' RAHMAT HUSSAIN JAFFERI, J.---The present appeal is directed against the judgment dated 19-2- 2003, passed by Special Court, Control of Narcotic Substances, Karachi Division, in Special Case No.523 of 2000 (State v. Zahid and another) by which the learned Judge had convicted the appellant under section 9(b), Control of Narcotic Substances Act, 1997 and sentenced him to suffer R.I. For 3-1/2 (Three and half years) and fine of Rs.1,00,000, or in default thereof, to suffer R.I. For six months more, with benefit of section 382-B, Cr.P.C.
2. The facts giving rise to the present appeal are that S.I. Muhammad Ashiq of ANF alongwith Inspector Nawabuddin Dogar and other staff was present at International Departure Hall of Jinnah Terminal Qaid-e-Azam Airport and were performing their duties. On 18-2-1998 at 2-05 a.m., they were searching the passengers when appellant Zahid Hussain came at the counter. He was found with something inside his clothes, therefore, he was suspected. A.S.-I., Muhammad Ashiq and Inspector, Nawabuddin Dogar took the appellant in a cabin where his personal search was conducted. They found 817 grams of heroin wrapped in a plastic packet, which was kept under his underwear. The said heroin was secured. A Mashirnama to the above effect was prepared. From the search of appellant, some cash was also secured. They informed the matter to their higher officials and then Syed Liaqat Ali Zaidi, A.S.-I., A.N.F. Was called before whom the appellant and properties were produced. Statement of Muhammad Ashiq was recorded, which was subsequently incorporated in 154, Cr.P.C. Book. Out of 817 grams of heroin, a sample of 10 grams was taken out for sending it to the Chemical Analyser for examination and report. The sample and the remaining property were sealed separately and such Mashirnama was prepared.
3. The A.N.F. Police started investigation. They sent the property to the Chemical Analyser for examination and report. The said report was in positive. After completing the investigation, the appellant was challaned in the Court of law where he was tried and convicted, as mentioned above under the impugned judgment.
4. The appellant was dissatisfied with the said judgment; therefore, he has preferred the present appeal.
5. We have heard the Advocate for the appellant, Special Prosecutor for A.N.F. And with their assistance perused the record of this case very carefully.
6. The learned Advocate for the appellant has stated that there are material contradictions in the evidence of witnesses; that initially Mashirnama of arrest and recovery was prepared by the complainant Muhammad Ashiq which shows the total weight of heroin as 97 grams whereas second Mashirnama prepared by Investigating Officer and F.I.R. Show the total weight of heroin as 817 grams; that no person from P.I.A. Counter where the property was weighed has been examined; that the trial Court had not put any question with regard to the Chemical Analyser report to the appellant while recording his statement under section 342, Cr.P.C., therefore, the said piece of evidence cannot be used against the appellant; that the case of the prosecution is highly doubtful.
On the proposition that a single doubt appearing in the evidence entitles the accused to be acquitted from the case, he has relied upon a case reported in 1995 SCM R 1345.
7. On the other hand learned Special Prosecutor. A.N.F., has stated that the evidence of all the witnesses are in conformity with each other; that the contradictions pointed out by the Advocate for the appellant are minor in nature; that all the witnesses deposed that the weight of the heroin was 817 grams which was not challenged by the appellant in the cross-examination nor any suggestion was put to them that the total weight of the property was 97 grams; that some mischief has been played with the Mashirnama prepared by the complainant Muhammad Ashiq as some manipulation has been made at the place where weight of heroin was shown; that on minute examination it will be seen that in fact it was 817 grams. He has further stated that the trial Court had not asked any question with regard to Chemical Analyser report from the appellants but that is merely an irregularity, which can be cured under section 537, Cr.P.C. He has supported the impugned judgment.
8. We have given due consideration to the arguments and examined the evidence available on the record.
9. From the evidence, it is clear that the-case of the prosecution bases upon the evidence of complainant S.-I. Muhammad Ashiq and P.W. Inspector, Nawabuddin. Both the P.Ws. Have categorically stated that on the date and time of the incident they were performing their duties at Quaide-Azam Airport. When they were checking the passengers, they found the appellant behaving suspiciously. On his personal search, 817 grams of heroin were secured from under his underwear, which he was wearing at that time. They informed the incident to the higher officials and Investigating Officer, Syed Liaqat Ali Zaidi who took out 10 grams from heroin as sample for sending it to the Chemical Analyser- for examination and report. Their evidence is fully supported and corroborated by the Investigating Officer, Syed Liaqat Ali Zaidi. The report of Chemical Analyser, Exh.7-D has been produced which is in positive. All the P.Ws. Were subjected to cross- examination but the appellant could not get anything from them, which can create doubt in their statements. There is no enmity in between the P.Ws. And appellant, as such; the witnesses have no motive or cause to implicate the appellant in this crime.
10. We have examined the Mashirnama (Exh.5/A) and find that some overwriting has been made at the place of weight of heroin so as to read it from 817 to 97, otherwise, the correct weight viz. 817 grams has been shown in the F.I.R., Mashirnama of arrest and recovery prepared by Investigating Officer. On minute examination of Exh.5/A, we find that overwriting has been made over the numbers "81" out of 817, by putting big `O' over 81 so as to change both the numbers from 81 to read as 9. This, by itself, is not sufficient to discard the entire evidence of the prosecution, which clearly establishes that the weight of herein was 817 grams. As such, the arguments of the learned Advocate for the appellant have no force at all.
11. We have also examined the statement of appellant recorded under section 342, Cr.P.C. We find that the trial Court did not ask the question from the appellant about the Chemical Analyser Report. Under section 342, Cr.P.C. All the incriminating pieces of evidence appearing in the statements of the witnesses are required to be put to the accused to obtain his explanation. It is well-settled principle of law that if any such piece of evidence is not put to the accused then the said piece of evidence cannot be used for convicting him. Particularly, in a case like this when the entire case hings upon the report of Chemical Analyser. If the said report is taken out of consideration then the entire case of the prosecution would fall. In a case of Muhammad Mumtaz v. The State 1997 SCM R 1011; a report of Chemical Analyser was not put to the accused in his statement recorded under section 342, Cr.P.C. The Honourable Supreme Court of Pakistan treated it as a material irregularity and illegality, and held that it cannot be cured, therefore, remanded the case to the trial Court. The Honourable Supreme Court of Pakistan observed as under:-- "We have heard the learned counsel for the parties and have perused the record. Admittedly, the appellant when examined under section 342, Cr.P.C. Was not put the report of the Chemical Examiner, which is violative of the mandatory provision of law. Reliance can be placed on Din Muhammad v. The Crown 1969 SCM R 777."
12. In view of the.Authoritative dictum of Honourable Supreme Court of Pakistan, we are conscious of the fact that the case is required to be remanded to the trial Court for recording the statement under section 342, Cr.P.C. By putting a question with regard to the Chemical Analyser Report. In that behalf, two courses are available with us. Either to remand the case to the trial Court for the said purpose or to record the statement of the appellant under section 342, Cr.P.C. By this Court. If we remand the case to the trial Court then the case would again be delayed. If we record the statement then the matter can be decided expeditiously, as such, in exercise of powers under section 428, Cr.P.C. Read with section 561(A), Cr.P.C. We found it expedient in the interest of justice to record the statement under section 342, Cr.P.C. Of the appellant by us instead of remanding the case to the trial Court. In pursuance of the Said order, a question was put to the appellant about the report of Chemical Analyser but he stated that he did not know about the said report. The appellant did not take any further plea, examined himself on oath, or examined any witness in his defence in spite of opportunity given to him. Thus, the objection raised by the Advocate for the appellant has been adequately meted out.
13. After considering the material available on the record, we are of the considered view that the prosecution have proved their case against the appellant, therefore, the appellant has been rightly convicted by the trial Court under the impugned judgment and awarded adequate substantive sentence but the sentence of fine appears to be on higher side which requires to be reduced.
14. Consequently, we maintain the conviction and sentence of three and half years but the fine is reduced from Rs.1,00,000 to Rs.30,000. The imprisonment of six months, in default in payment of fine is also reduced to imprisonment of two months. Benefit of section 382-B, Cr.P.C. Already granted is maintained.
15. On perusal of short order it, transpires that there is a typing mistake in respect of sentence of imprisonment as it has been shown three years instead of three and half years. The said mistake is corrected and the words "three years" appearing in the seventh line of second paragraph of the short order be corrected with red ink so as to read as "three and half years".
The appeal is disposed of in the above terms.