TANZIL-UR-REHMAN, CJ.--- This jail criminal appeal arises out of judgment, dated 5-9-1990, passed by the learned Additional Sessions Judge, Rawalpindi, convicting the appellant under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and sentencing him to two years' R.I., with whipping numbering ten stripes and a fine of Rs.3,000 and in default to further undrego three months' R.I., for the recovery of 12 grams of heroin and 30 grams of Charas from the possession of the appellant/convict on 7th of June, 1988 at Chamra Godown within the precinct of Waris KhanaPolice Station, Rawalpindi.
2. The prosecution in all examined six witnesses. P.W.1 Muhammad Ashiq, S.I., recorded F.I.R.
(Exh.P.A./1) on the complaint (Exh. P.A.) sent by Muhammad Saeed, S.I., P.W.5. P.W.2 Muhammad Nawaz, A.S.I., received four parcels and kept in Malkhana for safe custody. He sent the same to the Chemical Examiner through P.W.4 Ashiq Constable. P.W.3 Muhammad Ibrahim, Excise Inspector and In charge of raiding party is a recovery witness of 12 grams of heroin and 30 grams of Charas.
P.W.4 Muhammad Ashiq, Constable, took the parcels to the Chemical Examiner. P.W.5 Muhammad Saeed, forwarded the complaint and also investigated the case. P.W.6 Kausar Walayat Sheikh, Assistant Excise and Taxation Officer, a recovery witness drafted the complaint and sent the same to P.W.1 Muhammad Ashiq for recording the F.I.R.
3. The appellant was examined under section 342, Cr. P.C. And also made statement on oath under section 340(2), Cr. P.C.
4. P.W.6 Kausar Walayat Sheikh, Assistant Excise and Taxation Officer, deposed in Court that on the day of occurrence he was on patrol duty along with Saleem Nadeem, Muhammad Ibrahim, Excise Inspectors, Syed Ahsan and Ahmad Khalid, Excise Inspectors and two Excise Constables and one Lady Constable and A.S.I. And a Foot Constable. They were present at Chowk Glass Factory where he received a spy information that the appellant present in Court was selling heroin and Charas near Chamra Godown. A raid was conducted and the appellant was found present near Chamra Godown. On personal search through Muhammad Ibrahim, Excise Inspector P.W.3, 12 grams of heroin and 30 grams of Charas were recovered from the pocket of the accused present in Court.
Five grams Charas and two grams heroin were separated for chemical analysis and were made into separate sealed parcels, which were taken into possession vide recovery memo. Exh. P.B. He drafted the complaint Exh. P.A. Duly signed by him and handed over the appellant and the case property to the police.
5. P.W.3 Muhammad Ibrahim, Excise Inspector, opposed in Court that on 7-6-1988 he along with other Excise Officers, who were present at Chamra Godown, on receiving spy information about the appellant and on the pointation of the informer they apprehended the appellant and that he conducted his personal search and recovered from the front pocket of the appellant 12 grams of heroin and 30 grams of Charas. Two grams heroin and five grams Charas were set apart for chemical analysis and were made into separate sealed parcels at the spot, duly signed by P.W.6 in his presence. In his statement under section 342, Cr.P.C., the plea taken by the convict/appellant is that the police wanted him to act as informer but he refused to do so and, therefore, he had been falsely involved in this case. But in his statement on oath under section 340(2), Cr. P.C., he made no reference to this plea and simply stated that `nothing was recovered from my possession. I have been falsely involved in this case'. There is, however, on record a photo state copy of a certificate containing information as to the previous cases against the convict/appellant to the effect that the convict/appellant was previously involved in seven narcotics cases mentioning the numbers of F.I.R. Registered against him during last ten years viz. 1978 to 1988. The certificate has been signed by Muhammad Farooq, Naib-Muharrir, Police Station Waris Khan for P.W.5 Muhammad Saeed, S.I., Police Station Waris Khan. It thus appears that the appellant/convict is a habitual narcotics pedlar.
6. In view of the evidence, which is consistent, the recovery stands proved and calls for no interference. The appeal is dismissed. However, the benefit of section 382-B, Cr. P.C. Will remain intact.
7. Before parting with this case, we would like to observe that during cross---examination of the appellant under section 340(2), Cr. P.C., a number of questions were asked from him which were incriminatory in nature. This is a clear breach of the protection given to the accused under section 340(2), Cr. P.C. The learned trial Judge ought to have disallowed such questions and informed the appellant that he was not required to answer any question tending to show that he has committed or been convicted for such offence other than the offence with which he was being tried or was of a bad character except in cases laid down under sub-- clauses (i), (ii), (i.e) of clause (c) of subsection (2) of section 340, Cr. P.C. The learned trial Judge should take note of it and be careful in future.
As a consequence, suo motu Notice No.163/I of 1990 is discharged.
M.B.A./581/F.S.C.Notice discharged.