2026 PLP 1058 (YLR)

Farooq Haider, J.

This appeal has been filed by Shafqat Iqbal alias Bilalu (appellant) against the judgment dated: 25.07.2023 passed by learned Additional Sessions Judge/Judge Special Court under section 46 of CNSA, Malakwal/trial court whereby in case arising out of FIR No.457/2022 dated: 07.10.2022 (Ex.PC) registered under Section: 9(1) 3(c) of the Control of Narcotic Substances Act, 1997 at Police Station: Gojra, District: Mandi Bahauddin, trial court has convicted and sentenced the appellant as under:- Under Section 9(1) 3(c) of the Control of Narcotic Substances Act, 1997 to undergo Rigorous Imprisonment for 09-years along with fine of Rs.80,000/- and in default of payment thereof to further undergo S.I for 06-months. Benefit of section 382-B Cr.P.C. was also extended to the appellant.

2. Briefly, as per case of prosecution narrated in the Crime Report (FIR/Ex.PC) got recorded by Qaisar Abbas, A.S.I. (complainant/PW-2), appellant was apprehended by the complainant and other police officials and on his personal search, a blue coloured shopper containing brown coloured charas was recovered from his possession holding in his right hand; on weighing, it was found 1450-grams and out of the recovered charas, 72.5-grams charas was separated as sample for getting chemical analysis from PFSA; two parcels were secured with the stamp "QA" and taken into possession through recovery memo (Ex.PA); for ready reference, relevant portion of the Crime Report (FIR/Ex.PC) is hereby scanned below:- After investigation, challan report was sent to the Court against the appellant; charge was framed against him, to which he pleaded not guilty; prosecution produced its evidence; trial Court recorded statement of the appellant under Section: 342 Cr.P.C. wherein he refuted allegations levelled against him; appellant did not record his statement under Section: 340(2) Cr.P.C. to disprove the allegations levelled against him and also did not produce any evidence in his defence; then trial court after hearing learned counsel for the parties, passed the impugned judgment, whereby the appellant was convicted and sentenced as mentioned above.

3. Learned counsel for the appellant has contended that safe custody of the case property has not been proved; therefore, conviction recorded and sentence awarded through impugned judgment, are liable to be set-aside; finally requested for acceptance of instant appeal.

4. Conversely, learned Deputy Prosecutor General has supported the impugned judgment and requested for dismissal of instant appeal.

5. After hearing learned counsel for the appellant, learned Deputy Prosecutor General and going through the record with their able assistance, it has been noticed that as per case of prosecution, on 07.10.2022, appellant was apprehended by the complainant and other police officials and on his personal search, a blue coloured shopper containing brown coloured charas was recovered from his possession holding in his right hand; on weighing, it was found 1450-grams and out of the recovered charas, 72.5-grams charas was separated as sample for getting chemical analysis from PFSA, two parcels were secured with the stamp "QA" and taken into possession through recovery memo (Ex.PA). It has been observed that while examining the appellant as accused under Section: 342 Cr.P.C. during trial of the case, it was not put to him that who at the place of recovery, handed over parcels of case property comprising of parcel of sample as well as parcel of remaining case property to whom for taking the same to the police station, who brought the parcel of sample as well as parcel of remaining case property from the place of recovery to the police station and to whom, same were handed over at the police station for safe custody; similarly, it has also not been put to the accused under Section: 342 Cr.P.C. that who kept the parcel of sample as well as parcel of remaining case property in safe custody at police station and then, who handed over parcel of sample to whom for transmitting the same to the Punjab Forensic Science Agency, Lahore for the purpose of chemical analysis; therefore, chain of "safe custody" of the "parcel of remaining case property" as well as of the "parcel of the sample" has not been put to the appellant under Section: 342 Cr.P.C. hence same cannot be used against him. It goes without saying that ancient background of Section: 342 was a key component of the Code of Criminal Procedure, 1898, which established a formal, systematic criminal justice framework and in order to identify the legal/constitutional requirements of Section: 342 Cr.P.C., said provision is hereby reproduced for ready reference: - "

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 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 answers 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 sub-section (2) of Section 340, no oath shall be administered to the accused." Basic structure of this provision is a fundamental and procedural safeguard which ensures that an accused person has a formal as well as protected opportunity to present himself and explain the evidence against him within the judicial process and it is not a tool for the prosecution to fill gaps in its case rather it is an opportunity for the accused to defend himself; the statement of an accused under Section: 342 of the Cr.P.C. is critically significant because it is not evidence rather the same is only version of the accused by way of an explanation when incriminating material against him is brought to his notice; this statement is not made on oath and cannot be tested by cross-examination, such statement cannot be placed on the same footing as statement made by witness in Court on oath, which is tested by cross-examination; the version given in such statement, if found by the Court to be reasonable, the same may be accepted by the Court even without requiring defence evidence unless the version is falsified by the prosecution evidence; the core object of this provision is deeply rooted in the legal maxim "audi alteram partem". It is worth mentioning here that examination of the accused under Section: 342 Cr.P.C. is a "mandatory step", which is essential for a fair trial, this provision was as a matter of fact designed to provide the accused with a formal opportunity to explain any circumstance or evidence which appears to incriminate him in the case of prosecution; all incriminating evidence from the prosecution, including testimonies of the witnesses from examination-in-chief, cross-examination, and re-examination, which are against the accused must be put to him during recording of his such statement to be considered and failure to do so is a significant legal defect, which on the one hand negates the spirit of concept of "fair trial" guaranteed by the Article: 10-A of the Constitution of Islamic Republic of Pakistan, 1973 whereas on the other hand, can also set-aside the conviction because it is by now well settled that any evidence or circumstance, which was not put to the accused during recording of his statement under Section: 342 Cr.P.C., cannot be used against him; so, for recording conviction and awarding sentence in a criminal case, it is mandatory to put entire incriminating material to the accused under Section: 342 Cr.P.C. in order to have his explanation/reply in said regard otherwise it would amount to "audi alteram partem" and in this regard, case of "Ameer Zeb v. The State" (PLD 2012 SC 380) can be safely referred and its relevant portion from Paragraph No.6 available at Page No.398, is hereby reproduced for ready reference:- "It is trite that a piece of evidence not put to the accused person at the time of recording of his statement under section 342, Cr.P.C. cannot be used against him by the prosecution." (emphasis added) In this regard, guidance has also been sought from the case of "Abdul Hayee and Abdullah alias Ghazali and another" (2025 SCMR 281) and relevant portion of the same from Paragraph No.14 is hereby reproduced as under:- "

14. Insofar as the recoveries of weapons of offence from the petitioners in another case bearing FIR No. 121 dated 26.05.2009 under Sections 324/353/186/148/149 P.P.C., read with Section 13 of the Arms Ordinance, 1965 and Section 7 of the Anti Terrorism Act, 1997, at Police Station Mochh, District Mianwali, which recoveries were also relied upon by the prosecution in the instant case and positive reports of Forensic Science Laboratory are concerned, we have noted that the said recoveries were not put to the petitioners in their statements recorded under Section 342 Cr.P.C., therefore, the above-mentioned pieces of prosecution evidence cannot be considered against the petitioners and the same have rightly been discarded by the learned High Court in paragraph No. 15 of the impugned judgment. Reference in this context may also be made to the cases of, Fida Hussain Shah v. The State (2024 SCMR 1622), Haji Nawaz v. The State (2020 SCMR 687) and Mst. Anwar Begum v. Akhtar Hussain (2017 SCMR 1710). Similarly, case of "Obaidulah and 2 others v. The State and others" (2025 SCMR 1558) can be advantageously referred on the subject. In view of above, when chain of safe custody of parcel of sample as well as parcel of remaining case property has not been put to the appellant/accused during his examination under Section: 342 Cr.P.C., then the same cannot be used against him and when it cannot be used against the appellant/accused then it i.e. said safe custody would be deemed as not proved against the appellant. Now law is also well settled on the point that unbroken chain of safe custody of "allegedly recovered case property and parcel of sample" is to be proved otherwise, conviction is not possible and it is rightly so because recovery of narcotics is not a mere corroboratory piece of evidence rather it constitutes the offence itself and entails punishment. Guidance in this regard has been sought from the cases of "The State through Regional Director Anf v. Imam Bakhsh" (2018 SCMR 2039), "Abdul Ghani and others v. The State and others" (2019 SCMR 608), "Muhammad Hazir v. The State" (2023 SCMR 986), "Asif Ali and another v. The State through Prosecutor General Punjab" (2024 SCMR 1408), "Sarfraz Ahmed v. The State" (2024 SCMR 1571) and "Muhammad Iqbal v. The State through P.G. Sindh" (2025 SCMR 704). Since safe custody of the parcel of sample taken out of the recovered substance has not been proved in this case therefore report of Punjab Forensic Science Agency, Lahore (Ex.PE) is inconclusive and cannot be made basis for conviction. By now it is also well settled that if safe custody of allegedly recovered substance or parcel of sample/case property has not been proved then, there is no need to discuss other merits of the case and it straightaway leads to the acquittal of the accused; in this regard, guidance has been sought from the supra cases of "Abdul Ghani and others v. The State and others" and "The State through Regional Director Anf v. Imam Bakhsh".

6. It is trite law that single dent in case of prosecution is sufficient for acquittal, in this regard, reliance can be placed upon the cases of "Muhammad Mansha v. The State" (2018 SCMR 772), "Abdul Jabbar and another v. The State" (2019 SCMR 129), "Mst. Asia Bibi v. The State and others" (PLD 2019 SC 64), "Amir Muhammad Khan v. The State" (2023 SCMR 566), "Muhammad Nawaz and another v. The State and others" (2024 SCMR 1731) and "Muhammad Bilal v. The State" (2025 SCMR 1580).

7. Nutshell of the above discussion is that prosecution has been failed to prove its case against the appellant beyond shadow of doubt hence there is no need to discuss defence version.

8. In view of all above, instant appeal is allowed/accepted, conviction recorded and sentence awarded to the appellant through the impugned judgment dated: 25.07.2023 passed in case arising out of FIR No.457/2022 dated: 07.10.2022 (Ex.PC) registered under Section: 9(1) 3(c) of the Control of Narcotic Substances Act, 1997 at Police Station: Gojra, District: Mandi Bahauddin, are hereby set aside; he is acquitted of the charge and will be released from jail forthwith if not required in any other case. Before parting with the judgment, it is relevant to mention here that though process of examination of the accused under Section: 342 Cr.P.C. is between the accused and the Court, and it is for the Court to put questions to the accused as the Court "considers necessary" yet it goes without saying that the act of Court should prejudice no one and in this regard Latin legal maxim "Actus curiae neminem gravabit" can be safely referred, hence, while keeping in view the significance of vital aspect of this process i.e. if any incriminating material is not put to the accused, it cannot be used against him, as well as for securing concept of fair trial and for the safe administration of justice, Court after examining entire record shall formulate questions for putting to the accused and if during this process, prosecution draws attention of the Court towards some incriminating material which has not been put to the accused, Court will after examining the same, if considers it necessary, put to the accused through question. Needless to say that prosecution may also remain vigilant, attentive and focused during this process. Registrar of this Court will send copy of this judgment to all learned Sessions Judges in the Punjab for onward transmission to learned Additional Sessions Judges and learned Magistrates in their respective Sessions Divisions. Registrar of this Court will also send copy of this judgment to the Prosecutor General, Punjab, Lahore and Director General, Punjab Judicial Academy, Lahore for information and compliance in its true spirit. JK/S-92/L Appeal allowed.