Through the instant appeal under Section 48 of The Control of Narcotic Substances Act, 1997 the appellant has assailed the order dated 30-05-2015 passed by learned Sessions Judge Jhelum, whereby request of the petitioner for de-sealing/opening the parcel of the case property was turned down.
2. Brief facts of the case are that on 18-05-2014, while the complainant Javed Iqbal, SI Incharge CIA, Staff, alongwith other police officials, was present at GPO, Chowk, Jhelum for search of drug peddler and illicit arm, when at 8:00 PM, one person on motorcycle bearing No. 622/GM came from GT road side, who had one plastic bag fastened on back side of his motorcycle. He was apprehend by the police, he disclosed his name as Amjad Siddique s/o Muhammad Siddique. Javed Iqbal, SI searched the plastic bag and found 15 packets of charas weighing 15375 grams charas in total; 5 grams of charas as sample for chemical analysis from each recovered "Litter" was separated and prepared 210 sealed sample parcels.
3. That challan was submitted before the Court and after framing the charge, the trial Court proceeded with the recording of evidence. On 13-04-2015 statement of Muhammad Tufail ASI, recovery witness was recorded and the witnesses were partially cross examined by learned defence counsel while remaining cross examination was reserved. On 20-05-2015, counsel for the accused made oral request for de-sealing the parcel of recovered contraband material (P1) and the trial Court turned down the request of the learned counsel and thereafter, on the request of learned counsel, the case was adjourned for 03-06-2015. Hence, the instant appeal.
4. Learned counsel for the petitioner submits that the impugned order is against the law and facts and is based on conjectures and surmises; that no order can be passed on the basis of apprehension on the part of the Court and it is the legal right of the accused to get the case property reopened for the purposes of cross examination; that the case is of capital punishment and no one can be convicted on the basis of presumptions and finally craves for the acceptance of appeal.
5. On the other hand, the learned DPG did not controvert the contentions of the learned counsel for the petitioner and stated that the contentions of the learned counsel are legal and he has no objection if the appeal is allowed.
6. Having heard learned counsel for the appellants/accused and DPG and perusing the record. It is observed that contentions of learned counsel need consideration to the effect whether case property could have been exhibited without de-sealing and without showing the same to the witness and other concerned.
7. In this connection we may observe that word "exhibit" is legally defined as bring forward, bring to light, bring to nooice, bring to view, demonstrate, disclose, display, evidence, evince, exhibere, exponere , expose, express, feature, indicate, lay bare, lay open, make clear, make known, make obvious, make plain, manifest, offer for inspection, open up, point out, present, present for consideration, present to view, produce, proponere, reveal, reveal to public noice, set forth, show, submit in evidence, uncover, unveil.
Definition of "exhibit" is given in Duhaime's Law Dictionary is as under: "Exhibit: a document or thing produced for inspection of the Court; or shown to a witness when giving evidence or referred to in deposition; or a document referred to in, but not annexed to, an affidavit."
The word "exhibit" defined in Black's Law Dictionary, is as under:- "A document, record or other tangible object formally introduced as evidence in Court".
The meaning of exhibit mentioned in Collins English Dictionary is as under "is a document or object produce in the Court and referred to or identified the witness given evidence".
Whereas in Chambers English Dictionary it is defined as under:- "to hold forth or present to view; to present formally or publically; to show; to give as a remedy---- n, a document or objects produced in Court to be used a evidence (law); something exhibited; and articles at an exhibition."
8. From the above mentioned definitions, it is clear that exhibit means a thing produced for inspection of the Court; or shown to a witness when giving evidence or referred to its deposition and it does not mean the parcel, piece of cloth or bag shown to the witness. In the instant case, the accused/appellant is allegedly burdened with the allegation of possessing the huge quantity of narcotics and obviously, the charge against the accused is one of capital punishment, therefore, the entire case property produced in the Court must be opened in the Court so that the witnesses and other concerned could see the same. In the instant case, without opening the sealed parcels, the learned trial Judge has illegally exhibited the case property without showing it to the witnesses.
The observation of the trial Court is based on the presumption. Learned trial Court further committed illegality on the presumption, that the litigants maneuver replacement of substances and articles deposited in Malkhana and then makes such prayer for taking benefits, in that eventuality with such presumption how he got exhibited the case property without its formal exhibition in the Court. It is also observed that aforementioned apprehension of the Court is not applicable to the present case as the appellant Amjad Siddique is in jail and it is not acceptable or convincing that he has any access to the Malkhana, which is in safe custody of the police officials.
In this case, learned Judge instead of showing the case property in open Court to all concerned refused to open or de-seal the parcels which is against the settled principles of law. This order further depicts that the case property was not opened in the Court even on repeated request of the learned defence counsel. In this way, learned ASJ has strangulated the fair trial which is vested right of an accused person.
9. Furthermore, the refusal to expose the case property in open Court is even against the mandate of Article 10-A of the Constitution of 1973 which enshrines the fair trial. The concept of fair trial has always been the golden principle of the administration of justice and after incorporation of Article 10-A of the Constitution, it has become more important to adopt due process of law as envisaged in Constitution of the Islamic Republic of Pakistan as well as in local laws. Even otherwise without any lawful justification, the Court cannot decide the case only on presumptions and surmises. It is further out of sight that how it is in the knowledge of the learned Judge that property contained in the wrappers would be tempered one. It is the duty of the prosecution to produce the case property in the Court and get it exhibited. Subject to repetition it is reiterated, all the cases should be proceeded strictly in accordance with law rather than deciding the same on presumptions.
Especially, no negligence in this regard can be over looked in cases entailing capital punishment.
10. In view of above, the instant appeal is accepted and the trial Court is directed to open/de-seal the case property in the open Court so that the witnesses and other concerned can see the same in the open Court and appellant or his counsel, as the case may be, can cross examine the recovery witness in accordance with law.