Ch. Iftikhar Hussain, J.--Appellant Rehmat Ali through the instant appeal has called in question the order dated 22.4.2004 recorded by the learned Additional Sessions Judge, Lahore whereby he has declined the appellant's request to summon the Chemical Examiner, Lahore for elucidation of his report and explanation of certain matters vis-a-vis the same.
2. Briefly the facts relevant for the disposal of the instant appeal are that the appellant is accused in the case FIR No, 90 dated 2.4.2003 registered under Section 6/9 of the Control of Narcotic Substances Act, 1997 with Police Station Ghazi Abad, Lahore. He is facing trial in the same for having in his possession 06-Kilogram of Poppy straws when was apprehended by a party comprising of police and excise officials on 2.4.2003. The prosecution evidence is being recorded in the case against him. He on 22.4.2004, had moved the application under Section 540, Cr.P.C. read with Section 36 of Act supra before the learned trial Court for summoning the Chemical Examiner, Lahore as Court witness to rebut his report as envisaged by Section 36 of the Act.
3. The learned trial Court after hearing the parties dismissed his said application with the observation that he can rebut the report by summoning his some other independent evidence.
4. He feeling himself aggrieved of the same has challenged the impugned order dismissing his application for the purpose.
5. It has been contended on his behalf that the report of the Chemical Examiner is not complete and accurate as it contains not the necessary details in respect of the constituents of the alleged narcotics and so he should have been provided with an opportunity to rebut the same and that would be possible only by summoning the expert as Court witness; that the learned trial Court by declining to accede to his said request has in fact shut the door of justice on him; that the reason accorded by it in declining his request is really novel as how the evidence of an expert can be rebutted by an ordinary evidence or that of a layman and in such matter the expert would be the only relevant person/witness to explain and elucidate his report vis-a-vis his view point that the same is incomplete and inaccurate; that the law has provided scope for person throwing challenge to expert's report to rebut the same and in this regard reference has been made to subsection (2) of Section 36 of the Act; and that the refusal of the learned trial Court to accord acceptance to his such request in fact is likely to occasion great miscarriage of justice to him and prejudice in his defence ultimately.
6. As against the same, the learned counsel for the Respondent No, 1 the State has vehemently contended that the report of the expert is per-se admissible in evidence as prescribed by Section 36 of the Act; that the appellant, if has any reservation about the expert's report, he may rebut the same by his any other evidence, if so considered advisable and for that matter it is not necessary or required to summon the Chemical Examiner as Court witness because he is a prosecution witness and in such an eventuality, there is likelihood of prejudice to it's case; and that the reason advanced by the learned trial Court in turning down his request for the purpose is sound and valid in law.
7. We have carefully considered the submissions made from both the sides with the help of the copies of the record annexed to the appeal.
8. This is evident from the submissions advanced on behalf of the Respondent No, 1 the State before this Court and the copies of the record available with the instant appeal that the prosecution intends to rely upon the report of the Chemical Examiner received in the case against the appellant. The copy of that report is available with the instant appeal. The prosecution normally relies upon such report of Chemical Examiner in cases like the one in hand to support it's case against accused. The report of the Chemical Examiner in the instant case is to the effect that the packet containing the sample of the narcotics allegedly recovered from the appellant is "Post". On the reverse of the form M-99 meant for the purpose, the Chemical Examiner has mentioned the constituents/ingredients of the "Post". The plea of the appellant is that report is neither complete nor accurate. He is seeking chance to establish or prove the same.
9. Here it may be mentioned with concern with the fate of the case of both the sides is very much dependent upon the answer to such question. The question of reliability or otherwise of this report can go deep into the root of the case of either of the sides.
10. Here we may mention that supreme object with Court always is to administer even handed justice to parties to a criminal case before it.
11. It in order to achieve this object neither should unreasonably lean in favour of a party nor deprive other of due right to offer defence. It must keep the scale of justice even to both sides. It also must decide cases on merits but the providing fair chance of projecting of view point to every one. The act of Court or conduct of proceedings must be so just and transparent reflecting complete satisfaction of parties over the same. They may be extended opportunity to establish their respective view points with all convenience and dispatch and in accord with the accepted norms of justice.
12. It also here goes without saying that approach of Court should not be prejudicial or biased to anyone demonstrating unnecessary latitude to one and deprivation to other.
13. The learned trial Court in turning down the appellant's request has accorded reason that he if at all intends to rebut the report of Chemical Examiner, he the can do so by his some other independent evidence.
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 can 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 effected 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 our's:-- 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 facts stated therein without formal proof and such evidence shall, unless rebutted, 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 stag? 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 Court, 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 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 delays 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, what ever, has been said above.