2002 PLP 3822 (YLR)

(II) Mr. Muhammad Akam Rajput, Scientific Officer, National Institute of Health, Islamabad; and (III) Dr. Ch. Muhammad Ashraf, Principal Scientific Officer, Pakistan Council for Scientific Industrial Research Laboratory (PCSIR), Lahore.

8. Section 36 of the Act prescribes the procedure for the delivery of the test report prepared by the Government Analyst and also the admissibility as evidence of the fact stated in the said report without its formal proof.

9. In the instant case the test was carried out in the Forensic Science Laboratory, Crime Branch, N.‑W.F.P., Peshawar, vide Exh.PL, dated 8‑5‑1999. Looking at the report in wake of section 34 and section 35 of the Act, neither this Laboratory has been notified to be Federal Narcotics Testing Laboratory nor the Chemical Examiner, namely, Ahmad Mustafa, the name as disclosed during the hearing of the appeal, has been notified to be the Government Analyst through the aforesaid Notification S.R.O. No.596(I)/97 and S.R.O. No.598(I)/97.

10. In order to verify the status of the said Laboratory and also the competency of the Chemical Examiner to examine the material, it was felt proper to hear the Advocate‑General/the Special Prosecutor on the point, the case was fixed again for hearing. After not being satisfied with their contentions, Ahmad Mustafa, DSP, Chemical Examiner, was summoned. Ahmad Mustafa has attended the Court and after getting some time on some dates to clarify the point with regard to the establishment of the said Laboratory and also any notification either by the Federal or by the Provincial Government notifying it to be a Narcotics Testing Laboratory, he produced three Notification, all are, dated 9‑6‑2001 (1) Notification No.SO(P.I) HD/3‑2/97 with regard to the Forensic Science Laboratory, Crime Branch, Peshawar to be declared as a Provincial Narcotics Testing Laboratory set up by the Provincial Government with effect from 11‑7‑1997. (2) Notification No. SO(P‑I)/HD/3‑2/97 with regard to the appointment of Ahmad Mustafa, Deputy Superintendent of Police (DSP) to be Chemical Examiner and Serologist w.e.f. 8‑8‑1978. (3) Notification No. SO(P‑I)/HD/3‑2/97 with regard to the appointment of Ahmad Mustafa, Deputy Superintendent of Police already performing the duties of Chemical Examiner and Serologist as Provincial Government Analyst w. e. f. 11‑7‑1997 which are reproduced below respectively. GOVERNMENT OF N.‑W.F.P., HOME AND TRIBAL AFFAIR DEPARTMENT. Dated Peshawar, the 9th June, 2001. No. SO (P‑I)/HD/3‑2/97. In pursuance of the Provisions contained in subsection (2) of section 34 of the Control of Narcotic Substances Act, 1997 (XXV of 1997), the Government of the North -West Frontier Province is pleased to direct that the Forensic Science Laboratory of the Police Department at Peshawar shall, for all intents and purposes of the said Act, be also deemed to be Provincial Narcotics Testing Laboratory, set up by the Provincial Government with effect from 11th July, 1997. Secretary to Government of N.W.F.P, Home and Tribal Affairs Department, N.‑W.F.P, Peshawar. Government of N.‑W.F.P. Home and Tribal Affairs Department No. SO(P‑I)HD/3‑2/97 Dated 9th June, 2001. Government of N.‑W.F.P., is pleased to notify Deputy Superintendent of Police, Ahmad Mustafa M.Sc. (Biochemistry), LL.B. already performing the duties of Chemical Examiner and Serologist in Forensic Science Laboratory of Police Department, N.‑W.F.P., since 8‑8‑1978 is hereby appointed and declared as notified Chemical Examiner and Serologist to the Government of N.‑W.F.P., with effect from 8‑8‑1978 for the purpose of section 510, Cr.P.C. Secretary to Government of N.‑W.F.P., Home and Tribunal Affairs Department. Government of N.W.F.P. Home and Tribal Affairs Department. Dated Peshawar the, 9th June, 2001. No. SO(P‑I)HD/3‑2/97. In pursuance of the Provisions contained in section 35 of the Control of Narcotic Substances Act, 1997 (XXV of 1997), the Government of the North‑West Frontier Province is pleaded to appoint Mr. Ahmad Mustafa, Deputy Superintendent of Police, who possesses the prescribed qualification and is already performing the duties of Chemical Examiner and Serologist in the Forensic Science Laboratory of the Police Department, as the Provincial Government Analyst with effect from the 11th July, 1997, for the whole of N.‑W.F.P., and PATA and in respect of narcotics and other psychotropic drugs prescribed in the Act. Secretary to Government of N.‑W.F.P, Home and Tribal Affairs Department.

11. Facing this situation the learned counsel for the appellant has contended that these Notifications were issued on 9‑6‑2001, luring the hearing of the appeal, while the occurrence has taken place on 18‑4‑1999 and the tests were carried out on 8‑5‑1999 would be having no retrospective effect as at that time the Laboratory had not been declared the Narcotic Testing Laboratory and similarly the Chemical Examiner has also not been notified at that time to be the Government Analyst and the subsequent Notification would not make right the wrong, already committed.

12. In a similar situation the question as to whether retrospective effect can be given to a Notification with regard to the appointment of Chemical Examiner to cover a report which was made by Chemical Examiner prior to the notification, arose in a case Muhammad Shafi v. The Crown (PLD 1949 Lahore 175) whereby the Imperial Serologist at Calcutta India was appointed as Chemical Examiner to all the Province of Pakistan and capital of federation by Notification, dated 28/29th March, 1949, w.e.f. 15th August, 1947 and which question was answered in the positive. The relevant extract of the judgment reproduced below:‑‑ "The question is whether this notification would have retrospective effect so as to cover a report which was made by the Chemical Examiner to the Government of India in August, 1948. From the language of section 510 of the Code of Criminal Procedure it will have been noticed, that any document purporting to be a report under the hand of a Chemical Examiner to Government may be used as evidence and since at, the present date the Imperial Serologist at Calcutta is Chemical Examiner to the Government of all the Provinces of Pakistan, the report which is before us today should be construed as a report by the 'Chemical Examiner to Government' and admitted in evidence, provided it purports to be under the hand of a Chemical Examiner."

13. In another case Muhammad Ashraf v. The State (PLD 1959 (W.P.) Peshawar 176), on the object of the learned counsel for the accused over the admissibility of report of Inspector of Explosive under section 510, Cr.P.C. and who (the Inspector) had been declared to be a Chemical Examiner to the Government it was held that "Any person holding any post if he is declared to be a Chemical Examiner to the Government, becomes a Chemical Examiner to the Government and his report comes to fall within the ambit of section 510 of the Code of Criminal Procedure".

14. In the instant case the official who has examined the material has been notified to be a Chemical Examiner to the Government and also Government Analyst, though subsequently yet, at the relevant time he was also holding a post of the incharge of Forensic Science Laboratory and dealing with such‑like matter since long.

15. A heavy reliance was also placed by State counsel on a judgment in case of Rab Nawaz, S.H.O. v. The State and another (1999 YLR 870). In the said case a controversy arose over the opinion of the District Attorney, Multan who was asking the Investigating Officer to get the material examined from the Government Analyst instead of the Chemical Examiner in view of sections 34, 35 and 36 of the C.N.S.A. After discussing every aspect of the case, the Court held that if the sample is examined by an from the authorised Laboratory and on behest of the accused, putting a challenge to the authenticity of the said report, the same requires to be re‑examined by a Government Analyst appointed under section 36 and if both concurred in their opinion then the same be taken as correct when the same is used in evidence. However, in case of, difference of opinion weight ought to be given to that of the public analyst: The learned Judge while summing up the discussion held that any report by the Chemical Examiner or by any Expert working in any Narcotic Testing Laboratory is valid and admissible in evidence of course subject to the provision or section 510, Code of Criminal Procedure. In the absence of any challenge to his (Chemical 'Examiner's) qualification, experience and the requisite training, which if raised in any case would be seen, the contents of the report are admissible under section 510, Cr.P.C.

16. The learned counsel for the appellant has contended that there is delay in sending of the sample to the Laboratory for chemical analysis and moreover the person who has taken sample was not produced as a witness to confirm the handing over of the sample in the Laboratory. Both these submissions have got also no force in them. The sample which was taken was duly sealed and nothing has been brought on record even during the cross examination of the witnesses of in the defence that either the sample was tampered with or it is not the same which has been sealed and sent to be the one relating to the case. The delay in dispatching of the contraband articles is of no consequence as it is very short and in the absence of any evidence that the same were, substituted. Reliance can be placed on a case Sarwar and others v. The State (1987 SCMR 960), wherein it was held that the delay of some days in dispatching of material recovered would not itself be a reason for rejection of such recovery. In another judgment Sultan and another v. The State (2000 SCMR 1818), it was held that when the parcel had not been manipulated or tampered no adverse inference could be drawn against the prosecution.

17. The overall emphasis of the appellant at the trial was, as evident from the trend of cross‑examination of the witnesses, his statement under section 342, Cr.P.C. and statement recorded on Oath under section 340(2), Cr.P.C. over the non‑recovery of the articles from his possession but not on the nature of the articles. In the cross examination of P.W.3 to a question put on behalf of the appellant it was stated "it is incorrect to suggest that heroin powder was actually recovered from the possession of one Parizat Lady, but she was set free and the accused was falsely roped in this case". In his statement recorded under section 342, Cr.P.C. to a question the appellant answered to the following effect:‑‑ "As nothing was recovered from my possession, thus I am totally unaware about the report of FSL. " In his statement recorded under section 340(2), Cr.P.C. he has stated on oath "and when reached near Kund the customs officers entered the bus and found a bag being possessed by Mst. Parizat and when searched, it contained heroin, but later on with the connivance of local police the said Mst. Parizat was set free and I have falsely been implicated in the present case".

18. In view of his stand taken by him at the trial not challenging the nature of the article not to be a heroin but questioning its recovery from him, all the objections with regard to authenticity of the report of the Chemical Examiner fall to the ground.

19. The learned counsel for the appellant has further contended that the appellant in his statement has categorically denied even on Oath (by swearing in the name of Allah) that the contraband article does not belong to him but his this portion of the statement was not challenged in the cross‑examination and the same be taken as correct. Reliance was placed Malik Muhammad Iqbal v. The State (1987 PCr.LJ 247) and Muhammad Ramzan v. The State (1996 PCr. LJ 1076(1). However, his this submission is not sustainable as the prosecution in addition is producing sufficient evidence against the accused with regard to the recovery of heroin from his possession, has questioned him thorough with the main aim and purposes that was deposing was not correct recovery has been effected possession.

20. Moreover, there may be some technical lacuna or irregularities committing during the investigation but those by themselves not sufficient for the acquittal or the accused. Reliance may be placed on Abdul Majid v. State (PLJ 1996 FSC 274), wherein it was observed that there is much difference between a doubt and technical lacuna and this cannot be a guarantee for acquittal.

21. In the narcotic case the Hon'ble Supreme Court in case Munawar Hussain alias Bobi and 2 others v. The State (1993 SCMR 785) has held that approach of the Court should be dynamic and it should over look technicality in the larger interest of the Country and the public at large and the Court has to consider the entire material on record as a whole and if it is convinced that the case is proved, conviction should be recorded. Relevant portion is reproduced below:‑‑ "The Courts cannot expect in cases of smuggling of narcotics, the evidence of the nature, which is generally available in an ordinary criminal case, as the persons who indulge in the above nefarious activities are more organized, affluent and influential and therefore, therefore, generally, they manage to cause dents in the prosecution evidence. In such like cases, which are not only damaging the image of the nation in the comity of nations, but are making our young generation addicts to narcotics the Court's approach should be dynamic and they should overlook technicalities in the larger interest of the Country and the public at large. The Court is to consider the entire material on record as a whole and if it is convinced that the case is proved, conviction should be recorded."

22. The upshot above discussion is that prosecution has been able to prove its case beyond any doubt and learned trial Court has rightly arrived at the impugned conclusion by holding him guilty. However, the quantum or sentence require consideration. The quantity of one Kilogram heroin is recovered in the instant case and the punishment provided under section 9(b) is "imprisonment which may extend to 7 years and shall also be liable to fine". The maximum sentence of 7 years has been awarded by the trial Court. According to the proviso to section 9(c) if the quantity exceed 10 kilograms the punishment shall not be less than imprisonment for life indicative of the fact that in case of lesser quantity, the lesser punishment would be sufficient and measuring on the said scale four years imprisonment would be proper to meet the ends of justice, keeping in view the circumstances of the case and particularly the fact that nothing has been brought on record by the prosecution that the appellant had been previously involved or convicted in such like cases. For the reasons what have been discussed above, the appeal is partially accepted and while maintaining the conviction of the appellant, the sentence of seven years R.I. is reduced to four years R.I. and also keeping intact the imposition of fine or Rs.20,000 the appellant in default of payment of fine, shall suffer six months S.‑I. with benefit of section 382‑B, Cr.P.C. as extended, by the trial Court. H.B.T./594/P Order accordingly.