' This appeal is directed against the judgment, dated 20-7-1998 passed by learned Magistrate Section 30, Jhang whereby the appellant has been convicted under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the "Prohibition Order") and sentenced as under:--
(i) For keeping in possession 500 grams of "Charas", sentenced to one year's R.I. With fine of Rs,2,004 or in default thereof to further undergo S.I. For six months.
(ii) For keeping in possession, 100 grams of opium, sentenced to undergo one year's R.I. With a fine of Rs,1,000 or in default thereof to further undergo S.I. For six months.
(iii) For keeping in possession,
15. Grams of heroin, sentenced to undergo R.I. For three years with a fine of Rs,2,000 or in default thereof to further undergo S.I. For six months.
' ' All the substantive sentences of imprisonment have been ordered to run concurrently. Benefit of section 382-B, Cr.P.C. Has, however, been extended to the appellant.
2. Facts of the case, in brief, are that in consequent of F.I.R. No,240, dated 22-3-1995 registered at Police Station Kotwali, Jhang, the appellant was challaned under Article 3/4 of the Prohibition Order on the allegation that he was found in possession of the contraband material detailed as under:-
(i) "Charas" 500 grams; (ii) "Opium" 100 grams; (iii) Heroin 15 grams.
3. At trial, the prosecution in order to prove the charge and substantive the allegations leveled against the accused/appellant produced five witnesses, in all including the Investigating Officer Arshad Mehmood, who appeared as P.W.5 and tendered in evidence along with other documents, the reports issued by the Chemical Examiner as Exhs.P.D., P.E. And P.F. Where after, the accused/ appellant was examined under section 342, Cr.P.C. In his statement, he denied the charge and pleaded innocence. However, he declined to lead any evidence in his defiance or to appear as his own witness in terms of section 340(2), Cr.P.C.
4. I have heard Mr. N.A. Butt, Advocate, learned counsel for the appellant and have also perused the entire record with their help. It would be pertinent to mention here that despite repeated calls none has appeared for the State.
5. The only contention raised by the learned counsel for the appellant is that though the learned trial Court has convicted and sentenced the appellant for keeping in possession the contraband material in question and has awarded him different sentences, on account thereof yet, neither his attention was specifically drawn towards Exhs.P.D., P.E. And P.F. Nor explanation was sought from him at the time of his examination under section 342, Cr.P.C. Regarding the same. He maintained that since the documents in question were important pieces of evidence and were decisive in determining fate of the case, therefore, it was obligatory for the trial Court, to specifically confront the appellant with the same, within the purview of section 342, Cr.P.C. Thereby enabling him to offer an explanation. He stated that the omission so made has since materially prejudiced the appellant, therefore, subsequent proceedings stand vitiated.
6. I have given my anxious consideration to the contention raised by the learned counsel for the appellant and have also gone through the record of the case. As is evident from record Exhs.P.D., P.E. And P.F. Were produced on record/tendered in evidence by P.W.5 under section 510, Cr.P.C.
However, these were neither put to the accused nor his explanation was called for. It is well-settled that compliance with section 342, Cr.P.C. Is absolutely essential in accordance with its terms and it is wholly against law that a person should be convicted on the basis of something, of which he was not given any notice and to which he was never required to give his own reply. It is indeed indispensable when it appears that the accused would be prejudiced on account of a particular piece of evidence or circumstance. The real test is as to whether in a particular case, non- compliance of the provision has materially prejudiced an accused or not. To my mind, in the cases in which the accused has a specific notice of a particular piece of evidence or circumstance or is fully aware of the contents of a document, tendered in evidence against him, the omission may not be fatal and would be curable under section 537, Cr.P.C., but where, it appears that an accused has/had no notice of a particular piece of evidence or a document is brought on record in a casual manner, then, in such an eventuality, it would be obligatory for the trial Court to draw attention of the accused towards the same specifically and seek explanation from him, in respect thereof. For instance if an expert is examined in Court and he himself explains the circumstances which had culminated in his report and veracity of his statement stands tested through cross-examination, than in such case it would be presumable that since the accused was fully aware Of the contents of the report/document, therefore, the omission was not fatal and was curable, but if a particular document is just tendered in evidence and attention of the accused is not invited towards the same by specifically questioning him within the purview of section 342, Cr.P.C. Then it would not be justifiable to infer that the accused has/had a due notice of the same or that he was aware of the contents of the document. ##TSE# It is a matter of common practice that the documents which are exhibited in Courts are not normally read over or explained to the accused, therefore, the mere fact that the reports in question were brought on record or tendered in evidence, would not lead to this inference that the appellant had a due notice of the same.
7. In the circumstances, there is no escape but to remand the case to the trial Court. Accordingly, the impugned judgment, dated 20-7-1998 passed by the learned Magistrate Section 30, Jhang is set aside and the case is remanded to the trial Court for retrial in accordance with law, from the stage, where the statement of the accused was to be taken.