PESHAWAR, Jan 19: A two-member bench of the Peshawar High Court has admitted to full hearing a writ petition challenging three notifications about establishment of narcotics testing laboratory and appointment of chemical examiner with retrospective effect.

The bench comprising Justice Tallat Qayyum Qureshi and Justice Qaim Jan Khan directed that the petition and criminal appeal, filed by the same petitioner against his conviction by a narcotics court, should be fixed for hearing during first quarter of February.

Advocate Noor Alam Khan, representing the petitioner Munawar Hussain, argued that the provincial government had no authority to give retrospective effect to the said laboratory and chemical examiner. He pointed out that even the concerned law, Control of Narcotics Substance Act of 1997, was not enforced by the Parliament with retrospective effect then how could the provincial government be empowered to issue notifications for back dates.

The provincial government had issued the three notifications on June 9, 2001. Through the first notification the Forensic Science Laboratory (FSL) of police was declared provincial narcotics testing laboratory in terms of section 34 of the CNSA with effect from July 11, 1997. Through the second notification a deputy superintendent of police Ahmad Mustapha was declared as chemical examiner under section 35 of the CNSA with effect from 1997.

Moreover, through the third notification Ahmad Mustapha was declared chemical examiner for the purpose of section 510 of Criminal Procedure Code with effect from Aug 8, 1978.

The petition is of immense importance as in case of its acceptance by the high court dozens of cases in which chemical examination were conducted by the FSL and said examiner would be affected.

These notifications were issued by the provincial government for giving cover to chemical examinations done over the years in narcotics cases by the Forensic Science Laboratory of the police and Ahmad Mustapha. Under section 34 of CNSA it was mandatory for the government to establish narcotics testing laboratory or to declare an established laboratory as narcotics testing lab. However, since 1997, when the CNSA was enacted the provincial government neither established any lab for the purpose of narcotics cases nor declared the FSL as the concerned lab.

Last year when an appeal of a convict in narcotics case was pending before the high court and same point was raised, the provincial government issued the notifications in haste and gave retrospective effect to the laboratory and the chemical examiner so as to remove the illegalities committed for the last many years. Interestingly, the said police officer conducted chemical examinations in cases under the Prohibition (Enforcement of Hudood) Order 1979, which were used as evidence under section 510 of CrPC. Due to same reason the third notification was issued for appointing him as chemical examiner with effect from 1979.

The petitioner Munawar Khan was convicted on May 8, 2000, by an additional district and sessions judge in his capacity as special judge anti-narcotics and was sentenced to life imprisonment. He had raised the point that the chemical examination of contraband seized by the police was conducted by the FSL, which was not an authorised laboratory under the CNSA.

Advocate Noor Alam Khan referred to Article 12 of the Constitution stating that these notifications could not be issued with retrospective effect. He asked how could the government give legal cover to acts done 20 years ago.

Additional Advocate Gen Imtiaz Ahmad argued that appeal of the petitioner was already pending before the high court and he could not file writ petition on same grounds. The petitioner counsel argued that vires of the notification could not be challenged in an appeal due to which the petitioner had to file a petition.