WAQAR AHMAD SETH, C.J.---Through the instant constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, petitioner prayed that on acceptance of this writ petition, this Hon'ble Court may kindly issue;- a. Declaration to the ef fect that "Control of Narcotics Substances (Government Analysts) Rules, 2001" are mandatory in nature. b. Declaration to the ef fect that the laboratories functioning in the Khyber Pakhtunkhwa does not fulfill the minimum requirements of the law, hence, are illegal, without jurisdiction and without lawful authority . c. Declaration to the effect that Forensic Science Laboratory report conducted by chemical examiner who by himself does not fulfill the minimum required qualification of Rule 3 of the "Control of Narcotic Substances (Government Analysts) Rules, 2001" is illegal, without jurisdiction and without lawful authority . d. Direction 'to the effect that the Government analyst or chemical examiner may be appointed according to the required qualification prescribed in the Rule 03 of the "Control of Narcotic Substances (Government Analysts)
Rules, 2001", strictly in accordance with the law . e. Direction to the effect that the Government analyst or chemical examiner appointed in violation of Rule 03 of the "Control of Narcotic Substances (Government. Analysts) Rules, 2001" or having less experience required by the law may be terminated, forthwith in express contraventions of law is illegal, ab-initio and he cannot issue chemical analysis report at all and there is strong likelihood to effect the safe administration of justice and achieve objectives of the Control of Narcotic Substances Act, 1997 and further he is required to be suspended forthwith, f. Any other order deemed appropriate in the circumstances of the case may also be passed. The petitioner may be allowed to put forward any other argument/document at the time of hearing of this writ petition.
2. In essence the grievance of the petitioner Aman-ul-Haq son of Muhammad Ullah resident of Mohallah Haji Abad, Sheikhan, Peshawar are that he was charged in case registered vide FIR 197 dated 02.03.2009 under section 9(c), Control of Narcotic Substances Act, 1997 of Police Station Phandu, Peshawar . Thus was convicted by the learned Additional Sessions Judge-V/Judge Special Court, Peshawar vide order dated 07.04.2016, and convicted and sentenced under section 9(c), Control of Narcotics Substances Act, 1997 for four years rigorous imprisonment along with fine of Rs. 40,000/- or in default of payment of fine to undergo further two months' S.I. Benefit of section 382-B, Cr .P.C. was extended as well.
3. In the first round of the litigation, petitioner filed Criminal Appeal No. 194/2013 which was partially allowed/accepted vide order dated 13.06.2013, and the case was remanded back to the trial Court. Relevant abstract from the order dated 13.06.2013 is reproduced below;- "Accordingly , for the reasons stated hereinabove, this Court partially allow the appeal, set aside the conviction and the sentence inflicted upon the petitioner and send the case back thereto for decision afresh after having fresh samples and getting them examine from chemical examiner duly appointed in term of section 35 of the Act, read with rule 3 of the Government Analyst Rules 2001 in terms of the prescribed qualification."
4. Arguments heard and record perused with the able assistance of learned counsel for the parties.
5. This writ petition is the outcome of judgment dated 13.6.2013, rendered in Crim inal Appeal No. 194-P of 2013, whereby this Court while remanding the case to learned trial Court, had directed him to decide the matter fresh after having fresh samples and getting them examine from chemical examiner duly appointed in term of section-35 of the Control of Narcotic Substances Act, 1997 read with Rule-3 of Government Analyst Rules, 2001. On receiving the case file, petitioner/ appellant filed application for re-examination of the samples through any Laboratory/PCSIR, which was accepted and the samples were sent to the said laboratory for analysis/test and the result thereof, placed on instant petition dated 6.4.2015 is as under:- Sample Nos. Heroin with other related alkaloids.
Parcel Nos. 1 to 5, 7, 8, 10 to 12 and 15.Not detected.
Parcel No. 6. 7% Parcel No. 9. 10% Parcel No. 13 11% Parcel No. 14 02%
6. Basing the said result, the learned trial Court, convicted and sentenced the petitioner to four years, which has been challenged in criminal appeal befor e this Court, but the assertion so made in earlier criminal appeal to the effect that whether the person who prepared, verified, signed and conducted the test in regard to purportedly recovered narcotics substance was a competent person with regard to his qualification as prescribed under section 35 of the Act read with Rule-3 of the Government Analyst Rules, 2001, is a questio n before this Court coupled with other mandatory provision of Act/Rules. The prayers so quoted above, also manifest the earlier assertion. The report of FSL Ex.PW .2/4 dated 4.3.2009 would depict that P1 to 15, all the samples were Heroin, whereas according to PCSIR report, aforementioned, the same suggest, something otherwise.
7. Petitioner through the petition is alleging declaration to the effect that section 35 of the Control of Narcotic Substances Act, 1997 coupled with Control of Narcotic Substances (Government Analysts) Rules, 2001 are mandatory in nature in such like cases. Section-35 of Act and Rule-3 of the ibid Rules, 2001 deals the matter which reads as under:- "The Federal Government or a Provincia l Government may, by notification in the official Gazette, appoint such persons as it thinks fit, having the prescribed qualification, to be Federal Government, Analysts or, as the case may be Provincial Government Analysts, for such area and in respect of such narcotics drugs, psychotropic substances or controlled substance as may be specified in the notification.
"Qualification of Government Analyst. (1) A Government Analyst shall be a person who has a degree in pharmacy or pharmaceutical Chemistry or Medicine from a recognized University or of any other institution recognized by the Federal Government for this purpose and has not less than three years postgraduate experience in the test and analysis of drugs.
8. Keeping in view the above, section/rule of law, efficient, credible and proficient persons having the requisite qualification in the field are required for successful execution of the Act/Rules, as on the said reports, conviction/acquittal are based. In the instant petition, two different reports/results-analysis have been furnished by two different laboratories, one of them would definitely be true/correct, and on' tentative assessment of the said reports, the later dated 6.4.2015, seems genuine, as the same is based on the methodology , prescribed. The earlier report of FSL dated 4.3.2009 on the face of record suggests that either the laboratory i.e. FSL is lacking the facilities or the persons appointed therein have been selected otherwise or the report/results-analysis are based on ulterior motives. This Court had called the comments of respondents wherein respondents i.e. PCSIR had filed their comments, but official of FSL or for that matter the prosecution has not filed their comments to observe their stance and competency of their examiner , submitting their reports in narcotics cases, however , this Court in Criminal Appeal No. 194-P/2013 decided on 13.6.2013, had summoned the concerned purportedly appointed as Government Analyst to know his competency in regard to his qualification and this Court had observed his incompetency , irrespective of the fact that whether he was Government Analyst, Chemical Examiner or Assistant Chemical Examiner . The Provincial Government in pursuance of provision contained in subsection (2) of section 34 of the Control of Narcotic Substances Act, 1997 through notification No. SO (P-1) H1/3-2/97 dated 09.06.2001, for all intent and purposes of the Act, had declared the Forensic Laboratory of Police Department at Peshawar , to be the Provincial Narcotics Testing Laboratory with effect from 11.07.1997, and notified Government Analyst under section 35 of the Act, in respect of narcotics and other psychotropic substances, but the qualification under rule-3 of Control of Narcotic Substances (Government Analyst) Rules, 2001, of a Governm ent Analyst, altogether , coupled with reports/results-analysis under rule-6 of the ibid rules, are not being submitting with full protocols of the test applied, as in each and every narcotics case, stereotype, pro forma results are being submitted.
9. Section 36(1) of the Act read with rule-6 of the Rules, 2001, mandates that repor t must be in the prescribed form and a complete mechanism is to be adopted by the Chemical Examiner upon receipt of samples and a report is then to be submitted by him referring to the necessary protocols, and mentioning the tests applied, in quadruplicate in "the prescribed form" and if the report prepared by him is not prepared in the same manner , then it may not be qualify to be called a report in the context of section 36 of the Control of Narcotic Substances Act, 1997, so as to be treated as a conclusive proof of recovery of narcotics substance from an accused person. The apex Court in judgment reported as 2018 SCMR 2039 has dilated upon similar issue in the manner as under:- `Directory' and 'mandatory' provisions in a statute-Distinction--T o distinguish where the directions of the legislature were imperative and where they were directory , the real question was whether a thing had been ordered by the legislature to be done and what was the consequence, if it was not done---Some rules were vital and went to the root of the matter , they could not be broken; others were only directory and a breach of them could be overlooked provided there was substantial compliance---Duty of the court was to try to unravel the real intention of the legislature---Such exercise entailed carefu lly attending to the scheme of the Act and then highlighting the provisions that actually embodied the real purpose and object of the Act---Provision in a statut e was mandatory if the omission to follow it rendered the proceedings to which it related illegal and void, while a provision was directory if its observance was not necessary to the validity of the proceedings--Some parts of a statute, thus, may be mandatory whilst others may be directory-- -Furthermore certain portion of a provision, obligating something to be done, may be mandatory in nature whilst another part of the same provision, may be directory , owing to the guiding legislative intent behind it--Even parts of a single provision or rule may be mandatory or direct ory--In another context, whether a statute or rule be termed mandatory or directory would depend upon larger public interest, nicely balanced with the precious right of the common man.
Sr. 5 & 6--Control of Narcotic Substances Act (XXV of 1997), S. 9---Possession of narcotics--Report of Government Analyst---Safe custody and transmission of samples of the alleged drug from the spot of recovery till its receipt by the Narcotics Testing Laboratory--Chain of custody began with the recovery of the seized drug by the police and included the separation of the representative sample(s) of the seized drug and their dispatch to the Narcotics Testing Laboratory---Said chain of custody , was pivotal, as the entire construct of the Control of Narcotic Substances Act, 1997 and the Control of Narcotic Substances (Government Analysts) Rules, 2001 rested on the report of the Government analyst, which in turn rested on the process of sampling and its safe and secure custody and transmission to the laboratory--Representative samples of the alleged drug must be in safe custody and undergo safe transmission from the stage of recovery till it is received at the Narcotics Testing Laboratory--- Prosecution must establish that the chain of custody was unbroken, unsuspicious , indubitable, safe and secure--- Any break in the chain of custody or lapse in the control of possession of the sample, would cast doubts on the safe custody and safe transmission of the sample(s) and would impair and vitiate the conclusiveness and reliability of the report of the Government Analyst, thus, rendering it incapable of sustaining conviction.
R. 3----Control of Narcotic Substances Act (XXV of 1997), S. 9---Possession of narcotic---Narcotic Testing Laboratories---Qualification of Government Analyst--Supreme Court directed that the Federal Government and the respective Provincial Governments shall ensure that the Government analysts in the Narcotics Testing Laboratories were qualified as per R. 3 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 ('the Rules'); that the tests and their protocols were common across the country and as per International guidelines; that the officials of the National and 'Provincial Narcotics Testing Laboratories shall follow the Rules in the best manner possible so that efficient and meaningful chemical analysis could be achieved, and that in case of failure, disciplinary action shall be taken against the officials, in accordance with law.
Rr. 5 & 6---Control of Narcotic Substances Act (XXV of 1997), S. 9---Possession of narcotics--Report of Government Analyst---Rule 5 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 was directory while R. 6 was mandatory to the extent that the full protocols ought to be mentioned in the report of the Government Analyst---Non-compliance of R. 6, in such context, would render the report of the Government Analyst inconclusive and unreliable.
In another case reported as 2015 SCMR 1002 titled Ikramullah and others v. The State , the apex Court had held as under:- Ss. 9(c) & 36---Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr. 5 & 6---Recovery of narcotic substance---Reappraisal of evidence---Chemical Examiner Report---Safe custody of narcotics---Proof--- Accused persons were convicted and sentenced to imprisonment for life alleging recovery of 48 packets of Chars from their vehicle---V alidity---Entire page which was to refer to relevant protocols and tests was not only substantially kept blank but the same had also been scored off by crossing it from top to bottom--Such was a complete failure of compliance of relevant Rule and such failure reacted against reliability of report produced by prosecution before Trial Court---Provisions of S. 36 of Control of Narcotic Substances Act, 1997, required a government Analyst to whom a sample of recovered substance was sent for examination to deliver to the person submitting the sample a signed report in quadruplicate in "the prescribed form"---If report prepared by government analyst was not prepared in the prescribed manner then.it could not qualify to be called a report in the context of S. 36 of Control of Narcotic Substances Act, 1997, so as to be treated as "conclusiv e" proof of recovery of narcotic substance from accused person---Investigating officer appearing before Trial Court had failed to even mention name of police official who had taken the samples to office of Chemical Examin er---No such police official was produced before Trial Court to depose about safe custody of samples entrusted to him for being deposited in office of Chemical Examiner---Prosecution was not able to establish that after alleged recovery of substance so recovered was either kept in safe custody or that samples were taken from recovered substance had safely been transmitted to office of Chemical Examiner without the same being tampered with or replaced while in transit--- Prosecution failed to prove its case against accused persons beyond reasonable doubt---Supreme Court set aside conviction and sentence awarded to accused persons and they were acquitted of the charge---Appeal was allowed.
10. In the above quoted judgments, the apex Court had time and again emphasis and held that transmission in safe custody of the recovered narcotics to Testing Laboratory and compliance of provision of Act/Rules are mandatory in nature in respect of selection of Government Analyst and their results/analysis as per section 36(1) and rule 6 qua the results/analysis in the manner i.e. i) all the tests and analysis of the alleged drug; ii) the result of the each test(s) carried out along with the consolidated result and; iii) and the name of all the protocols applied, to carry out these tests. Keeping in view the law on, the subject and judgments of apex Court, the provisions of the statute is/are to be complied with in letter and spirit, without any fail and in case of failure, disciplinary action purportedly is to be taken in accordance with law. It is also important to underlin e that the Government Analyst while giving the details of tests/analysis, the results for each test and the test protocols applied in the report, must remember that under section 36 of the Act, the report of the Government Analyst, whilst being admissible in evidence without formal proof, is rebuttab le and can be questioned, but the Court is free to examine and assess whether it meets the requirements of the report under the Act and the Rules, even if the report is not rebutted by the accused. The concept of testing under the Act, the establishment of the testing laboratories, test and analysis and the report of the Government Analyst are premised on the assumption that the Government Analyst possesses the prescribed qualification provided under section 35 of the Act read with rule 3 of the rules, quoted above, and any deviation therefrom would affect the interest of public at large, not sustainable in the eye-of law. On scrutiny none of the mandatory provisions either the process of recruitment in the prescribed criteria or for that matter , the test/report criteria, are being complied with.
11. Learned counsel for the petitioner is of the view that Assistant Chemical Examiner is incompetent and unauthorized to conduct, verify and sign the report, while learned AAG states that under section 510, Cr.P.C., the report prepared by Assistant Chemical Examiner , presumed to be prepared, verified and authenticated by a competent person, had been made admissible in evidence, but this Court is of the opinion that although under section 510, Cr.P.C. reports/results of Chemical Examiner and Assistant Chem ical Examiner to Government, appointed are made admissible, but being Narcotics Law, enacted as a Special Law, provisions of the said Act have been given overriding affect under section 76, and under section 36 of the Act, 1997, the Government Analyst has been mentioned. Subsection (2) of section 36 reads as "Notwithstanding anything contained in any other law 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, meaning thereby that in each and every case of Narcotic samples is/are to be sent to such person, defined under section 35 read with rule-3 of Rules, 2001. The emphasis that the report of the Government Analyst must carry out the information required in Rule-6 is to ensure that convictions under the Act are based on reliable and credible report. Courts can apply purposive interpretation of the statute to bridge the gap between the law and the safe administration of criminal justice system based on prudence, caution, circumspection and judiciousness.
We cannot deny that the aim of interpret ation in law is to realize the purpose of the law, the aim in interpreting a legal text is to realize the purpose the text serves. Law is, thus, a tool designed to realize a social goal. It is intended to ensure that social life of the community , on the one hand, and human rights, equality , and justice on the other hand.
12. For the reasons recorded hereinabove, this writ petition is allowed in the manne r that respondents-departments are directed to comply with the provisions of Control of Narcotic Substances (Government Analysts) Rules, 2001, in letter and spirit. Depute/appoint eligible and competent persons in view of rule-3 of the ibid rules having the prescribed qualification and experience and equipped the certified/notified Testing Laboratories in accordance with the standard/the requirements of test/analysis as prescribed in the Act/Rules for safe administration of Justice. The Additional Registrar (Judicial) of this Court is directed to communicate copy of this judgment to respondents- Provincial Government for compliance and necessary action, immediately .