2022 M L D 1805
Criminal Procedure Code (V of 1898)---
----S.342---Statement of accused under S.342, Cr.P.C.---Scope---Statement of accused under S.342, Cr.P.C., was not a mere formality rather it was a bounden duty of the Trial Court to question the accused on proven circumstances or proven evidence---Circumstances/evidence, which was not put to an accused in his examination under S.342, Cr.P.C., could not be used against him and liable to be excluded from consideration.
Control of Narcotic Substances Act (XXV of 1997)---
----S.9(c)---Criminal Procedure Code (V of 1898), S.342---Possession of Narcotics---Appreciation of evidence---Benefit of doubt---Incriminating material was not put to the accused during his examination---Effect---Prosecution case was that 1500 grams of charas was recovered from the Gathri of the accused---Perusal of statement of accused under S.342, Cr.P.C. clearly demonstrated that certain material questions/incriminating evidence was not put to the accused while examining him under the said section---First and foremost question as to whether the prosecution evidence was recorded in the presence of the accused and he understood the same was not even put to him---Non-formulating of such a vital question and non-affording the accused an opportunity to respond the same, meant that the entire prosecution evidence being used against him was not recorded in his presence---Said fact alone was sufficient to believe that the Trial Court did not go through the prosecution evidence while recording statement of the accused under S.342, Cr.P.C, and felt it satisfied to put forth the facts of crime report to the accused, which in no manner could take place of prosecution evidence---Recovered charas was never confronted to the accused while examining him under S.342, Cr.P.C. and as such, the same could not be used against him in any eventuality for maintaining his conviction and sentence---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court.
Judgment
ASJAD JAVAID GHURAL, J.----Through this appeal under Section 48 of the Control of Narcotic Substances Act, 1997 appellant Ghulam Shabbir alias Shaboo has challenged the vires of judgment dated 02.12.2019 passed by the learned Additional Sessions Judge, Muzaffargarh in case FIR No.407/2019 dated 05.08.2019, in respect of an offence under Section 9(c) of The Control of Narcotic Substances Act, 1997, registered at Police Station, Qureshi, District Muzaffargarh, whereby he was convicted and sentenced under the aforementioned offence to the rigorous imprisonment for four years and six months with fine of Rs.10,000/- and in default thereof to further undergo simple imprisonment for three months. The benefit of Section 382-B, Cr.P.C. was extended to the appellant.
2. Precisely, the allegation against the appellant as narrated in the crime report (Ex.PC) is that on 06.08.2019 complainant Tariq Hussain, ASI, (PW-1) along with other police contingent was present near Pitafi Minor Bridge in connection with patrol, watch and ward duty, when they saw a person coming from the southern bank of the minor on foot, holding Gathri in his right hand, however on seeing the police party, he turned back by moving faster. On suspicion, he was apprehended, who subsequently disclosed his name as Ghulam Shabbir alias Shaboo (appellant) and upon search of the Gathri, charas weighing 1500-grams was recovered. Out of recovered charas, 75-grams was separated as sample for chemical analysis. The sample parcel as well as the remaining narcotic substance were sealed and taken into possession through a recovery memo. He drafted complaint (Ex.PB) and sent the same to the police station for registration of case.
3. Muhammad Yousaf, Inspector (PW-5) conducted investigation in this case, visited the place of occurrence on the same, interrogated the complainant as well as the accused and thereafter, recorded statements of the witnesses under Section 161, Cr.P.C. After completion of investigation, he got prepared report under Section 173, Cr.P.C.
4. At the commencement of the trial, the learned trial Court had framed a charge against the appellant to which he did not plead guilty and claimed trial.
5. The prosecution produced 05-witnesses besides the report of
Chemical Examiner (Ex.PE). The appellant, in his statement recorded under Section 342, Cr.P.C., had denied and controverted the allegations leveled against him, he neither opted to make statement under Section 340(2), Cr.P.C. nor had he produced any evidence in his defence.
5. Learned counsel the appellant, inter alia, contends that statement of the appellant recorded under Section 342, Cr.P.C. was not recorded properly in as much as the incriminating evidence, including the alleged recovered charas (P-1) was not confronted to the appellant. He goes on to state that seven a very vital and important question as to "whether the evidence was recorded in the presence of the appellant and he heard the same" was not put to the appellant, which vitiates the entire trial; that it is well settled law that any piece of prosecution evidence not confronted to an accused in examination under Section 342, Cr.P.C., cannot be used against him for maintaining his conviction and sentence. In the end, a prayer has been made for acquittal of the appellant.
6. On the converse, learned Deputy Prosecutor General appearing for the State very fairly concedes to the flaws pointed out by learned counsel for the appellant qua statement of the appellant under Section 342, Cr.P.C. however, he contends that it was just an omission/error of the Court for which the prosecution should not suffer.
7. We have heard learned counsel for the appellant, learned Deputy Prosecutor General appearing for the State and perused the record with their able assistance.
8. The appellant was booked, tried and convicted in the aforementioned case for keeping 1500-grams of charas. It was in the prosecution evidence, that Tariq Hussain, ASI (PW-1)/complainant apprehended the appellant being a suspected person and upon search, recovered chars weighing 1500 gram from the exclusive possession of the appellant, out of which 75-grams was separated for chemical analysis. He prepared parcels of the samples as well as remaining recovered narcotic substance, sealed and took the same into possession vide recovery memo (Bx.PA) attested and signed by Abdul Qadeer, 1010/C (PW-3) and Waqar Younis, (given up PW) as a token of its correctness: He handed over the case property to the investigating officer namely, Muhammad Yousaf, Inspector (PW-5) at the spot, who interrogated the complainant, eye witnesses and the appellant and recorded statements of the witnesses under Section 161, Cr.P.C. He prepared site plan (Ex.PD) and handed over the case property to Moharrir namely, Shahbaz Qalandar, 1240/I4C, (PW-2) for safe custody. On 08.08.2019, said Moharrir handed over sealed sample parcel to the complainant for its onward transmission to the office of Punjab Forensic Science Agency, Lahore where it was deposited on 09.08.2019.
9. Learned trial Court vide impugned judgment discussed entire evidence produced by the prosecution right from the recovery of charas from the possession of the appellant, its weight, separation and sealing of the samples, preparation of recovery memo, onward transmission of the samples to the office of Punjab Forensic Science Agency through safe hands, positive report from the said (Ex.DA) and made it basis for conviction and sentence of the appellant. We have observed that learned trial Court did not put the most important part of the prosecution evidence to the appellant in his statement recorded under Section 342, Cr.P.C. In order to understand the effect of non-confronting the major/vital portion of prosecution evidence lead against the appellant, while examining him under Section 342, Cr.P.C., it would be expedient to firstly go through the provisions of Section 342, Cr.P.C. which reads as under:-
342. Power to examine the accused. (1) For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court may, at any stage of any inquiry or trial without previously warning the accused, put such questions to him as the Court considers necessary, and shall for the purpose of aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence.
(2) The accused shall not render himself liable to punishment by refusing to answer such questions or by giving false answers to them; but the Court may draw such inference from such refusal or answer as it thinks just.
(3) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.
(4) Except as provided by subsection (2) of S.340 no oath shall be administered to the accused." (emphasis supplied)
10. Bare reading of Section 342 Cr.P.C. it is manifestly clear that the entire purpose of this Section is to afford the accused a fair and proper opportunity of explaining circumstances, which appears against him. It is necessary that attention of the accused must be brought to all the vital parts of the evidence brought against him by the prosecution, which is likely to be considered by the Court against him. The purpose is to establish a direct dialogue between the Court and the accused and to put every important and incriminating material before him so as to enable him to answer and explain his position. The question put to an accused must be fair and couched in a manner, which even an ignorant and illiterate person may be able to appreciate and understand. The word 'generally' appearing in subsection (1) of Section 342, Cr.P.C. does not limit the nature of the questioning to one or more questions of a general nature relating to a case but it means that the question should relate to the whole case generally. We can safely concluded that the statement of an accused under Section 342, Cr.P.C. is not a mere formality rather it was a bounden duty of the trial Court to question the accused on proven circumstances or proven evidence. The circumstances/ evidence, which is not put to an accused in his examination under Section 342, Cr.P.C., cannot be used against him and liable to be excluded from consideration Reliance is placed on case reported as "Muhammad Nawaz and others v. The State and others" (2016 SCMR 267) wherein it has been laid down as under:-
"While examining the appellants under section 342, Code of Criminal Procedure, the medical evidence was not put to them. It is well settled by now that a piece of evidence not put to an accused during his/her examination under section 342, Criminal Procedure Code, could not be used against him/her for maintaining conviction and sentence."
11. Here in the instant case, the perusal of statement of accused under Section 342, Cr.P.C. clearly demonstrate that certain material questions/ incriminating evidence was not put to the appellant while examining him under the said Section. The first and foremost question as to "whether the prosecution evidence was recorded in the presence of the appellant and he understands the same" was not even put to him. Non-formulating of such a vital question and non-affording the appellant an opportunity to respond the same, means that the entire prosecution evidence being used against him was not recorded in his presence. Moreso, question No.1 of statement of the appellant under Section 342, Cr.P.C. reads as under:-
"Q.1 It is in the prosecution evidence that on 05.08.2019 police party comprising of Abdul Qadeer constable, Waqar Younis constable, Muhammad Ashraf constable, Ghulam Shabbir constable headed by Tariq Hussain ASI was present near bridge of minor in Mauza Waan Pitafi in connection with patrol as well as Watch and Ward duty. The police party saw you accused Ghulam Shabbir coming on foot from southern bank of the minor. You saw the police party in sudden, turned back and continue walking back fast. Considering you suspicious, your were apprehended by the police party and on the search your person, the Charas weighing 1500 grams was recovered. What do you say about it?"
Comparison of the above question with the facts mentioned in the crime report (Ex.PC) reveals that it is virtually ditto copy of the said crime report. This fact alone is sufficient to believe that unfortunately, the trial Court did not go through the prosecution evidence while recording statement of the appellant under Section 342, Cr.P.C. and felt him satisfied to put forth the facts of crime report to the appellant, which in no manner can take place of prosecution evidence. The recovered charas (P-1), was never confronted to the appellant while examining him under Section 342, Cr.P.C. and as such, the same cannot be used against him in any eventuality for maintaining his conviction and sentence. Reliance is placed on case reported as "Muhammad Shah v. The State" (2010 SCMR 1009) wherein it has been laid down as under:-
"It is well-settled that if any piece of evidence is not put to the accused in his statement under Section 342, Cr.P.C. then the same cannot be used against him for his conviction. In this case both the Courts below without realizing the legal position not only used the above portion of the evidence against him, but also convicted him on such piece of evidence, which cannot be sustained."
12. We are dismayed with the causal and cursory manner with which the learned trial Court had handled the matter of recording statement of the appellant under Section 342, Cr.P.C., which completely shorn of necessary details required to put to the appellant, enabling him to explain the same. Due to non-formulation of needed question by the trial Court, the appellant can legitimately claim that no evidence, can be used against him. It goes out without saying that the shortcomings/loopholes highlighted above, were not merely irregularity but the same was downright illegality, which vitiates the appellant's conviction and sentence. We are not convinced with the argument advanced by the learned Deputy Prosecutor General that the prosecution should not suffer due to act of Court for the simple reason that after recording of the statement of the appellant under Section 342, Cr.P.C. the prosecution has ample opportunity to raise objection during the trial highlighting the shortcomings in the statement of the appellant but no such effort was undertaken. In such circumstances, the prosecution cannot be allowed to shrug off its responsibility merely by stating that the omission occurred on the part of the Court and it has to face the consequence.
13. For what has been discussed above, we are persuaded to hold that it was primary duty of the trial Court to ensure that truth is discovered. The procedure adopted by the trial Court for recording the statement of the appellant under Section 342, Cr.P.C. is reflective of miscarriage of justice. The failure of the trial Court to put incriminating evidence including charas (P-1) to the appellant while examining him under Section 342, Cr.P.C. is fatal to the prosecution and, thus, we are unable to concur with the conclusion arrived at by the trial Court qua conviction and sentence of the appellant.
0 Comments