Syed Asad Ullah & 2 others Vs The State etc

8/HCJDA 38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Crl. Appeal No.76672/2023 Syed Asad Ullah, etc. versus The State, etc.

JUDGMENT

Date of hearing: 28.10.2025.

Appellant by: Rana Muhammad Irfan, Advocate.

Mr.Abdul Samad, Additional Prosecutor General State by: and Ms. Nuzhat Bashir, Deputy Prosecutor General alongwith Bashir Ahmad, A.S.I.

Farooq Haider, J. :- This appeal has been filed by Syed Asad Ullah, Niamat Ullah and Mohsin Raza (appellants) against the judgment dated: 30.09.2023 passed by learned Additional Sessions Judge, Ferozewala/trial court whereby in case arising out of F.I.R. No.2737/2021 dated: 31.12.2021 registered under Section: 9-C of the Control of Narcotic Substances Act, 1997 at Police Station: Factory Area, District: Sheikhupura , trial court has convicted and sentenced the appellants as under:- under Section: 9-C of the Control of Narcotic Substances Act, 1997 to Rigorous Imprisonment for Life each along with fine of Rs.100,000/- each and in default thereof to further undergo S.I for one year each. Benefit of Section 382 Cr.P.C. was also extended to the appellants.

2.Briefly, as per case of prosecution narrated in the F.I.R. (Ex.PB), on 31.12.2021 appellants were apprehended being suspect by the complainant and other police officials while they were riding on car bearing Registration No.LEA- 2998 WagonR White Colour; the Driver disclosed his name as Asad Ullah and on his personal search, complainant recovered four packets of charas wrapped with cloth around his right and left side of waist which were further wrapped with yellow tape; the complainant unwrapped the tape of recovered packets and found blackish brown slab shape charas; on his further personal search, the complainant recovered his CNIC alongwith Wattak amount of Rs.5000/- consisting of five notes of Rs.1000/- each; the other person sitting on adjacent seat of the car disclosed his name as Niamat Ali; on his personal search, complainant recovered a blue colour shopper lying in his lap containing seven packets of charas wrapped in yellow tape; upon unwrapping the same, blackish brown charas in slab shape was recovered; the person sitting on back seat of car disclosed his name as Mohsin Raza; on his personal search, complainant recovered a blue shopper lying in his lap containing

six packets of charas wrapped with yellow tape and on unwrapping the same, blackish brown charas in slab shape was recovered; on his further search, complainant recovered his CNIC from his right pocket; upon further interrogation, Asad Ullah got recovered a blue shopper lying in the trunk of the car; complainant recovered three packets of charas from said shopper which were wrapped with yellow tape and upon unwrapping blackish brown charas in slab shape was recovered; on weighing twenty packets of charas were found 1200/1200-grams each, total 24-KG charas was recovered from possession of all the three accused persons; complainant separated 60/60-grams charas from each packet and prepared twenty parcels of samples with stamp “SA” and prepared three parcels of remaining case property with stamp “SA” and taken into possession vide separate recovery memos.

After investigation, challan report was sent to the court against the appellants; charge was framed against them, to which they pleaded not guilty; prosecution produced its evidence. Trial Court recorded statements of the appellants under Section: 342 Cr.P.C. wherein they refuted allegations leveled against them and while answering to Question No.5 “Why this case against you and why the PWs deposed against you?”, Syed Asad Ullah (appellant) replied as under:-

“I am innocent. I was regular student of G.C. University, Lahore and I am preparing CSS examination while living in Lahore, our rivalry against whom our civil litigation is pending upto the Supreme Court of Pakistan and appeal No.CP1068/2022 having titled “Syed Hazrat Ali and others Vs. Sahabzada Abdul Hai and others” was also pending in Supreme Court of Pakistan in which the respondents are stronger person in-connivance with complainant and police booked me in this false, concocted and frivolous narcotic case. I have no previous record regarding any such kind of criminal. Nothing was recovered from me and recovered charas is planted one. All the PWs deposed false against me to show their efficiency before high ups. I am very kindly be acquitted in this case because I have no concerned with whole the occurrence by any means.”

Likewise, Niamat Ullah and Mohsin Raza (appellants) made similar replies to question No.5 which is reproduced as under:-

“I am absolutely innocent in this case. The whole recovery proceedings are fabricated and fictitious one. Nothing was recovered from me. I have been falsely implicated in this false case by the prosecution to show their efficiency before high ups with malafide intention and ulterior motive. So far as, PWs are concerned, they being in-league with each other have made false statements against me.”

The appellants neither recorded their statements under Section: 340(2) Cr.P.C. to disprove the allegations levelled against them nor produced evidence in their defence. Trial court after hearing learned counsel for the parties, passed the impugned judgment wherein appellants were convicted and sentenced as mentioned above.

3.Learned counsel for the appellants, learned Additional Prosecutor General and learned Deputy Prosecutor General in unison submit that after recording examination-in-chief of Muhammad Ashraf, AS.I. as PW-1, there was no occasion for recording his examination-in-chief again as PW-5 in the same trial and jointly contend that examination-in-chief of Muhammad Ashraf, A.S.I. recorded as PW-5 as well as partially cross-examination over him on 25.01.2023 is liable to be discarded as recording of the same is not in accordance with law and request for setting aside the impugned judgment, remanding the case back to the trial court for completion of cross-examination by the defence on examination-in-chief of Muhammad Ashraf, A.S.I. recorded as PW-1 on 20.07.2022 and then to decide the case afresh expeditiously.

4.After hearing learned counsel for the appellants, learned Additional Prosecutor General, learned Deputy Prosecutor General and going through the record, it has been noticed that Muhammad Ashraf, A.S.I. was examined as PW-1 during trial of the case, his examination-in-chief was recorded on 20.07.2022 whereas cross-examination was reserved on the request of defence, on the said date; relevant portion of his statement is hereby scanned below:-

However, then instead of conducting remaining cross-examination over him as PW-1, his examination-in-chief was again recorded during the same trial as PW-5 and he was also partially cross-examined as PW-5 and remaining cross- examination over him was reserved on the request of defence on 25.01.2023; relevant portion of his statement is hereby scanned below:- Thereafter, remaining cross-examination was conducted over him on 14.02.2023 with respect to his examination-in-chief recorded on 20.07.2022 as PW-1 and same is also hereby scanned below:-

Procedure for recording statement of witness during trial of the case is governed/regulated by the Qanun-e-Shahadat Order, 1984 and Article 132 as well as Article 133 of the Order (ibid) are hereby reproduced for ready reference in this regard.

“132. Examination-in-chief, etc. (1) The examination of a witness by the party who calls him shall be called his examination-in-chief.

(2)The examination of a witness by the adverse party shall be called his cross-examination.

(3)The examination of a witness subsequent to the cross- examination by the party who called him, shall be called his re- examination.”

“133. Order of examination. (1) Witnesses shall be first examined-in-chief then (if the adverse party so desires) cross- examined then (if the party calling him so desires) re-examined.

(2)The examination and cross-examination must relate to relevant facts but the cross-examination need not be confined to the facts to which the witness testified on his examination-in- chief.

(3)The re-examination shall be directed to the explanation of matters referred to in cross-examination and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine that matter.”

Perusal of both aforementioned articles reveals that examination of the witness by the party who calls him is called as examination-in-chief, examination of witness by the adverse party is called as cross-examination whereas examination of witness subsequent to cross-examination by the party who calls him, is termed as re-examination; order of examination of the witness as per Order (ibid) is that firstly examination-in-chief of the witness shall be recorded then he will be cross-examined (if the adverse party so desires) and then if the party calling him so desires re-examines him; re-examination shall be directed to the explanation of the matters referred to in cross-examination and, if new matter is, by permission of the Court, introduced in re-examination, adverse party may further cross-examine that matter. There is absolutely no provision in the law for recording examination-in-chief of a witness twice during a trial of the case and even after alteration of the charge under section: 227 of Cr.P.C., further procedure has been mentioned in sections: 228, 229, 230 and 231 of Cr.P.C. However, in this case, when examination-in-chief of Muhammad Ashraf, A.S.I. was recorded second time as PW-5 till then neither charge was altered/re-framed nor any de-novo trial was ordered, therefore, after recording statement of Muhammad Ashraf, A.S.I. as PW-1 on 20.07.2022 there was no

occasion/reason to record his examination-in-chief again as PW-5 and getting him partially cross-examined on 25.01.2023. Therefore, with the concurrence of learned counsel for the appellants, learned Additional Prosecutor General and learned Deputy Prosecutor General, said proceedings comprising of examination-in-chief of Muhammad Ashraf, A.S.I. recorded as PW-5 and partial cross-examination over him are hereby discarded/set aside being illegal/void ab-initio and not curable, however, examination-in-chief of Muhammad Ashraf, A.S.I. recorded as PW-1, cross-examination conducted on the examination-in-chief recorded as PW-1 will remain intact and since partial cross-examination conducted on the examination-in-chief recorded as PW-5 has been discarded therefore in lieu of that accused persons will be afforded opportunity to conduct further cross-examination on Muhammad Ashraf, A.S.I. (PW-1) with respect to his examination-in-chief recorded as PW-1. Resultantly impugned judgment dated: 30.09.2023 passed by learned Additional Sessions Judge, Ferozewala is also set aside and case is remanded to the trial court with the direction that accused will be granted opportunity to further cross-examine Muhammad Ashraf, A.S.I. (PW-1) with respect to his examination-in-chief recorded as PW-1, thereafter statements under section: 342 Cr.P.C. of the accused persons will be recorded regarding cross-examination conducted over PW-1, they will also be afforded opportunity to rebut the same through production of defence evidence as well as appear under section: 340(2) Cr.P.C. also and then trial court will decide the case through a fresh judgment within one month. Meanwhile appellants will remain as undertrial prisoners. Appeal stands disposed of in above terms.

(ALI ZIA BAJWA) (FAROOQ HAIDER)

JUDGE JUDGE

Approved for reporting.

(ALI ZIA BAJWA) (FAROOQ HAIDER)

JUDGE JUDGE

This judgment has been dictated, pronounced, prepared and signed on 28.10.2025.

Iftikhar