The Supreme Court has appointed four lawyers as amici curiae to assist the court in reviewing its earlier guidelines to the lower courts to ascertain reliability of the reports of the government’s forensic science laboratories in narcotics cases.
A five-judge larger bench, headed by Justice Maqbool Baqar and comprising Justice Manzoor Ahmad Malik, Justice Sardar Tariq Masood, Justice Mazhar Alam Khan Miankhel and Justice Qazi Muhammad Amin Ahmed on Wednesday took up the case related to the review of the Supreme Court Justice Syed Mansoor Ali Shah’s judgment.
The bench appointed Bilal Hassan Minto, Sohail Akhtar, Babar Sattar and Ansar Nawaz Mirza as the amici. Notices were also issued to attorney general for Pakistan (AGP) and all advocate generals for assisting the court. It also sought legal assistance from the Anti-Narcotics Force (ANF) prosecutor general. The hearing of case was adjourned for two months.
It has been learnt that the ANF also wants the judgment, authored by Justice Syed Mansoor Ali Shah in 2018, to be revisited as it finds the SC guidelines too stringent to prove guilt of any accused in a narcotics case.
The judgment had directed the federal and provincial governments to ensure that analysts in government’s narcotics testing labs were qualified; their tests and protocols were uniform across the country and they followed international guidelines.
In his ruling, Justice Shah had held that no test in a narcotics case should take place without following the protocols. The judgment said that report of a government analyst must show that the tests applied were in accordance with a standard protocol.
“Any test conducted without a protocol loses reliability and evidentiary value. Therefore, to serve the purposes of the Act and the Rules, the report of the government analyst must contain (i) the tests applied (ii) the protocols applied to carry out these tests (iii) the result of the test(s),” the judgment said.
The court said that once the three requirements under Rule 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 were met in a report, any ambiguity therein might be resolved by the trial court by exercising its power under Proviso to Section 510, Code of Criminal Procedure (CrPC).
“The three elements form the fundamental and core elements of a valid report prepared by a government analyst. Non-compliance of rule and absence of requirements frustrated the purpose and object of the Control of Narcotics Substances Act 1997 and the accused may question the report.”
However, SC judge Justice Qazi Muhammad Amin Ahmed while authoring a judgment on January 6, 2020 had urged the CJP to constitute a larger bench to reconsider Justice Shah’s ruling. Justice Ahmed noted that the law laid down is a fine piece of judicial literature indeed nonetheless within the framework of administration of criminal justice and application of forensic evidence.
The judge noted that a rapidly developing phenomenon leaves certain vital areas unattended. “Tests conducted by serologists, chemical examiners, firearms experts, microbiologists, IT experts etc are the techniques extensively being used in prosecution of offences in most cases [and] fate of the prosecution case is inexorably linked with forensic results,” he added.
He said that the traditional modes to prove a crime had already withered away and it was the science that in most of the world flawlessly prosecuted the criminals. “We are following the suit though with an abysmal pace. Application of artificial intelligence to bring the culprits inescapably to the book is mind boggling,” he noted.
The judge noted that what information supplied by analysts realistically qualified to be received as protocol, needed a permanent settlement as well to plug artificial escape routes. “We find it expedient to request the CJP to constitute a larger bench to consider these aspects of the matter,” he stated.