' IJAZ AHMAD CHAUDHRY, J. This consolidated judgment will dispose of Criminal Appeal No,29 of 2006, filed by Iftikhar Ahmed alias Ali against the order dated 21-1-2006 passed by learned Additional Sessions Judge, Lahore, and Criminal Appeal No,62 of 2006 filed by Zaheer-ud-Din, against the order dated 26-1-2006, passed by the learned Additional Sessions Judge, Lahore through which the applications of the appellants filed before the learned trial Court for summoning of the Chemical Examiner as a Court witness have been dismissed.
2. Briefly the facts are that the appellants in both the appeals are facing separate trials under sections 6 and 9 of Control of Narcotic Substances Act, 1997 and during the pendency thereof the moved applications for summoning the Chemical Examiner for the purpose of cross-examination on the ground that report of Chemical Examiner was not in accordance with the prescribed Form-II provided under Rule 6 of Control of Narcotic Substances (Government Analysts) Rules, 2001 and the same was also lacking the necessary ingredients, which have been dismissed. Through the impugned orders. Hence, these appeals.
3. The learned counsel for the appellants in both the appeals contend that section 36 of Control of Narcotic Substances Act, 1997 provides that the report of the Chemical Examiner should be on prescribed form; that Rules have been framed in this regard which are called as Control of Narcotic Substances (Government Analysts) Rules, 2001 and Rule No,6 thereof provides the details of the Form on which report has to be given, but the said reports of the Chemical Examiner are not in accordance with law and applications moved for summoning of the Chemical Examiner have been dismissed on vague grounds; that the law provides that everything should be done in a particular manner and the appellants are entitled to be treated in accordance with law as per Article 4 of the Constitution of the Islamic Republic of Pakistan, 1973; that reports of the Chemical Examiner were not based on cogent reasons and the case of the appellants will be prejudiced if they are not afforded opportunity of cross-examination on the author of the said reports to bring the true facts on record as proviso to section 510, Cr.P.C. Empowers the learned trial Court to summon the Expert for the purpose of the cross-examination, if it considers necessary; that no cogent reasons have been given by the learned trial Court for disallowing applicants of the appellants. Relies upon 2005- YLR 742 and the judgment of this Court passed in Criminal Appeal No,1463 of 2005 whereby in the similar circumstances the Chemical Examiner was allowed to be summoned for cross-examination.
4. On the other hand, learned Prosecutor for Anti-Narcotics Force/ respondent opposes both the appeals on the ground that reports have been prepared in accordance with law and no illegality has been committed; that the Chemical Examiner was summoned by this Court and according to him the Director, Excise and Taxation has provided the Form for submission of the report by the Chemical Examiner who is following the directions issued by the Director, Excise and Taxation and that the reports were correctly prepared.
5. We have heard the learned counsel for the parties and also gone through the impugned orders and contents of the applications moved by the appellants. The appellants are facing trial under the provisions of Control of Narcotic Substances Act, 1997 which is a special law to be regulated by its own procedure. However, it has been provided in section 47 of Control of Narcotic Substances Act, 1997 that the Criminal Procedure Code is also applicable. No doubt as per section 510, Cr.P.C.
The report of the Chemical Examiner is admissible in evidence without calling the Expert as witness, but proviso of said section authorizes the Court to summon and examine the person by whom such report has been made if it considers necessary. Section 36(2) of Control of Narcotic Substances Act, 1997 also lays down that such report shall be admissible in evidence without formal proof and such vidence shall, unless rebutted, be conclusive proof. So each case has to be taken into consideration on its own merits. In such-like cases the report of the Chemical Examiner is an important piece of evidence to ascertain the nature of the recovered substance. In the present case after perusal of the report we are satisfied that prima facie it has not been prepared as per section 36(1) of the Control of Narcotic Substances Act, 1997 on the prescribed form. The purpose of the report in the said form is to ensure that the" Chemical Examiner gives report after weighing the Charas received by him and also after examination of certain details which have to be given by him in order to ensure that proper care has been taken in arriving at such opinion, which under the law has been declared to be conclusive evidence without formal proof. The law provided that the things to be done in a particular manner should be done in the same manner and any change thereto can cause doubt in its veracity. The learned counsel has rightly relied upon judgment dated 13-10-2005 passed by this Court in Criminal Appeal No,1463 of 2005, which in the similar facts and circumstances was accepted with direction to the learned trial Court to call for the Chemical Examiner as a Court witness and afford opportunity to the appellant for cross- examination. In a similar case, reported in 2005 YLR 742, the appeals were accepted and the applications were allowed to summon the Chemical Examiner for the purpose of cross- examination.
6. We, without adverting to the other merits of the case or declaring whether it is an illegality or irregularity or dilating upon the issue or its importance and whether it has caused any prejudice to the accused, accept both the appeals with direction to the learned trial Court to summon the Chemical Examiner as a Court witness and afford opportunity to the appellants for cross- examination, and the above-said questions will be decided by the learned trial Court at the time of announcement of the main judgment taking into consideration whole evidence on the record.