2005 PLP 861 (YLR)

Nisar Ahmed G. Abro for Appellant. Ali Azhar Tunio, Assistant A.‑G for the State. Date of hearing: 30th January, 2003. RAHMAT HUSSAIN JAFFERI, J.‑‑‑The present appeal is directed against the judgment dated 24‑4‑2002 passed by the learned Ist Additional Sessions Judge and Special Judge for Control of Narcotic substances, Jacobabad in Special Case No.5 of 2001 State v. Shamsuddin by which the learned Judge had convicted the appellant under section 9(b), Control of Narcotic Substances Act, 1997 (hereinafter referred as C.N.S. Act) and sentenced him to suffer R.I. for 7 years and to pay fine of.Rs.50,000 or in default thereof to suffer S.I. for 6 months more with benefit of section 382‑B, Cr. P.C. The facts giving rise to the present appeal are that on 4‑2‑2001 at 6‑15 p. m. at Phool Bagh Road the appellant was found in possession of 1000 gms of Charas which was secured by the police party headed by S.I. P. Mazhar Ali Dharejo of Police Station, Civil Lines Jacobabad. The property was sent to Chemical Analyzer for examination and report. The report was in positive. After completing the investigation,' the appellant was challaned in the Court where he was tried and convicted as mentioned above under the impugned judgment. The appellant was dissatisfied with the said judgment, hence preferred this appeal. The Advocate for the appellant has stated that under section 342, Cr.P.C. each piece of evidence appearing in the evidence against the accused person's to be put to the accused for obtaining his explanation but a question regarding the Chemical Analyser Report was not put to the appellant in his statement under section 342, Cr. P. C. and that the appellant has been convicted on the basis of the alleged recovery of Charas which could only be proved through the Chemical Analyser as such when no such evidence was put to the appellant in the statement under section 342, Cr.P.C. then the said evidence cannot be used against the appellant while convicting him. He has further stated that it is material irregularity which cannot be cured hence he has requested for setting aside the judgment. Mr. Ali Azhar Tunio, Assistant A.‑G. for the State after going through the R and Ps has stated that learned trial Court has committed material irregularity by not putting the evidence of Chemical Analyser Report to the appellant as required under section 342, Cr.P.C. and that the said illegality cannot be cured therefore, the impugned judgment requires interference. He has requested that the case may be remanded to the trial Court for recording the statement under section 342, Cr.P.C. afresh and then proceed further ins accordance with the law. We have given due consideration to the arguments and perused the record and find that the above arguments have great force as no question was asked froth the appellant 'in his statement under sections 342, Cr.P.C. with regard to the Chemical Analyser Report. It is well‑settled principle of law that conviction can only be based upon the evidence which is put to the accused in his statement under section 342, Cr.P.C. for obtaining his explanation and if such evidence is not put to the accused in such statement then it cannot be used against him. Reliance is placed upon Rahim v. Crown PLD 1952 FC 1; Aminul Haq v. Crown PLD 1952 FC

63. The point was also examined in a case of Muhammad Mumtaz v. The State PLD 1997 SC 689 and after relying upon another authority of the Honourable Supreme Court of Pakistan in a case of Din Muhammad v. The State 1969 SCMR

777. It was observed that appellants when examined under section 342, Cr.P.C. were not put the report of Chemical Analyser, then it was found violative of mandatory provision of law. In view of above position, the conviction and sentence awarded under the impugned judgment is set aside. The case is remanded to the trial Court for recording the statement of appellant under section 342, Cr.P.C. afresh and then decide the case in accordance with the law. The appeal is allowed in the above. H.B.T./S‑84/K Order accordingly.