SYED MUHAMMAD ATTIQUE SHAH, J.---Impugned herein is the order dated 06.02.2020 of the learned Additional Sessions Judge-VI/ Judge Special Court, Peshawar , whereby , request of the petitioner , in respect of de- sealing of case property was turned down.
2. Brief history of the case in hand is that accused/petitioner was apprehended by the local police on 04.02.2019 in a narcotics case and was booked in FIR No.127 of even date for offence under Section 9(c), CNSA, Police Station, Bhana Mari Peshawar . Challan was submitted before the learned Trial Court and after framing of charge, trial proceeded. While recording the evidence of PW-6 (Malak Aman, ASI Police Station Chamkani) marginal witness to the recovery memo, the accused/ petition er made a request for de-sealing of the case property , which was declined by the learned Trial Court vide impugned order , hence, the instant petition.
3. Learned counsel representing petitioner contended that impugned order is illega l being, passed in clear violation of the law applicable thereto; that case property could be de-sealed in presence of a marginal witness of recovery memo upon request of defence and, denial of the same is in fact denial of the right of a fair trial enshrined in Article 10-A of the Constitution of 1973; That impugned order has seriously prejudiced the case of the petitioner and, thus, the same is not sustainable in the eye of law and is liable to be set-aside.
4. Contrary , learned AAG representing the State while defending the impugned order contended that when no request was made for de-sealing of case property in presence of Seizing Officer (PW-5) at the time of recording his statement before the Court then, neither , such request be made, nor, could be entertained subsequently during the course of recording the statement of PW-6 i.e. witness of the recovery memo; that impugned order needs no interference being, the result of proper appreciation of the facts and question of law applicable therein; that neither , the learned trial Court has committed any illegality nor irregularity to warrant interference at this stage and, therefore, the instant petition is liable to be dismissed being, meritless.
5. Arguments heard and available record perused with the able assistance of the learned counsel representing the petitioner and worthy AAG for the state.
6. Available record reveals that PW-5 (Wajid Ali, SI/Seizing Officer) during the course of his statement exhibited case property as Ex-P-1 under an objection from the learned defence counsel that the exhibited property does not pertain to the present case. Subsequently , on even date, statement of PW-6 (Malak Aman, AS1 Police Station Chamkani) marginal witness to the recovery memo (Ex-PW -5/2), was recorded. During the course of cross- examination, learned defence counsel made a request for de-sealing of case property Ex-P in open Court for its examination, which request was strongly resisted by the worthy APP on the sole ground that case property could not be de-sealed in statement of the marg inal witness of recovery memo (Ex-PW -5/2), rather , the same could only be de-sealed in presence of PW-5 (Seizing officer) in whose statement, the same has been exhibited, consequently , the ibid request was turned down by the learned trial Court through impugned order on even date.
7. Be that as it may, the precise question for determination before this Court in present petition is that, whether case property could be de-sealed during the statement of a marginal witness of recovery memo, particularly , when no such request was made at the time, when same was exhibited in the statement of seizing officer. In view of the peculiar facts and circumstances of the instant case, this Court is of the considered opinion that, the case property not only could be de-sealed in presence of the Seizing Officer, but, the de-sealing could also be effected when it is so requested by the defence at the time of recording the statement of marginal witness to a recovery memo, as under the law, the propriety of the case property could at best be adjudged after recording the statement of a marginal witness to the recovery memo in whose presence the same has been recovered.
8. It is noteworthy that prosecution is under bounden duty to produce the case property before the Court in order to prove its case against the accused and, when the same is so produced then, certainly , it gives a right to the accused to request for its de-sealing in open Court if, he so desires or advised in order to satisfy himself regarding its contents, weight, seals affixed on packets/parcels etc. In the case in hand the only objection raised by the prosecution is that, the case property could only be de-scaled in presence of the Seizing Officer and, not the marginal witness of the recovery memo. This Court is of firm belief that, when the case property could be de-sealed in presence of Seizing Officer in open Court then, how its de-sealing could be refused in presence of marginal witness of the recovery memo, in whose presence the same has been recovered and sealed at the time of its seizer and more particularly when the prosecution is heavily relying upon his testimony in support of its case. The testimony of a marginal witness to the recovery memo is as important in a case, as the testimony of the Seizing Officer, because no conviction could be maintained upon the sole testimony of Seizing Officer sans the testimony of a marginal witness of recovery memo, as his testimony plays a vital role in establishing the case of prosecution against the accused. Therefore, when testimony of both the witnesses is sine qua non for maintaining the case of prosecution, then, surely , de-sealing of the same could also be effected in presence of Seizing Officer and, the marginal witness as well, as the case may be and thus, the purported de-sealing in no way would affect and prejudice the case of prosecution, rather , the refusal to de-seal the same would seriously prejudice the case of the accused and consequently , his right to a fair trial would be compromised and, that too in a case under capital punishment.
9. The refusal of de-sealing is also violative of the provisions of D Article 10-A of the Constitution, which clearly provides that "for the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process." Hence, request for de-sealing of case property in an open Court is, certainly , a step forward towards the concept of a fair trial, which could not be denied to an accused in any circumstances, as refusal of the same would be deemed to be a denial of his right to have a fair trial in all the situations, which under no canon of justice could be withheld.
10. In view of above, the impugned order is set-aside being, illegal and, thus, not sustainable in the eye of law.
The learned Trial Court is directed to de-seal the case property in the presence of PW-6 and the accused in open Court for its examination but, surely , strictly in accordance with law applicable thereto. Before parting with the judgment, it would be appropriate to hold that if the Trial Court after de-seali ng the case property deems it appropriate, it may re-summon the Seizi ng Officer or the Moharrir who was the custodian of Register 19 at the relevant time for further clarification of the matter , if the circumstances of the case so warrant.
11. Cr.M.No.07-P/2020, moved by the petitioner , for placing on file additional documents i.e. recovery memo and PSI, report also stands allowed.