1999 PLP 3105 (MLD)

"In any case the evidence of this Mashir is not .of much use to the prosecution particularly when the case property has not been produced and only three cartons have been produced from 92 or 90 cartons alleged to have been seized. On this ground also the prosecution has failed to prove its case." 1989 P. Cr. L. J. 1738 reads at page 1739 as under: "The prosecution was duty bound to produce before the Court the crime property and made it as an exhibit or article so as to afford assurance to the Court that in fact the crime property said to have been recovered from the possession of the appellant was in fact so recovered. In the absence of dong so the conviction of the appellant is obviously vitiated " 1986 P Cr. L J 2173(1) reads: " S .426. Penal Code (XLV of 1860). section

457. Lurking house trespass. Mare of omplainant allegedly stolen. No evidence on record showing house trespass. One of witnesses stating nothing about stolen mare. Mare not produced in Court during trial. Sentence of accused was suspended during pendency of appeal in circumstances. " 1984 P Cr. L J 3096 (2) in its para. No. 4 reads: "There is till another aspect of this case which is to the effect that the case property in this case i.e. 20 guns and cartridges were never recovered by the Investigating Agency and never made case property. In these circumstances these guns and cartridges were not produced in the Court. Mr. Suleman Kassam- has stated that adjudication proceedings were filed in respect of the same allegations but they were dropped for the reason that the said guns and cartridges could not be seized by the Investigating Agency hence the question of confiscation does not arise." 1983 P Cr. L J 1869 at head note (b) reads: "S.103. Stolen property not produced when recovery witness deposing in Court. Recovery rules out of consideration. Penal Code (XLV of 1860, S. 411. " 1982 P Cr. L J 1067 read on the same subject as under: "S.156 (1) (8) read with section

178. Smuggling. Recovery of smuggled goods. Case property neither produced nor identified by witnesses in presence of accused. Conviction and sentence set aside and case remanded for retrial. " 1973 P Cr L J 395 at head note (a) reads "Criminal trial. Prosecution, duty of. Prosecution bound to produce crime property before Court and mark it as an exhibit. Failure to do so vitiates trial. Penal Code (XLV of 1960). Section

411. Prosecution is duty bound to produce before the Court the crime property and mark it as an exhibit or article so as to afford assurance to the Court that in fact the crime property, said to have been recovered from the possession of the appellant, was in fact so recovered. In the absence of doing so the conviction of the appellant is obviously vitiated." Now comes the turn of another limb of this contention. Admittedly, neither the case property nor any samples thereof were sent to the chemist nor there is any evidence of authorised expert on the record. In 1977 P Cr. L J 355 the ruling in this context is quoted verbatim: "S.

61. Conviction property of Contention that conviction could not be lawfully based on order evidence of witnesses without getting stuff allegedly lahan examined chemically nor drums containing lahan could be exhibited without producing before Trial Court. Contention, held, not devoid of force. Infirmities, held further, not curable under law. Conviction and sentence, set aside, in circumstances. " 1985 P Cr .L. J 8 reads at head-note (i) as under 'Ss. 3 &

4. Intoxicant. Possession and manufacturing of Offence of Evidence appreciation of Acquittal, basis for Police not obtaining report of chemical examiner and not sending recovered liquor and lahan for scientific chemical analysis. Excise Inspector being not expert witness, his statement carrying no weight. Held: In absence of chemical analysis of recovered liquor and lahan, what was recovered from accuse not to be safely held to be actually liquor and lahan as defined by statute. Conviction and sentence set aside." 1981 Kar 195 reads at placentium B: "The learned counsel has cited before me 1976 P Cr. L. J. 643 in which it is clearly held that as per requirements of section 45 of Evidence Act such certification that the material recovered is contraband must come from expert witness and the conviction recorded in a case in which reliance was placed on the statement of Officer of Customs and Excise proving the recovery of charas was set aside. In the instant case also no reliance can be placed on the certificate of the Excise Officer that the material recovered from the Possession of the accused was charas. " 1984 P. Cr. L J 2342 reads as under: "S.43 (3). Evidence Act (1 of 1872), section

45. Criminal Procedure Code (V of 1898). Section

439. Expert evidence not examined to know whether material recovered from accused was really Charas. Omission fatal to prosecution case. Accused given benefit of doubt and acquitted. (Benefit of doubt). " 1976 P Cr. L J 643 at head-note (b) reads: "S.45. Expert witness. Conviction based on statements of Customs and Excise officials proving recovery of alleged charas from accused persons. No expert witness examined to prove substance of recovered articles. Conviction and sentence set aside, in circumstances. Punjab Excise Act (1 of 1914), S.61(1)." 1992 P. Cr. L J 1985 at head-note (b) reads "(b) Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.

4. Appreciation of evidence. Investigating Officer did not send the recovered articles to the Chemical Examiner, but sent the same to an Excise Sub-Inspector who had issued a simple certificate in his capacity as an Excise Sub-Inspector which by no stretch of imagination could be called an opinion of the Expert. There was, thus, no evidence that articles recovered from the accused were intoxicants. Conviction and sentence of accused were set aside in circumstances. Retrial of accused, however, was not ordered as he had been facing the rigours of the proceedings for the last about ten years. " While considering these rulings and scores of others, it appears to be a stare decisis by now that the conviction in such cases cannot be sustained in which neither the recovered property was produced in the Court, nor any opinion of expert was obtained to prove the nature and nomenclature of the recovered intoxicant. Apart from others only, on this one single contention divided into two limbs, the impugned judgment was set aside and the appellant was acquitted from the charges, conviction/sentence and appeal was allowed by my short order to which State also conceded. These are the reasons for the said order. H.B.T/44/FSC Appeal allowed.