THE STATE Versus MAQBOOL AHMAD

1. The State has filed this revision under section 439, Cr.P.C against the order of Sessions Judge, Okara, dated 8‑1i‑1987. The impugned order is assailed on the grounds of its being illegal, unlawful and contumacious and as constituting abuse of process of Court and that it runs contrary to the order of High Court, dated 29‑8‑1987.

2. Respondents in this case are 9 persons, namely, Maqbool Ahmad Javed, Muhammad Aslam, Muhammad Akram, Muhammad Qaisar, Muhammad Arshad Muhammad Ashraf, Muhammad Rashid and Shafaat Hussain.

3. All of them are accused in a criminal case registered against them on 26‑2‑198' under sections 148, 149, 506, 186, 332 and 358, P.P.C. and Article 3/4 of the Prohibition (Enforcement of Hadd) Order 1979, at Police Station B‑Division, Okara.

4. A raiding party consisting of D.S.P., Okara, Police Inspector, other officials of the police and three private persons, namely, Sardar Sultan Ahmad, Ch. Abdul Qadir and Gulzar Ahmad, besides the complainant Saifullah Khan, Inspector C. I. A., Sahiwal, was organised. It was headed by a Magistrate First Class, Okara. Raid was carried out and three items Charas, Opium and Heroin weighing 472' kilo, 261 kilo and 141 kilo respectively were recovered on the pointation of the accused from a Kotha in the Ihata in front of the house of Rashid accused situated in Kot Nihal Singh, Okara.

5. Recovery was attested by the Magistrate in the presence of D.S.P. City and his seal was used.

6. Sealed parcels were prepared. Specimens were taken and sent to the Chemcial Examiner for report. The report was positive.

7. After all the essential legal formalities had been complied with the challan was submitted in the Court of Sessions Judge, Okara, The trial commenced.

8. On 1‑6‑1987 one of the accused/ respondents Muhammad Arshad submitted an application to the trial Court, the contents of which are as follow:‑

9. No provision of law was cited under which this application was moved.

10. Notice was issued for 2‑5‑1987. Thereafter, it was disposed of on 1‑8‑1987 by means of the following order:‑

11. "In this case the accused have made an application for sending of the samples to the Chemical Examiner again on the plea that the samples were sent by the police not out of the disputed properties but the samples were fabricated. The learned counsel for the accused has argued that the Chemical Examiner has not given the detailed reports with regard to the articles. Let this application come up after some evidence is recorded and the alleged articles are exhibited in the Court."

12. Muhammad Arshad filed Criminal Revision No. 320 of 1987 in this Court. This was petition under section 439, Cr.P.C. read with section 561‑A, Cr.P.C. in which he challenged‑the order, dated 2‑6‑1987 and 1‑8‑1987. As a matter of fact there is no order, dated 2‑6‑1987.

13. During the pendency of Criminal Revision No. 320 of 1987, Criminal Miscellaneous No. 2 of 198' was moved under section 561‑A, Cr.P C. The averments of this application are as follows:‑

14. "(1) That the titled revision petition was fixed on 22‑8‑1987 and the Investigating officer was called for 29‑8‑1987. Status quo was to be maintained.

(2) That there is apprehension that the case property will be replaced during this period. Law Officer stated before this Hon'ble Court that he has no objection if the case property is kept in double lock.

15. It is, therefore, respectfully prayed that the case property may be ordered to be kept under the double lock."

16. Criminal Revision as well as Criminal Miscellaneous were disposed of by a learned Judge of this Court by order, dated 29‑8‑1987, 'paras. 3 to 5 of which are to the following effect:

17. "I have heard the learned counsel for the parties at some length. The learned Additional Advocate‑General has forcefully submitted that the case property was taken into possession and immediately thereafter some samples were also taken therefrom and were sent to the Chemical Examiner for their examination.

18. At this stage it may be noted that the learned Law Officer on the very first date of hearing conceded that he has no objection if the case property is kept under double lock. However, so far as the other part of the prayer of the petitioner is concerned, the learned counsel stressed that there is no legal justification to take samples again from the case property for examination by the concerned expert. He submitted that this step, as required by law, has already been taken by the prosecution and as such for the second time fresh samples cannot be taken and sent for their chemical examination. The learned counsel maintained that positive result has already been sent by the concerned expert. This being so, there is no legal necessity to send fresh samples for the same purpose for the second time.

19. At this stage, learned counsel for the petitioner does not press the petition. However, he has maintained that in the interest of justice his application for the aforesaid purpose should be deemed to be pending and that at the appropriate time witness may be summoned so as to enable the petitioner to cross‑examine him. This request of the learned counsel for the petitioner has been readily conceded by the learned Additional Advocate‑General, Punjab. With these observations this revision petition is disposed of as having been withdrawn."

20. The foresaid order of the learned Judge was not challenged. As such it became final. Again Muhammad Arshad accused moved an application, dated 7‑11‑1987 before the trial Court seeking the following relief:

21. This application was decided on 8‑11‑1987 by means of the following order:‑

22. "The accused have made an application for referring samples of the case property to the Chemical Examiner for getting his opinion. They had made an earlier application on which it was observed by this Court vide order, dated 1‑8‑1987 that this plea would be considered after recording some evidence and after the articles were exhibited in the Court. Now most of the evidence has been recorded and all the three articles (Heroin, Charas and Opium) have been exhibited in the Court. In view of the plea that the earlier samples were fabricated by the police for sending to the Chemical Examiner and that they were not taken from this case property, it requires examination of the case property by the Chemical Examiner otherwise ordinarily it would not have been necessary because once the Chemical Examiner examines the property and gives his opinion it is not necessary that he may be called upon to give a fresh report, but in view of the above, plea of the accused that the earlier samples had not been taken from this property, it is necessary in the interest of justice that the samples be sent afresh for opinion of the Chemical Examiner. The application is opposed by the learned P.P. However, in view of the above the application is accepted in the interest of justice. Now the samples be prepared in the presence of P.P. of this Court and the learned defence counsel and both of them will sign the samples so as to obviate any possibility of fabrication. The samples be of 10 grams each from the three properties. The samples would be taken to the Chemical Examiner by Muhammad Akram Constable No. 320/C/II attached as Naib Court to this Court. The samples would be sealed by the seal of this Court. The Chemical Examiner be directed to send the report direct to this Court within the shortest possible time.

23. After the order of the trial Court re‑examination of the samples took place on 11‑i1‑1987 and the report received was as follows:

24. "Three sealed pottlies, sealed with one seal each of District and Sessions Judge, Okara, intact said to contain Charas, Opium and Heroin ten gm. in each

25. OPINION:

26. One of the above packets contains Charas, second purified organic matter and third contains Marble powder."

27. Here it is necessary to refer to the first report of the Chemical Examiner as well, which was to the following effect:‑

28. "Three sealed pottlies, sealed with one seal each of N.A.C. intact, said to contain Charas, Opium and Heroin...

29. OPINION N0.1849/Ex., dated 4‑3‑1987.

30. One of the above packets contains Charas, second Non‑Excise opium and third Heroin."

31. Learned Advocate‑General took serious exception to the impugned order on two grounds. First that there was no legal justification for entertaining the second application. The report of the Chemical Examiner was already on the record. The trial Court, therefore, acted illegally and without jurisdiction.

32. It was next contended that the aggrieved party had brought the matter to the High Court where the application was not pressed.

33. Thereafter, it was not open to the accused /respondents to approach the trial Court.

34. Khawaja Sultan Ahmad learned counsel for the respondents supported the impugned order. His stance was that the trial Court neither committed any illegality by entertaining the application nor acted in violation of the order of the High Court.

35. He relied on section 510, Cr.P.C., which is as follows:‑

36. "Any document purporting to be a report, under the hand of any Chemical Examiner or Assistant Chemical Examiner to Government or of the Chief Chemist of the Pakistan Security Printing Corporation Limited or any Serologist, fingerprint expert or fire‑arm expert appointed by Government upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may, without calling him as a witness, be used as evidence in any inquiry, trial or other proceeding under this Code:

37. Provided that the Court may, if it considers necessary in the interest of justice, summon and examine the person by who such report has been made."

38. Learned counsel also referred to High Court Rules and Orders Vol. III Chapter 18 Part B.

39. According to the learned counsel even the Magistrate is at liberty to forward any article connected with any criminal case to Chemical Examiner.

40. Learned counsel further submitted that it is a matter of common knowledge that in criminal proceedings especially in murder cases where either party suspects some foul play with regard to any particular piece of evidence like the post‑mortem report, request is made to the Court for re‑examination and instances are not lacking where bodies were exhumed, re‑examined and fresh reports were submitted by the Medical Board.

41. The crux of the arguments of the Advocate‑General and that of the learned counsel was that according to the former the impugned order resulted in miscarriage of justice, whereas according to the latter it was in the interest of justice.

42. I have considered the contentions of the Advocate‑General a well as the learned counsel for the respondents. I am inclined to agree with the Advocate‑General that there was no justification for fresh examination. My reasons for that are 'The incident took place on 26‑2‑1987. Samples and sealed parcels were prepared and forwarded to the Chemical Examiner on the same day.

43. On 4‑3‑1987 Chemical Examiner submitted his report which has been referred to above.

44. Request for second examination was made on 1‑6‑1987, which was turned down on 1‑8‑1987.

45. Criminal Revision was filed in the High Court which was withdrawn on 29‑8‑1987.

46. Then on 7‑11‑1987 Muhammad Arshad again approached the trial Court for second examination. This application was decided on 8‑11‑1987.

47. Samples were sent to Chemical Examiner on 10‑11‑1987.

48. The report came on 11‑11‑1987.

49. All this establishes the manoeuvre of the accused to obtain favourable report. The dates speak for themselves. The entire process had been done at a supersonic speed. It is, therefore, obvious that the accused had already arranged to obtain a favourable report. The plea taken by the accused was that the police had not taken the first samples out of disputed properties and the samples were fabricated. This was accepted by the trial Court. The mere fact that an accused takes a plea is not enough to accept it ipso facto. The party raising the plea is under legal obligation to establish the same at least prima facie by some evidence on the record. I have not come across any evidence in support of this plea. I am, therefore, constrained to observe that this is not a judicial approach. A seasoned senior judicial officer of the rank of the Sessions Judge was not expected to act in such an arbitrary manner.

50. I have considered the two provisions referred to above. Neither section 510, Cr.P.C. nor High Court Rules and Orders are helpful to the learned counsel for the respondent because these are not applicable The trial Court was expected to act with more caution and care when one of the accused /respondents moved this Court anal subsequently did not press his application.

51. I am clear in my mind that neither the second application could be entertained nor there was any good ground or legal justification to order re‑examination. The revision is accepted. The impugned order is set aside. Record shall go back to the trial Court so that the trial be concluded expeditiously under intimation to the Deputy Registrar (J) of this Court.

52. The observations made in this judgment are strictly for the disposal of this revision petition and are not to be used for or against any party at the trial.

53. Before concluding I would like to observe that the Government is under legal and moral obligation to take strict action against those, whosoever they may be, who are responsible for conversion of Opium and Heroin into putrified organic matter and marble powder respectively.

54. There had been cases in the past where smuggled gold taken into possession turned into copper over night. If no suitable action is taken against the delinquent officials, there shall be no end to this practice. Hence I do not think we would even be able to get rid of the nuisance of narcotics which is causing irreparable damage at the national and international level.

55. M.Y.H./S‑276/L Revision accepted.