Incriminating material

Trial Court sought the explanation of the accused under section 342 Cr.P.C. on the basis of report submitted by police u/s 173 Cr.P.C. and not on the basis of material brought on record of the trial Court by prosecution — This way of examining the accused under section 342 Cr. P.C. is not recognized by any canon of law or justice. Muhammad Mushtaq v. State 2001 SCR 286 (H)
If the explanation of accused is not sought on the incriminating material which appears against him in the evidence of prosecution, the same cannot be used against him in order to sustain a conviction — Trial Court as well as Sharait Court, committed serious illegality while relying upon a material which either did not form the part of record of the prosecution case or which formed the part of the record but the same was not put to accused u/s 342 Cr.P.C. M. Mushtaq v. State 2001SCR286 (J)
By seeking explanation of the convict-appellant on such incriminating material without its being part of the file of the prosecution or being part of the evidence of prosecution has seriously prejudiced the convict-appellant resulting into miscarriage of justice and against the accepted principle of fair play. Muhammad Mushtaq v. State 2001 SCR 286 (G)
The law on the point stands settled that the explanation of accused-convict is to be sought only on the incriminating material which is brought on record by the prosecution — The extraneous circumstances which do not form part of the evidence of prosecution are not material for the purpose of conviction and those cannot be taken into consideration. Muhammad Mushtaq v. State 2001 SCR 286 (I)