical Examiner to produce his report containing the result as to percentage of morphine, if any, in the substance allegedly recovered from him. His that request was turned down by the learned trial Court vide it's order, dated 8‑3‑2004. He challenged that order in appeal before the learned Division Bench of this Court by way of Criminal Appeal No. 381 of 2004. The learned Division Bench vide the order, dated 18‑3‑2004 has dismissed his appeal mainly with the observation that the evidentiary value of the report of the Chemical Examiner is to be seen or assessed at a proper stage of the trial. This shows that he from the initial stages of his trial is hot pursuing his said plea in respect of the report of the expert.

27. The fair thing is that he may be provided a chance to enable him to establish his plea in that behalf. His cause should not be stifled down by a reason, which is neither sound nor appealing on the face of it.

28. We are, therefore, convinced that to secure the ends of justice, he should have been given a chance to question the report of the Chemical Examiner by subjecting H him to cross‑examination in relation to the same. In that an eventuality, no prejudice is likely to be caused to the prosecution as it shall also have a chance to cross‑examine him.

29. It may also be mentioned here with some significance in this context that the prosecution is not that much right in saying that he essentially is a prosecution witness. It is because of the fact that prosecution neither cited him as witness nor had ever intended to call him as a witness to prove his report. It is obviously for the reason that his report is in it's favour and per se admissible in evidence. It is the accused, who is likely to be affected in case of acceptability of the same. He, therefore, can be well within his right to challenge it's correctness. It, therefore, is neither alien to law nor strange, if he may be allowed to rebut the same.

30. In these circumstances, the impugned order refusing to summon the Chemical Examiner, Lahore as Court witness is wrong as his evidence seems essential and material for just decision of the case. So, interference with the same at the end of this Court is called for.

31. We, therefore, accept this appeal, set aside the impugned order and grant the application under section 540, Cr.P.C. read with section 36 of the Act of the appellant and direct the learned trial Court to summon the Chemical Examiner, Lahore and examine him as Court witness.

32. However, it is here made clear that it should be with all promptitude and dispatch and no untoward delay should occur in the matter.

33. It shall also decide the case independently on its own merits and in accordance with law without being influenced, whatever, has been said above. N.H.Q./R‑56/L Appeal accepted.