HCJDA-38

JUDGMENT SHEET
IN THE LAHORE HIGH COURT
RAWALPINDI BENCH RAWALPINDI
JUDICIAL DEPARTMENT

Criminal Appeal No. 05 of 2021

(Mst. Zainab Bibi alias Gudo vs. The State)

JUDGMENT
Date of Hearing: 22.06.2021
Appellant by: Mr. Muhammad Zaki Qureshi Advocate
State by: Mr. Naveed Ahmad Warraich, Deputy District
Public Prosecutor.

SOHAIL NASIR, J. Mst. Zainab Bibi alias Gudo

(appellant) had faced trial in case FIR 691 (PB) recorded on
12.07.2020 at Police Station Waris Khan, Rawalpindi under
Section 9(C) of the Control of Narcotic Substances, Act, 1997
(The Act) on the complaint of Muhammad Saleem SI (Pw-6) for
the allegations of having the possession of Charas weighing 2100
grams. On conclusion of trial vide a judgment dated 19.12.2020
passed by learned Additional Sessions Judge/Judge Special Court
CNS, Rawalpindi she was convicted under Section 9(C) of The
Act and sentenced to undergo five years and six months R.I and
fine of Rs.25000/- (twenty five thousand). In default of payment
fine she was ordered to further undergo five months and fifteen
days SI. Benefit of Section 382-B Cr.P.C was also extended to her.
2. Facts of the case as evident from complaint (PB) are that on
12.07.2020 police party headed by Muhammad Saleem SI (Pw-6)
was present on duty at Mohallah Chah Sultan opposite to Allah
Wali Mosque; at about 08:20 pm an old aged lady having a
shopping bag of blue colour came there, who was over powered
being suspected; she told her name Zainab Bibi alias Gudo; on
search of her shopping bag Charas in round shape weighing 2100
grams was recovered out of which 105 grams was separated for
chemical analysis; recovered Charas (P1) and sample were made
Crl. A. No.05 of 2021/RWP 2

into independent sealed parcels and secured vide a recovery memo

Ex. PA.
3. On the basis of complaint mentioned above FIR (PB) was
recorded by Muhammad Luqman Pasha TSI (Pw-3).
4. The case was investigated by Ahmad Yar SI (Pw-4), who on
conclusion thereof submitted a report under Section 173 Cr.P.C
(Challan) in the Court.
5. A charge under Section 9-C of The Act on 16.10.2020
framed against appellant was not pleaded guilty by her where after
prosecution had produced Nadeem Qaiser HC/Moharrar (Pw-1),
Rafia Tabassum, Lady Constable/recovery witness (Pw-2),
Muhammad Luqman Pasha TSI/author of FIR (Pw-3), Ahmad Yar
SI/IO (Pw-4), Abdul Rehman ASI/recovery witness (Pw-5),
Muhammad Saleem SI/complainant and recovery witness (Pw-6)
and Muhammad Shoaib Constable/recovery witness (Pw-7).
6. After giving up Muhammad Yasin Constable being
unnecessary and producing the report of Punjab Forensic Science
Agency Lahore (PE) prosecution‟s evidence was closed by learned
ADPP.
7. In her examination made under Section 342 Cr.P.C,
appellant pleaded her false involvement in this case. She opted not
to produce defence evidence or to appear in terms of Section
340(2) Cr.P.C.
8. Learned counsel for appellant contends that while examining
the appellant under Section 342 Cr.P.C, the report of chemical
examiner was not put to her and this defect is not curable under the
law, therefore on this score alone she is entitled for acquittal.
9. On the other hand, learned DDPP contends that point raised
is technical in nature and for that omission the conviction recorded
by learned Trial Court cannot be declared invalid.
10. Heard.
11. For effective discussion on the proposition before us,
Section 342 Cr. PC is reproduced as under: -
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“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) ……
(3) ……
(4) ……

12. Under the above said provisions, it is the duty of trial Court
to examine the accused. Power to examine an accused under the
settled principles of law is not mere a formality but a mandate to
enable an accused to explain any circumstance, appearing against
him in evidence. During this exercise every piece of evidence
which can be used against appellant for the purpose of conviction
is required to be put to him, so he may in a position to respond
thereto. Every piece of evidence certainly includes the
documentary evidence also. Said examination of accused is based
on the principles involved in maxi “Audi Alteram Partem” that
means „no one should be condemned unheard‟. These
circumstances to be put to accused are also called „incriminate
pieces of evidence‟. The word incriminating means “a material
that has harmful effect”. Therefore, deviation from said duty shall
render the conviction invalid.

13. The honorable Supreme Court of Pakistan in ‘Din

Muhammad vs. The Crown 1969 SCMR 777’ was pleased to
observe as under: -
“In reaching these conclusions the
learned Judges have not considered a
material defect in the proceedings viz.
that three of the circumstances from
Crl. A. No.05 of 2021/RWP 4

which they were drawing inferences

adverse to the appellant had not been put
to him when he was questioned under
section 342, Cr. P. C by the committing
Magistrate and the Sessions Judge. No
question was put to him in respect of the
evidence of PW-3 about the reply he was
said to have given the witness when
asked about the whereabouts of the
deceased or the evidence of PW-7 or that
of PW-16. The circumstances spoken to
by these witnesses even if accepted as
proved, can be made the basis of an
adverse inference against the appellant
only on the ground that he had no
satisfactory explanation for them, but the
possibility of his having been able to give
an explanation though not convincing at
least plausible enough to create a
reasonable doubt cannot reasonably be
excluded. The importance of the
examination of the accused under section
342, Cr. P. C has been pointed out by
their Lordships of the' Privy Council as
well as by this Court in more than one
decision, and it is unfortunate that the
learned Judges overlooked this serious
omission”

14. In “Munir Ahmad alias Munni vs. the State 2001 SCMR 56
again it was observed that: -
“The matter does not end here. No
question with regard to this
incriminating piece of evidence was put
to the appellant during his examination
under section 342, Cr.P.C. This is
undoubtedly quite strange. In laws, if an
incriminating piece of evidence is not put
to an accused and it has resulted in
causing prejudice to the accused the
same shall not be considered as evidence
against him”

15. We have perused the examination of appellant recorded by

learned Trial Court where in question No. 5 only there is mention
of sending the sample to PFSA but by stretch of no imaginations
report of PFSA (PE) was put to her through any question for
 Crl. A. No.05 of 2021/RWP 5

enabling her to explain that piece of evidence. Omission, therefore,

is not curable under the law and has caused miscarriage of justice.
16. In view of above, this Criminal Appeal is allowed.
Impugned judgment dated 19.12.2020 passed by learned Trial
Court is set aside and appellant is acquitted from the case. She is
in custody and she shall be released forthwith if not required in any
other case. The case property shall be dealt with in the manners as
directed by the learned Trial Court.

(RAJA SHAHID MEHMOOD ABBASI) (SOHAIL NASIR)

JUDGE JUDGE

APPROVED FOR REPORTING

(SOHAIL NASIR)
JUDGE
*Sharif