2004 P Cr (PLP)

2. The relevant fact that a case under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with section 377, P.P.C. was registered at Police Station Saddar Muzaffargarh on 19-10-2000 by one Muhammad Tariq against the petitioner levelling allegations of commission of sodomy against him. After investigation petitioner was challaned to Court. While the trial was underway, on 27-8-2003, the learned Sessions Judge seized of the case passed order adjourning the case to 28-8-2003 for presence of the Chemical Examiner. On 28-8-2003 the matter was adjourned for the same purpose to 29-8-2003. An application had been moved during this period by the petitioner making grievance of the fact that the prosecution had closed its case without exhibiting the report of the Chemical Examiner which may be summoned from his office. On 29-8-2003 the clerk of the Chemical Examiner was present in the Court and he submitted an attested copy of the Chemical Examiner? and made a statement that the original has already been sent to the police but as per record, 'the same was not available with the police. The application moved by the petitioner was rejected with the request the attested copy of the report of the Chemical Examiner, produced by the clerk was not brought on record.

3. After the closure of the defence evidence, another application was moved by the petitioner on 13-10-2003 with the prayer that the carbon copy of the report of Chemical Examiner, Multan be requisitioned. This application has been dismissed through the impugned order dated 16-10-2003 and matter was adjourned to 23-10-2003 for arguments.

4. It is contended by the learned counsel for the petitioner that the learned trial Judge has erred in law in turning down the request of the petitioner that the carbon copy of the report of Chemical Examiner so as to place on record. On the other hand, learned counsel for the complainant has, while vehemently opposing this revision petition, argued that earlier application moved by the petitioner having been dismissed on 30-8-2003 the second, application, culminating in the impugned order, was not maintainable in law.

5. This revision petition merits acceptance. It is well-settled that the cause of justice cannot be permitted to be sacrified at the altar of the technicalities. Admittedly, anal swabs of the alleged victim were sent to the Chemical Examiner for report which was prepared by the said office. Unfortunately, the same appears to have been lost either en-route to the Investigating Officer or misplaced by the police while the investigation' was on.

6. Undisputedly, the report of the Chemical Examiner is likely to have important bearing on the outcome of the case. It was the duty of the prosecution to tender the same in Court during the trial. It was inconsequential as to whether or not the original report reached the Investigating Officer or was misplaced by the police while preparing the final challan report. The prosecution in all fairness should not have opposed the prayer of the petitioner-accused to bring on record the certified copy of the report of the Chemical Examiner on 16-10-2003. It was without saying that it was the duty of the Court to ensure that all the relevant evidence/material was brought on record before adjudicating upon the case. Clearly, sufficient justification existed on record for permitting the clerk of the Chemical Examiner to produce the certified copy of the report as the original was reported to have been lost. It was out of sheer desperation that the petitioner moved second application for summoning the carbon copy of the original report. Photostat copy of the original report of the Chemical Examiner falls under the purview of section 73 of the Qanun-e-Shahadat Order and since the original was proved to be lost it was only just and, fair that the same was ordered to be placed on record and duly exhibited. The learned trial Judge failed to notice the settled principle that no one can be permitted to put premium on its own lapse while passing the impugned order it was not ensured that no prejudice would be caused to the accused due to the failure of the prosecution to produce this material piece of evidence on record.

7. For what has been stated above, this revision petition is accepted" and the impugned order is set aside. The learned trial Judge is directed to summon the concerned officer from the office of Chemical Examiner, Multan and ensure that the certified/carbon copy of the report of the B Chemical Examiner in this case is duly brought on record and exhibited. Thereafter, supplementary statement of the petitioner tinder section 342, Cr.P.C. shall be recorded qua the said report and reasonable opportunity would be granted to him to lead further defence evidence, if so desired, by him.

8. This case is lingering on for snore than two years. The trial Court is directed to dispose it of within one month, positively, with report to Additional Registrar of this Court, Lahore Branch Registry. H.B.T./M-107/FSC Petition accepted.