MIRZA VIQAS RAUF, J:- The instant appeal is directed against the order dated 19.09.2013 passed by the learned Additional Sessions Judge Chiniot, whereby the application filed by the appellant, for sending the whole recovered substance to the Chemical Examiner for its chemical examination, has been dismissed.
2. Precisely the facts necessary for the adjudication of instant appeal are that on the basis of alleged recovery of 3575 grams heroin the appellant is facing trial before the learned Additional Sessions Judge Chiniot in case FIR No.477 dated 13.11.2012 offence under Section 9 (c) of The Control of Narcotic Substances Act, 1997 registered at Police Station Rajooa District Chiniot. During the pendency of the trial the appellant moved an application before the learned Trial Court seeking direction for sending the whole recovered substance for Chemical analysis to the Chemical Examiner for determining its purity, which was refused by way of order dated 19.09.2013.
3. Learned counsel for the appellant contended that the learned Trial Court, while rejecting the application of the appellant has committed patent error and the impugned order is not tenable under the law. He maintained that for meeting the ends of justice the recovered substance shall be transmitted to the Chemical Examiner for its analysis to determine the purity of the substance and the appellant has a right to apply for sending the whole recovered substances for the said purpose. In support of his contentions, learned counsel for the appellant has placed reliance on case titled "ALI MUHAMMAD Vs. The STATE' (PLD 2010 S.C 623)
4. Conversely, the learned Deputy Prosecutor General submitted that the application filed by the appellant was not maintainable. He further contended that the learned Trial Court has rightly rejected the said application as to this effect report of Chemical Examiner is already available on the record which clearly reflects that the recovered substance is Narcotic Drug which clearly comes within the definition of the "Narcotic Drug" as defined in The Control of Narcotic Substances Act, 1997.
5. We have heard the learned counsel for the appellant, as well as the learned Deputy Prosecutor General and perused the record.
6. Before dilating upon the merits of the case it would be advantageous to first of all go through the relevant provision of law dealing with the subject. We observe that the application filed by the appellant is clearly silent in this respect as it does not disclose the relevant provisions of law under which the same was moved. Even the learned counsel for the appellant has failed to point out any specific provision in this regard. We have examined the relevant Statute for the said purpose i.e, The Control of Narcotic Substances Act, 1997. We are of the view that for the Chemical Analysis of the recovered Narcotics, Section 36 is the relevant provision of law, which is reproduced below:- S.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 laws for the time being in force, any document purporting to be a 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."
7. Bare perusal of the above referred provision of law postulates that for the purpose of conducting the chemical analysis, only a small sample from the recovered substance is sufficient to determine as to whether the same is narcotic drug or not as defined in The Control of Narcotic Substances Act, 1997. The above provision of law does not prescribe any specific quantity for the said purpose.
In this context reliance can be placed on "ZULFIQAR AHMAD Versus THE STATE" (2006 SCM R 800), wherein it is held that only sample of one gram heroin is sufficient for chemical analysis.
8. In addition to the above, to carry out the purpose of the Act the Government has also framed The Control of Narcotic Substances (Government Analysts) Rules, 2001 in terms of Section 77 of the Act ibid. For the proposition in hand Rule 4 is the relevant rule which reads as under:-
4. Despatch of sample for test or analysts.----
(1) Reasonable quantity of samples from the narcotic drugs, psychotropic substances or the controlled substances seized, shall be drawn on the spot of recovery and dispatched to the officer in charge of nearest Federal Narcotic Testing Laboratory, depending upon the availability for test facilities, either by insured post or through special messenger duly authorized for the purpose.
(2) Samples may be dispatched for analysis under the cover of a Test Memorandum specified in Form-I at the earliest, but not later than seventy-two hours of the seizure. The envelope should be sealed and marked "Secret Drug Sample/Test Memorandum."
The examination of the Rule ibid also clearly reflects that there is no such provision requiring the sending of whole recovered Narcotic Substances to the Chemical Examiner for its determination as such. However, this aspect has been elaborately discussed by the Hon'ble Supreme Court of Pakistan in the case of "Amer Zeb Vs. The State" (PLD 2012 S.C 380)
9. The appellant perhaps has moved the application on the analogy contained in Section 3 of The Control of Narcotic Substances Act, 1997 which is reproduced below:- "3. Calculation of percentage in liquid preparation.-- The Federal Government may make rules prescribing the methods by which percentages in the case of liquid preparations shall be calculated for the purposes of clauses (g), (h) (t) and (u) of section 2: Provided that unless and until such rules are made, such percentages shall be calculated on the basis that a preparation containing one per cent of a substance means a preparation in which one gram of the substance, if a solid, or one milliliter of the substance, if a liquid is contained in every one hundred milliliters of the preparation, and so in proportion for any greater or less percentage"
10. It is evident from the above provision of law that for the purpose of calculating the percentages in the case of liquid preparations for the purpose of narcotic drugs defined in Section 2(g), (h), (t) and (u) of The Control of Narcotic Substances Act, 1997 unless the rules are framed for the said purpose the same shall be calculated on the basis of manner prescribed in the proviso to Section 3 of the Act ibid. Now Section 2(g), (h), (t) and (u) provides the definition of "coca derivative", "coca leaf", "opium" and "opium derivative". Thus the percentages can only be determined in case of liquid preparations of narcotic drugs defined in Section 2(g), (h), (t) and (u) as detailed above.
From the bare reading of above provision of law there can be no second opinion that the case of the appellant is even not covered under the parameters laid down in the said provision, so the appellant's case even do not qualify for the same. Guidance in this regard can also be sought from the case of "THE STATE VS. AMJAD ALI" (PLD 2007 S.C 85) wherein the Hon'ble Supreme Court of Pakistan while dealing with somewhat similar issue has held as under:- "4. Instances are not unknown and are in fact increasing by the day, where unscrupulous litigants manoeuver replacement of the substances and articles deposited in the Malkhana; then make prayer for the re-examination of the substance and the result obviously is that the narcotic substance which had already been examined/tested as a narcotic substance was found to be something else. Such an immoral practice was gaining momentum as a result whereof the criminals were securing their acquittal through dishonest means. It was about time the learned Courts came alive to the said clandestine modus operandi adopted to screen offenders and made sure that once a substance had been tested then extraordinary reasons must exist and must be given before directing fresh examination of such a substance."
11. We have noted that the question of sending the whole case property to the Chemical Examiner for report in order to determine its nature and purity for the first time was discussed by the Hon'ble Supreme Court of Pakistan in the case titled "ALI MUHAMMAD and another Vs. THE STATE" (2003 SCM R 54) but even "in that case it was observed that:- " In case the appellants' defence would have been that contains of entire case property so recovered was not Charas they could have made an application to the trial Court or before the High Court for re examination of the entire case property which was also produced in the trial Court as Article 'A' having not done so, such plea cannot be said to have merit and substance considering also that the said plea being plea of the fact, would require detailed enquiry and re- examination of the narcotic substance which cannot be gone into by this Court at this stage."
It is evident that definite findings were not given to this effect that under what circumstances and in case of which narcotic drug, psychotropic substance or controlled substances such application will lie. Whereas in the judgment rendered in the case of "THE STATE VS. AMJAD ALI" (PLD 2007 S.C 85), the Hon'ble Supreme Court of Pakistan has deprecated such practice and held as under:- "Courts were to curb such clandestine modus operandi adopted to screen offenders and make sure that once a substance had been tested then extraordinary reasons were to exist before directing fresh examination of such substance."
The above view was even further reiterated by the Hon'ble Apex Court in the case of "MUHAMMAD ASLAM (AMIR ASLAM) and others versus. DISTRICT POLICE OFFICER, RAWALPINDI and others"(2009 SCMR 141)
12. We have also perused the judgment cited by the learned counsel for the appellant and with all reverence we observe that the facts in the said case were entirely different from the case in hand as in the said case the case property was destroyed without any notice to the accused. So in our humble view the said judgment is of no help to the case of the appellant, as each case is to be decided on the basis of its own facts and circumstances. We are inclined to observe that if such a practice is allowed then the drug paddler will use the same in an oppressive manner for deriving all possible benefits therefrom and it will become very easy and convenient for them to procure the report of their own choice and circumvent the process of law. In such an eventuality the fate of the prosecution case would be determined by the Chemical Examiner rather than the courts established for the said purpose which is never the object and purpose of law.
13. Since there is only Section 3 of the Control of Narcotic Substances Act, 1997 which prescribes the mode for determining the percentages and that too in case of liquid preparations only in case of "coca derivative", "coca leaf", "opium" and "opium derivative", so we hold that the case of the appellant does not fulfill the preconditions laid therein, thus the application was not maintainable at all before the learned trial court. It is now well recognized principle of law that when in any law a thing is prescribed to be done in a specific manner then that should be done in that manner but in no other way.
14. In view of above, discussion, we are of the considered view that the application before the learned trial court was neither competent nor maintainable as no such provision exists for the said purpose. Resultantly we hold that there is no illegality in the order passed by the learned Trial Court refusing the application filed by the appellant. The instant appeal, being devoid of any merit is dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.