' MUHAMMAD FARRUKH MEHMUD, J.---Mst. Aalia alias Rani and Mst. Ishrat appellants were sent up to face trial along with Muhammad Tufail father of Mst. Aalia and father-in-law of Mst. Ishrat in case F.I.R. No.303 registered at Police Station, Saddar Bahawalnagar on 20-10-2004, for offence under section 9(c), Control of Narcotic Substances Act, 1997 (hereinafter to be referred as C.N.S.A.).
2. Vide judgment, dated 22-12-2004 Mr. Muhammad Ajmal Hussain, Additional Sessions Judge, Bahawalnagar, while acquitting Muhammad Tufail convicted Mst. Aalia and Mst. Ishrat appellants for offence under section 9(c), C.N.S.A., 1997, and sentence each of them to four years R.I. And to pay fine of Rs.10,000 each, in default of payment thereof each of the convicts was to suffer S.I. For six months. Benefit of section 382-B, Cr.P.C. Was given to the convicts.
3. Feeling aggrieved, Mst. Aalia and Mst. Ishrat have challenged their conviction and sentence through the instant appeal.
4. On 20-1-2004 at 8-30 p.m. Maqsood Ahmad, S.I. (P.W.4) Police Station, Saddar Bahawalnagar, on the basis of secret information formulated a raiding party lady police constables and started searching vehicle at Chowk Murligrah. During search from a tliace Wagon the appellants along with Muhammad Tufail who were sitting behind the Driver, were apprehended. A white colour shopper was recovered from the lap of Muhammad Tufail (acquitted accused). The shopper contained two packets of Charas weighing 1600 grams. Ten grams of Charas was separated from each of the packet and sealed into parcels for the purpose of chemical examination, while the remaining Charas in the packets P.2 and P.3 was also secured vide memo. Exh. P.A. Prepared by Maqsood Ahmad, S. I . P. W .4 and attested by Taj Muhammad. Constable P. W .5, Zafar Iqbal P.W.3 and Sheraz Hussain P.W.1, Mst. Ishrat appellant was searched by the lady constables Mst. Irshad Yaqoob C.W.1 and Mst. Nadia Jan C.W.2. During search, a black purse, white colour Tasbih and cash Rs.130 were recovered. The above-noted articles were taken into possession vide memo. Exh. P.C.
Prepared by P.W.4 and attested by the above-noted P.Ws. Both.The above-noted lady constables also searched Mst. Aalia alias Rani appellant and recovered a back purse, a comb, mirror and cash Rs.150 from her person. The above-noted articles were taken into possession vide memo. Exh. P.B.
Attested by the witnesses mentioned above.
5. After recovery of Charas, complaint Exh.P.F. Was drafted by P.W.4. On the basis of complaint formal F.I.R. No.303 of 2004, Exh. P.D. Was registered by Muhammad Farooq, A.S.-I. P.W.2 at Police Station, Saddar Bahawalnagar, on 20-10-2004, at 9-00 p.m. For offence under section 9(c), C.N.S.A., 1997.
6. On 20-11-2004 the learned trial Court framed the charge against the accused, who pleaded not guilty and claimed to be tried. Thus, the trial commenced.
7. In order to prove its case the prosecution produced nine witnesses in support of its case.
Maqsood Ahmad, S.-I. P.W.4, Taj Muhammad, Constabje P.W.5 and Muhammad Anwar, S.-I. P.W.7 furnished the ocular account. In addition to that P.W.4 stated about the drafting the complaint and investigation of the case. Zafar Iqbal and Sheraz Hussain P.W.1 and P.W.3 respectively, who had attested the recovery memos. Did not support the prosecution case and were declared hostile.
Muhammad Farooq, A.S.I. Stated about the formal registration of the case. The rest of the prosecution witnesses are formal in nature and need not be discussed. After placing on recorded report of the Chemical Examiner Exh. P.G. Which is in positive, the prosecution closed its case on 7- 12-2004.
8. On the same date i.e. 7-12-2004 statements of the accused -under section 342, Cr.P.C. Were recorded. Both the appellants stated that they were innocent and were involved in a false case due to ulterior motives by the local police. The appellants did not appear as witness in their defence under section 340(2), Cr.P.C. Nor they produced any defence witness during trial. However, on 11-12- 2004 the learned trial Court, on its own, summoned Mst. Irshad Yaqoob and Mst. Nadia Jan, Lady Constables and recorded their statements as C.W. 1 and C.W.2. C.W.1 stated that only appellants were arrested by Maqsood Ahmad, S.I. And two packets of Charas were recovered from their possession. She further stated that Muhammad Tufail (acquitted accused) was not travelling in the Wagon nor he was arrested in her presence. C.W.2 stated that three packets of Charas were recovered from the appellants. She further stated that she had not seen Tufail along with the appellants in the Wagon. Both the C.Ws as the prosecution stuck to its original case, as set down in the complaint.
9. We have heard the learned for the parties at length and have scanned the entire record of the case minutely.
10. The learned Additional Sessions Judge has convicted the appellants on the basis of the statements of C.W.1 and C.W.2 which were recorded on 11-12-2004 after recording the statements of the Court witnesses. The learned trial Court did not record the statement of the appellants either under section 342 or 340(2), Cr.P.C. Thereafter,. In other words the learned trial Court convicted the appellant without affording them opportunity to explain the incriminating evidence brought on the record against them. It is by now well-settled that unless a circumstance sought to be used against an accused is put to him during examination under section 342, Cr.P.C. That circumstances cannot be used against him. Omission to draw the attention of an accused person to a circumstances to be used against him is prejudicial to him. So it can neither be considered nor used against him for any purpose. Every incriminating piece of evidence has to be brought to the notice of the accused and unless he is confronted with the material available in evidence against him conviction cannot be sustained. Examination of accused under section 342, Cr.P.C. Was not a mere formality but must to enable accused to explain any circumstances appearing against him in prosecution evidence. It was held by the Hon'ble Federal Court in the case of Abdul Wahab v. The Crown PLD 1955 Federal Court 88:--- "Where "the circumstances appearing in evidence against him" are not put to the accused and his explanation is not taken thereupon, it cannot be said that the purpose of section 342 has been fulfiled. It is not a mere formality, but is an essential part of the trial that the accused should be given notice to the point or points which he just meet in order to exonerate himself."
' In the case of Asif Ali Zardari and another v. The State PLD 2001 SC 568 the Hon'ble Supreme Court observed that:--- "The underlying object of section 342, Cr.P.C. Is to enable an accused to explain the incriminating circumstances in the prosecution evidence appearing against him. In our view, this is the most valuable right being sacrosanct principle of natural justice."
' In the case of Habib Ahmad v. State 1996 PCr.LJ 1783 the learned trial Court recorded the statement of a P.W., A who was earlier dropped after recording the statement of the accused under section 342, Cr.P.C. However, after recording the statement of said P.W. Statement of the accused under section 342, Cr.P.C. Was not recorded thereafter. Dealing with the said point, the Hon'ble Federal Shariat Court held as follows:--- "I am of the view that examination of prosecution witnesses after recording of the statement of an accused under section 342, Cr.P.C. Amounts to treat that statement an empty formality. The trial Court has to put each and every question to the accused with details of those pieces of evidence which have to be made the basis of conviction. It such questions are not put then conviction may not be sustainable. In the present appeal the learned trial Court started examining certain P. Ws.
After recording the said statement under section 342, Cr.P.C. Which leaves no doubt for any sensible person that the said statement was treated only formality. If may be said that the Court can examine certain witnesses if they do not directly affect the case of defence. But for what purpose" To fill certain lacunae? The most painful reality in this case is that P.W. Riaz Hussain had been dropped on 10-10-1994 but was called on 14-1-1995 while the statement of accused under section 342, Cr.P.C. Had already come to end on 6-10-2004. If it is treated an irregularity it is not curable and if it is treated an illegality then the whole foundation of prosecutiim case is shaken.
Thus, this appeal can be allowed on this score alone."
' In the case of Asghar Ali Shah v. The State 1993 SCM R 51, the Hon'hle Supreme Appellate Court observed that the accused was entitled to be re-examined under section 342 or 340(2), Cr.P.C.
After recording fresh evidence of Court witnesses. H. As already noted above in this case the statements of the accused/appellants under section 342, Cr.P.C. Were recorded en 7-12-2004, while the statements of C.Ws. Were recorded on 11-12-2004 while the statements of C.Ws. Were recorded on 11-17-2004. Thereafter the statements of the accused under section 342, Cr.P.C. Or under section 340, Cr.P.C. Were not recorded. It is also noteworthy that P.W.4 Maqsood Ahmad, S.-I., P.W.5 Taj Muhammad, Constable and P.W.7 Muhammad Anwar, S.-I., stuck to the story as given in the complaint, according to which, the recovery was effected from the person of Muhammad Tufail (acquitted co-accused) and not from the appellants. Both the C.Ws. Had also given the divergent statements, as C.W.1 stated that two packets were recovered from the appellants, while C.W.2 stated that three packets were recovered. Both these witnesses have not given any other detail.
They have not even mentioned quality of the recovered Charas.
12. In the above-noted circumstances, we are of the considered opinion that the conviction of the appellants was not sustainable.
13. We have heard the Muhammad Ajmal Hussain, Additional Sessions Judge in Chamber. When confronted with the points noted above, the learned Judge genuninely felt sorrey and promised to be very careful in future. Since the learned Judge has given assurance to remain careful in future, we do not want to proceed against him.
14. As a consequence of the whole discussion, this appeal is allowed and the judgment, dated 22- 12-2004 is set aside. The appellants are acquitted of the charge and would be released from jail forthwith, if not required in any criminal case.