ORDER SHEET

THE HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No. 128 of 2023

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Zulfiqar Ali Sangi

Appellant : Shahid @ Boom Boom through Mr. Abdul Baqi advocate

Respondent : The State through Mr. Khadim Hussain Addl. P.G

Date of hearing : 13.05.2024

Date of decision : 13.05.2024

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Shahid @ Boom Boom appellant was tried by learned Additional Sessions Judge-I/Model Criminal Trial Court, Malir, Karachi for offence under Section 9(c) of CNS Act, 1997. After regular trial, vide judgment dated 27.02.2023, appellant was convicted under Section 9(c) of C.N.S Act 1997 and sentenced to suffer imprisonment for life and to pay fine of Rs.500,000/-, in case of default, he was ordered to undergo 06 months S.I. The appellant was, however, extended the benefit of Section 382-B Cr.P.C.

2. Brief facts leading to the filing of the appeal are that on 14.02.2022 at about 1830 hours at main road leading from Memon Goth to Malir, appellant was arrested by SIP Shafi Muhammad of PS Memon Goth. Appellant was transporting charas on the tank of his motorcycle, he was caught hold, his personal search was conducted, a bag containing charas was recovered from the tank of his motorcycle, in presence of mashirs namely PCs Sheri and Muhammad Siddique. Chars was weighed, it was 18.5 K.G, mashirnama of arrest and recovery was prepared, case property was sealed, motorcycle without number was also seized. Thereafter, accused and case property were brought to the police station Memon Goth, Malir, where FIR was lodged against the appellant by SIP Shafi Muhammad on behalf of state vide Crime No.69/2022 for offence under Section 9(c) of CNS Act, 1997. Charas was handed over to Incharge Malkhana.

3. During investigation, charas was sent to the Chemical Examiner. Positive report was received. On conclusion of usual investigation, final report was submitted against the appellant under Section 9(c) of the CNS Act 1997.

4. Trial Court framed Charge against the appellant at Ex.2 to which appellant did not plead guilty and claimed trial.

5. At trial, prosecution examined 04 witnesses, who produced relevant documents. Thereafter, prosecution side was closed.

6. Trial Court recorded statement of accused under Section 342 Cr.P.C Ex.09 in which he claimed his false implication and denied prosecution allegations. Appellant neither examined himself on oath under section 340(2) Cr.P.C in disproof of the prosecution allegations nor led any evidence in his defence.

7. Trial Court after hearing the learned counsel for the parties and assessment of the evidence, convicted the accused under Section 9(c) of Control of Narcotics Substances Act, 1997 and sentenced as stated above. Hence, this appeal is filed.

8. Learned Advocate for the appellant at the very outset contended that all the incriminating pieces of evidence were not put to appellant in his statement recorded under Section 342 Cr.P.C. It is further submitted that trial Court has based its finding that appellant was found carrying charas on the tank of his motorcycle but such question was not put to him in his statement recorded under Section 342 Cr.P.C. Counsel for the appellant submitted that illegality committed by the trial Court is not curable under the law and serious prejudice has been caused to the appellant and prayed that case may be remanded to trial Court for recording statement of accused afresh.

9. Addl.P.G conceded to the legal position that all the incriminating pieces of evidence have not been put to the appellant in his statement recorded under Section 342 Cr.P.C. Addl. P.G recorded no objection for remand of the case to the trial Court for recording statement of accused under Section 342 Cr.P.C afresh.

10. In order to appreciate the contentions raised by learned counsel for the appellant, we have carefully re-examined the statement of accused recorded under Section 342 Cr.P.C. at Ex.9. For the sake of convenience, same is reproduced as under:

Q.1: It has come in evidence that on 14.02.2022 at 1830 hours, at main road coming from Memon Goth to Malir Road, opposite Eid Gah Jam Goth side Gadap town, Karachi, a police party headed by SIP-Shafi Mohammad of P.S Memon Goth had apprehended you and on personal search recovered one sack containing 16 packs wrapped with yellow tape (Cannabis) charas weighing 18.5 Kgs from your possession under memo of arrest and recovery (available at Ex.4/B). What you have to say?

Ans. Sir, it is false.

Q.2: It has further come in evidence that I.O/SIP Khuda Bux Lashari during investigation had sent the case property to chemical examiner's office and per chemical examiner's report dated 22-02-2022 (available at Exh.6/F) reported the said recovered contraband was analyzed as "charas". What you have to say?

Ans. Sir, I have no concern with the alleged chemical report and police got managed/manipulated it.

Q.3. Why P.Ws have deposed against you?

Ans. Sir, all PWs were police officials who are inimical to me and they deposed falsely.

Q.4. Do you want to examine yourself on oath as required U/S 340-(2) Cr:P.C?

Ans: No sir.

Q.5. Do you want to examine any witness in your defense?

Ans: No sir.

Q.6. Have you to say anything else?

Ans. Sir, I had illegally been taken into custody by police officials from my house on the intervening night of 13th & 14th February 2022 against that my brother Sher Ali Khan moved application before Chief Justice, Honourable High Court of Sindh which was duly received by dispatch branch of Hon'ble High Court. I produce such application at Exh.9/A. I say that Police had falsely implicated me in this case and nothing incriminating was recovered from my possession. I pray for justice.

11. It is the case of the prosecution that appellant was carrying charas on the tank of his motorcycle, when he was arrested by the police officials on 14.02.2022. Admittedly material question/incriminating piece of evidence has not been put to the appellant in his statement recorded under Section 342 Cr.P.C. Moreover, trial Court while discussing the point No.1, has heavily relied upon this piece of evidence. Relevant portion of impugned judgment is reproduced as under:

“For recovery of contrabands, both witnesses during evidence deposed that on checking of the blue colour sack so placed on fuel tank of Motorcycle…..”

12. It is settled principle of law that all the incriminating pieces of evidence shall be put to accused in his statement recorded under Section 342 Cr.P.C and 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. Reliance is placed upon the case of Muhammad Shah vs. The State (2010 SCMR 1009), the Apex Court has held as under:-

"11. It is not out of place to mention here that both the Courts below have relied upon the suggestion of the appellant made to the witnesses in the cross-examination for convicting him thereby using the evidence available on the record against him. It is important to note that all incriminating pieces of evidence, available on the record, are required to be put to the accused, as provided under section 342, Cr.P.C. in which the words used are "For the purpose of enabling the accused to explain any circumstances appearing in evidence against him" which clearly demonstrate that not only the circumstances appearing in the examination-in-chief are put to the accused but the circumstances appearing in cross-examination or re-examination are also required to be put to the accused, if they are against him, because the evidence means examination-in-chief, cross-examination and re-examination, as provided under Article 132 read with Articles 2(c) and 71 of Qanun-e-Shahadat Order, 1984. The perusal of statement of the appellant, under section 342, CrP.C reveals that the portion of the evidence which appeared in the cross-examination was not put to the accused in his statement under section 342, Cr.P.C. enabling him to explain the circumstances particularly when the same was abandoned by him. 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."

13. In the present case, learned trial Court convicted the appellant mainly on the piece of evidence that he was carrying charas on the tank of his motorcycle, but said piece of evidence was not put to the appellant in his statement recorded under section 342 Cr.P.C. Resultantly, illegality committed by the trial Court is not curable under the law and it has vitiated the trial. Consequently, appeal is allowed, conviction and sentence recorded by the trial Court against appellant vide judgment dated 27.02.2023 are set aside. Case is remanded back to the trial Court for recording statement of the appellant under section 342, Cr.P.C. afresh. Thereafter, trial Court after hearing both the parties, shall decide the case afresh. Appellant shall be treated as under trial prisoner. Since this is an old case, trial Court is directed to decide the case within two months under intimation to this Court.

J U D G E

Wasim/PS