2010 P Cr (PLP)

AMER RAZA NAQVI, J.

Brief facts of this case is that a criminal case bearing Sessions Case No.452 of 2004 (New No.127 of 2006) is pending before the Court of District and Sessions Judge, Khairpur. This case was registered as Crime No.83 of 2004 Police Station Mirwah, under sections 302, 201, 404, 18, 149, P.P.C. During the investigation a recovery was made on 19-6-2008 under a memo. of recovery and certain articles i.e. hammer, two Lathies, clothes of deceased Yasir Nawaz and accused Jamshed were recovered which was sent for chemical examination. Subsequently when the case was being tried by the learned trial Court an application was made by Investigation Officer for collection of case property for re-examination to be conducted by a Board constituted by Health Department. The learned trial Court vide order, dated 19-2-2007 allowed such requests. Thereafter complainant moved an application before the learned trial Court and requested that trial Court should refuse the request of Investigating Officer for returning of case property. This application was dismissed vide order, dated 28-2-2007. The reason for rejection of application as given in the order of Sessions Judge is that in' the ordinary course Medical Board is always constituted by the higher authorities of Health Department and as such orders from the Court were not required. Learned counsel for the applicant argued that memo. of recovery was made on 19-6-2004 and after lapse of many years application for collection of case property was made by Investigating Officer. Learned counsel for the applicant submits that no attempt was made at initial stages for re-examination of the property and as such it was not proper for the trial Court to allow such requests at this stage. He has relied upon case-law reported as State v. Amjad Ali PLD 2007 SC

85. On the other hand learned counsel for the private respondents and Mr. Ali Haider Ada State Counsel argued that investigation is a never ending process and at any stage re-examination of the articles can be ordered and conducted. They further submitted that no prejudice would be caused to the applicant by re-examination of the case property. I have heard all the learned counsel appearing in the matter. As pointed out by learned counsel for the applicant it is a fact that initial memo. of recovery was prepared on 19-6-2004 and requests for collection of property was made on 15-2-2007 which was allowed on 19-2-2007. No permission for constitution of Board was obtained from the trial Court and it was constituted by the Health Department and no plausible reason has been advanced for not applying to the trial Court for re-examination of case property. The Honourable Supreme Court in case of State v. Amjad Ali (supra) held as follows:

"Instances are not unknown and are in fact increasing by the day, where unscrupulous litigants manoeuvre replacement of the substances and articles deposited in the Malkhana; then make prayer for the re-examination of the substance and the result obviously is that the narcotic substance which had already been examined/tested as a narcotic substance was found to be something else." In my humble view since no permission was obtained from the trial Court for constitution of Board for re-examination of the property and furthermore following the principle laid down by the Supreme Court in above mentioned case, I am of the humble view that the proceeding of re-examination of the case property was not proper and was made in violation of guidelines provided by Honourable Supreme Court and as such this criminal revision is allowed and orders of trial Court dated 19-2-2007 and 28-2-2007 are set aside. H.B.T./W-9/K Application allowed.