IFTIKHAR AHMED vs THE STATE and another
This criminal revision petition is directed against the order of the trial court dismissing the petitioner's application to summon the Chemical Analyst as a court-witness in a case registered under Section 9(c) of the Control of Narcotic Substances Act, 1997. The trial was at the stage of defence evidence when the petitioner sought to cross-examine the Chemical Analyst on the ground that samples from multiple recovered packets of charas were mixed into a single composite packet of 200 grams before being sent for analysis. The Lahore High Court held that since representative samples were drawn from all recovered packets and analyzed, and no prejudice was shown to have been caused to the accused, the trial court was justified in refusing the application. The court distinguished the precedent cited by the petitioner, finding it inapplicable to the facts of the case, and dismissed the revision petition as being without merit.
- Whether the trial court is bound to summon a Chemical Analyst as a court-witness for cross-examination when samples from multiple recovered packets are mixed into a composite packet for analysis?
- Does the mixing of representative samples drawn from all recovered packets of narcotics cause legally cognizable prejudice to the accused warranting the summoning of the Chemical Analyst?
- Whether a revision petition is maintainable against an order of the trial court refusing to summon a witness at the stage of defence evidence without proof of prejudice?
- Section 9(c), Control of Narcotic Substances Act 1997
ORDER
' Revision petition against order, dated 11-10-2006 passed by learned trial Judge whereby he has dismissed application of the petitioner/accused for summoning the Chemical Analyst as court- witness in case F.I.R. No,15 of 2002, dated 13-11-2002 under section 9(c) of C.N.S.A. Of 1997 registered at Police Station A.N.F., Multan, the trial in which is almost complete and statement of the petitioner/accused has lso been recorded and the case is at the stage of defence evidence when the petitioner has filed application for summoning the Chemical Analyst.
2. Learned counsel for the petitioner has submitted that there were 20 packets of alleged Charas recovered from the petitioner while one packet was containing one Kg. Opium and the Investigating Officer separated 10 grams each from the opium out of 20 packets of Charas and then Charas was mixed into one packet of 200 grams and was sent to the Chemical Examiner for report. He submitted that Chemical Examiner then gave positive report in this respect, which is available on record as Exh.P.E. He submitted that since the Investigating Officer had mixed all the 20 packets of 10 grams each therefore, the Chemical Analyst is required to be summoned as court- witness to face cross-examination by the accused as each independent packet of sample of 10 grams was required to be sent to the Chemical Analyst for report. He submitted that impugned order is illegal whereby application of the petitioner has been dismissed by learned trial Judge arbitrarily.
3. Learned Special Prosecutor for A.N.F. Has opposed the application and submitted that learned counsel for the petitioner has not pointed out any illegality in the impugned order. She submitted that application is liable to be dismissed.
4. We have heard learned counsel for the parties and have perused the impugned order and have also gone through the report of the Chemical Analyst available on the file of this revision petition.
5. Learned counsel for the petitioner has not been able to convince us as to why Chemical Analyst is desired to be summoned by the petitioner for cross-examination and on what count and even if the Investigating Officer had mixed 20 packets of samples of 10 grams each into one composite packet of 200 grams after taking 10 grams each from 20 packets of Charas weighing 24 Kgs.
Allegedly recovered from the petitioner what prejudice had been caused to the petitioner and why Chemical Analyst was required to be summoned. Learned counsel for the petitioner has made reference to 2006 SCMR page 1091 whereby conviction and sentence was set aside by Honourable Supreme Court by allowing appeal of the accused in said case on the ground that there were several packets of contraband recovered from the accused in that case whereas contraband sample was taken only from one packet out of many and the result thereof could not be presumed to have been applicable to rest of the samples about which no contraband was extracted as sample for chemical analysis. Said case-law is not applicable on the case in hand as from all packets of recovered Charas 10 grams each was separated for chemical analysis and the total was mixed into one packet of 200 grams and was sent to Chemical Analyst and the report is positive whereas as regards one Kg. Packet of opium was separately taken out from said one Kg.
And separately sent to Chemical Analyst report of which is also on record as Exh.P.E., therefore, no prejudice has been caused to the petitioner by report of Chemical Analyst at least by learned trial Court in refusing his application for summoning the Chemical Analyst as court-witness. There is nothing in the impugned order, which can be construed to be illegal. Revision petition is without merit and is, therefore, dismissed.