Through instant appeal, the appellant has challenged the legality of the impugned order dated 13.07.2019 passed by the learned Judge, Special Court CNS, Lahore, whereby the application filed by the appellant under section 540, Cr.P.C. for summoning of Forensic Scientist/Analyst for evidence as PW/CW, was dismissed.
2. The learned Special Prosecutor for ANF submits that there is short out coming in the Chemical examiner report in view of judgments of Hon'ble Supreme Court of Pakistan and to meet the deficiency, the application under section 540, Cr.P.C., for summoning of forensic scientist/analyst is necessary and has made prayer for setting aside the impugned order dated 13.07.2019.
3. We have given our anxious consideration to the submissions made by the learned counsel for the appellant.
The learned counsel for the appellant during arguments submitted that there is short out coming in the chemical examiner report and to meet the deficiency the application under section 540, Cr.P.C. for summoning of forensic scientist/analyst was submitted. The question arose here for consideration was whether in the proceedings under the Control of Narcotic Substances Act, 1997 the provisions of section 540, Cr.P.C. would be applicable to cover the flaw or inherent defect in Chemical Examiner Reports. The exercise of the power conferred by section 540, Cr.P.C. is conditional by the requirement that such exercise would be essential to the just decision of the case. The evidence should appear to be essential to the court for just decision and not to fill in lacuna in the prosecution case. Lacuna in the prosecution means inherent weakness. The advantage of it should normally go to the accused in the trial of the case. An oversight committed by a prosecutor or defence during trial either in producing any material document or in eliciting relevant answer from the witnesses could not be equated with a lacuna in the prosecution case. Any such mistake during the trial cannot be considered as a lacuna. In the instant case the appellant moved application under section 540, Cr.P.C. for summoning the Forensic Scientist/Analyst for covering short fall in the Chemical Examiner Report. For summoning of the Forensic Scientist/Analyst it is necessary that the expert expressed his opinion in the report that after conducting the required test, the entire mass is a sample of contraband substance. Whereas on perusal of N.I.H expert reports revealed that therein it was not mentioned that which test was applied before forming opinion and name or number of the Scientist/Analyst formed opinion. At this stage, the action of the complainant is arbitrary and would amount to filling in lacuna. A conspectus of case titled "Khair-ul-Bashar v. The State" (2019 SCMR 930) would show that, "Re-testing of the drug, as argued by the DPG, in case of a deficient report would amount to giving a premium to the prosecution for its mistakes and lapses. In any case any flaw in the case of the prosecution must only benefit the accused. Sending the alleged drugs for re-testing would be giving another chance to the prosecution to build its case, which is not the role or business of the court." Chemical examiner report of the forensic scientist/analyst is relevant document in cases related to contraband substance and the opinion expressed by the expert should be honoured and not called into question if it follows the statute. The real function of the forensic scientist/analyst is to put before the Court its opinion, together with test protocols and reasons which induce him to come to the conclusion, so that the Court, although not an expert, may form its own judgment by its own observation of those materials. It will be relevant to mention here that forensic scientist/analyst is not a witness of fact and his opinion is of expert nature. The duty of the expert is to furnish report with the necessary scientific criteria for testing the accuracy of the conclusions in order to enable the Judge to form his independent judgment by the application of these criteria.
So that when the appellant finds technical defects such as the non-mentioning of test protocols, in view of the pronouncement of Apex Court in the cases of "Khair-ul-Bashar v. The State" (2019 SCMR 930) and "The State through Regional Director ANF v. Imam Bakhsh and others" (2018 SCMR 2039) moved application for summoning forensic scientist/analyst, such defects could not be asked to be filled by summoning witness.
However, it is unthinkable that the learned Judge, Special Court CNS, Lahore should have a power to go against the pronouncement of apex court and to allow application under section 540, Cr.P.C. for summoning forensic scientist/analyst or as the case may be. Law does not know such a course. As what cannot be directly done cannot be indirectly done. If such thing is allowed, it will amount to a party undoing what cannot be normally done. The learned Special Prosecutor for ANF has failed to point out any infirmity legal or factual in the impugned order, which would justify interference.
4. For what has been discussed above, we find no illegality, infirmity or irregularity in the impugned order dated 13.07.2019 passed by the learned Judge, Special Court CNS, Lahore. We find no force in instant appeal. It is accordingly dismissed.