2023 SCMR 781
سپریم کورٹ کا تازہ ترین جس میں اس موضوع سے متعلقہ تمام قوانین ضابطہ فوجداری، نارکوٹکس رولز، پولیس رولز، ہائیکورٹ رولز اینڈ آرڈرز وغیرہ کو نہایت تفصیل سے زیر بحث لایا گیا ہے
نوٹ: یہ ججمنٹ ابھی تک lawsite پر اپلوڈ نہ ھوئی ھے۔کتاب سے رجوع کریں
Under which provisions of law the case property to be produced and exhibited during the trial?
Which provisions of law deal with the proposition?
Rule 22.16 of the Police Rules, 1934 (“the Police Rules”) deals with the “case property”. Sub-rule (1) thereof provides, inter alia, that in certain circumstances, police shall seize weapons, articles and property in connection with criminal cases, and take charge of property which is unclaimed. Sub-rule (2) thereof provides, inter alia, that each weapon,article or property (not being cattle) seized under the above sub-rule shall be marked or labelled with the name of the person from whom, or the place where, it was seized, and reference to the case diary or other report submitted from the police station. If articles are made up into a parcel, the parcel shall be secured with sealing wax, bearing the seal impression of the responsible officer, and shall similarly be marked or labelled. Such articles or parcels shall be placed in safe custody, pending disposal as provided by law or rule. Sub-rule (3) thereof provides, inter alia, that the police shall send to headquarters or to magisterial outposts all weapons, articles and property connected with cases sent for trial, as well as suspicious, unclaimed and other property, when ordered to do so by a competent Magistrate. Sub-rule (4) thereof provides, inter alia, that motor vehicles detained or seized by the police in connection with cases or accidents shall be produced before a Magistrate after rapid investigation or by means of in-complete challan. The evidence relating to the identity or condition of the vehicle should be led and disposed of at an early date, and the Magistrate should then be invited to exercise the discretion vested in him by Section 516-A, Code of Criminal Procedure, to order that the vehicle be made over to the owner pending conclusion of the case on security to be produced whenever demanded by the Court.
Rule 22.18 of the Police Rules deals with “custody of property”. Sub-rule (1) thereof provides, inter alia, that property exceeding in value of Rs.500/-, whether appertaining to cases or seized on suspicion, or taken as unclaimed, shall be forwarded as soon as possible to district headquarters for deposit in the treasury in accordance with Police Rule 27.18(2) or, in the case of property connected with a case to be tried at an outstation or Tahsil, to the Tahsil Treasury, where it shall be placed in the Tahsil strong-room under the charge of Tahsildar. Sub-rule (2) thereof provides, inter alia, that all case property and unclaimed property, other than cattle, of which the police have taken possession, shall, if capable of being so treated, be kept in the store-room. Otherwise, the officer in-charge of the police station shall make other suitable arrangements for its safe custody until such time as it can be dealt with under sub-rule (1) above. Each article shall be entered in the store-room register and labelled. The label shall contain a reference to the entry in the store-room register and description of the article itself and, in the case of articles of case property, a reference to the case number. If several articles are contained in a parcel, a detail of the articles shall be given on the label and in the store-room register. The officer in-charge of the police station shall examine, government and other property in the store-room, at least twice a month and shall make an entry in the station diary on the Monday following the examination to the effect that he has done so.
Rule 22.70 of the Police Rules provides that Register No. XIX shall be maintained, wherein, with the exception of articles already included in Register No. XVI, every article placed in the store-room shall be entered and the removal of any such article shall also be noted in the appropriate column.
Rule 27.11 of the Police Rules provides that the head of the legal branch shall, with the help of his assistants, maintain the Registers, including Register of case property and unclaimed property in Form 27.11(1), which may be destroyed three years after being completed.
Rule 27.12 of the Police Rules provides that at headquarters, the Deputy Superintendent of Police (Legal), with the assistance of his staff, shall take charge of weapons, articles and property connected with their safe custody until the case is decided. When final orders are passed in the case, such weapons, articles and property shall, if not made over to the owner, be made over to the District Nazar. The Deputy Superintendent of Police (Legal) shall similarly take charge of, and be responsible for, the safe custody of suspicious property until the issue of the proclamation under Section 523 of the Code of Criminal Procedure, when such property be made over to the District Nazar.
Thus, the Police Rules mandate that case property be kept in the Malkhana and that the entry of the same be recorded in Register No. XIX of the said police station. It is the duty of the police and prosecution to establish that the case property was kept in safe custody, and if it was required to be sent to any laboratory for analysis, to further establish its safe transmission and that the same was also recorded in the relevant register, including the road certificate, etc. The procedure in the Police Rules ensures that the case property, when is produced before the court, remains in safe custody and is not tempered with until that time. A complete mechanism is provided in Police Rules qua safe custody and safe transmission of case property to concerned laboratory and then to trial Court.
Now adverting to the Lahore High Court Rules and Orders (Civil and Criminal) (“High Court Rules”), it is to be noted that Part B of Chapter 24 of Volume III thereof deals with the trial of the Sessions cases. Rule 14-E thereof provides, inter alia, that care is often required in tracing the custody of a prisoner's substances, personal food, bloodstained clothes, etc. The evidence should never leave it doubtful as to what person or persons have had charge of such articles throughout the various stages of the inquiry, if such doubt can be cleared up. This is especially necessary in the cases of articles sent to the chemical examiner. The person who packs, seals and dispatches such articles should invariably be examined. Rule 14-F of the High Court Rules provides that clothes, weapons, money, ornaments, food and every article which forms a part of the circumstantial evidence should be produced in Court and their connection with the case and identity should be proved by witnesses.
Rule 14-H thereof provides, inter alia, that all exhibits should be marked with a letter or number. Articles which are produced in evidence should have a label attached to them bearing a number, and that number should be quoted throughout the record wherever any such article is referred to and should be distinctly marked as “admitted or not admitted”. If the exhibits have already been assigned numbers by the police, then that series of numbers should be mentioned to avoid confusion. A printed label should be affixed or attached to each exhibit containing, number of exhibit, produced by, admitted (signature of court), date, case and description of exhibits. The Sessions Judge is responsible to see that these entries are properly made.
Thus, under the Police Rules and the High Court Rules, mentioned above, in all cases, especially in the cases of articles sent to the chemical examiner, it is necessary that there be no doubt as to what person or persons have had charge of such articles throughout various stages of the inquiry. Besides, the person who packed, sealed, and dispatched such articles should invariably be examined. Further, the clothes, weapons, money, ornaments, food and every other article that forms a part of the circumstantial evidence has to be produced in court, and their connection with the case and identity should be proved by witnesses.
Now, adverting to the relevant provision of the Code of Criminal Procedure, 1898, Section 516-A thereof deals with the order for custody and disposal of property pending trial in certain cases. It provides that when any property regarding which any offence appears to have been committed, or which appears to have been used for the commission of any offence is produced before any criminal court during any inquiry or trial, the court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and if the property is subject to speedy or natural decay, it may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of. The first proviso thereto provides that if the property consists of explosive substances, the court shall not order it to be sold or handed over to any person other than a government department or office dealing with, or to an authorized dealer of such substances. The second proviso thereto provides that if the property is a dangerous drug, intoxicant, intoxicating liquor or any other narcotic substance, seized or taken into custody under various laws, the court may, either on an application or of its own motion, and under its supervision and control, obtain and prepare such number of samples of the property as it may deem fit for safe custody and production before it or any other court, and cause destruction of the remaining portion of the property under a certificate issued by it in that behalf. The third proviso thereto provides that such samples shall be deemed to be whole of the property in an inquiry or proceeding in relation to such offence before any authority or court.
Thus, the Court, on an application or of its own motion, under its supervision and control, can obtain and prepare such a number of samples of the property as it may deem fit for safe custody and production before it or any other Court and can cause the destruction of the remaining portion of the property under a certificate issued by it in that behalf. Only then shall such samples be deemed to be the whole of the property in an inquiry or proceeding in relation to such offence before any authority or court. Even then, the sample parcels and the certificate are to be produced before the trial court and required to be exhibited, alongwith the report of the said Magistrate.
Another important provision is the Control of Narcotic Substances (Government Analysts) Rules, 2001, which provides the procedure to be followed by the police while dispatching the narcotic for the test or analysis and also the procedure to be adopted by the analyst.
The above provisions make it clear that samples of reasonable quantity have to be drawn at the spot from the narcotic substances and the same have to be dispatched to the nearest Testing Laboratory. It is important to note that the samples have to be dispatched for analysis at the earliest, but not later than seventy-two hours of the seizure. Further, the samples have to be dispatched for analysis, either by insured post or through special messenger duly authorized for the purpose, under the cover of a “Test Memorandum” specified in Form-I and the envelope should be sealed and marked as “Secret Drug Sample/Test Memorandum”. After reaching the laboratory, the sealed envelope containing the samples should be carefully opened and given a distinct laboratory number, further subdivided agency-wise and the laboratory numbers should form a continuous series for each year, and for that purpose, a separate register has to be maintained. Thereafter, all samples have to be passed to the analyst on the same day, who has to keep the same in his safe custody, examine and record their weight in the Test Memorandum, compare the markings on the Test Memorandum with the markings on the package envelopes, and to ensure to test the relevant samples. It is emphasized that in no case should the analysis of a narcotic substance be delayed, as the courts refuse to extend remand beyond fifteen days in the absence of a chemical report.
In the rules referred to above, great emphasis has been laid on the safe custody and safe transmission of the narcotic substances and their transmission to the laboratory within seventy-two hours, perhaps for the reason that if the recovery of the narcotics from the custody of an accused is proved, he has to be convicted relying upon the report of the chemical examiner.
Further, the case property is always relevant for the decision of the case because if the narcotics are recovered from any accused, the same should have been shown in court, and then the report of the laboratory would be helpful to the prosecution. Likewise, in narcotics cases, the conviction and sentence are based on the possession of the narcotics or on aiding, abetting or associating with the narcotics offences. In that eventuality, it is incumbent upon the prosecution to produce the case property before the court to show that this is the narcotics/case property that was recovered from accused’s possession. The defense counsel may then request the court to de-seal and weigh the case property.
Even otherwise, if the prosecution claims that huge quantities of narcotics, i.e., many mounds, were recovered but the same were never produced, then how can the accused be convicted for the said narcotics, which were never before the court or may not even be in existence? However, if the narcotics were destroyed under Section 516-A of the Code, then, of course, the said practice should be done after issuing notice to the accused, and the destruction should be done in the presence of the accused or his representative. The Magistrate is required to prepare samples of the narcotics substance that was ultimately destroyed so that a representative of the destruction process could be produced in the Court; besides, the certificate so issued by the Magistrate would also be relevant and the same should be exhibited in the Court. When the contraband, on the basis of which a person is convicted, is not produced or exhibited, how can a conviction be sustained on the basis of the same? When the material (narcotics) is neither produced nor exhibited, the presumption can be drawn that it is not in existence at all. When the best evidence, i.e., the case property/ narcotics, vehicle, etc., is withheld by the prosecution and there is no plausible explanation for the non-production of the same in court, an adverse inference or assumption against the prosecution could be drawn under Article 129-(g1) of the Qanoon-e-Shahadat Order, 1984, and it can easily be presumed that no such material/narcotics is in existence. Needless to observe that if the case property is not produced in Court, the concerned authority/prosecution is required to furnish plausible explanation based upon concrete material and not mere lame excuses.
It is further to be noted that in a stringent law such as the CNSA, where capital punishment or imprisonment for life can be awarded even on the testimonies of police officials, in order to bring home guilt against an accused, it is necessary for the prosecution to prove their case through reliable, unimpeachable, and confidence-inspiring evidence beyond any reasonable doubt. The harder the punishment, the stricter the standard of proof
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