Tariq Saleem Sheikh, J.--This appeal under Section 48 of the Control of Narcotic Substances Act, 1997 (the "Act"), is directed against judgment dated 27.5.2019 passed by the learned Additio nal Sessions Judge, Layyah, in case FIR No. 122/2018 dated 12.4.2018 registered at Police Station Saddar Layyah for an offence under Section 9(c) of the Act.
2, Brief facts of the case arc on 12.4.2018 Complainant Atta Meeran/ASI (PW-3) was on patrol duty along with other police officials. They were at Railway Crossing Faqirwali on link metalled road of Chak No. 149-C/TDA when he saw the Appellant coming on foot from south but turned back on seeing them. This made the Complainant suspicious and he went after him with his men and apprehended him. He made his personal search and recovered 1070 grams heroin from the shopping bag that he was holding. Atta Meeran/ ASI drew sample of 53.5 grams from the recovered substance for chemical analysis and prepared sealed parcel thereof and secured the residue P-1 in a separate parcel. Then he seized both the parcels vide Recovery Memo. Exh.P A, drafted complaint Kxh.PB and forwarded it to the police station through Khalid/PQR on the basis of which Qambar Mushtaq/ASI (PW-5) registered FIR Exh.PD,
3. The investigation of the case was entrusted to Muhammad Umar Khan/SI (PW-4) who went to the place of recovery , interrogated the Appellant, prepared rough site plan Exh.PC and recorded the statements of the witnesses under Section 161, Cr.P.C. On his way back to the police station he handed over the case property to Kauro Khan 422/HC (PW-2) for safe custody . During his investigation PW Muhammad Umar Khan/SI found that the Appellant had committed the of fence and challaned him.
4. On 2.6.2018, the learned Additional Sessions Judge indicted the Appellant who pleaded not guilty and claimed trial. The prosecution produced five witnesses to establish its case. Sajid Mehmood 692/C (PW-1) and Atta Mceran/ASI (PW-3) testified about the recovery of contraband heroin from the Appellant. Atta Meeran/ ASI (PW-3) also deposed that he delivered the sample parcel to the Punjab Forensic Science Agency (PFSA). Kauro Khan 442/HC was Moharrar of the police station who proved safe custody of the case property in Malkhana. Qambar Mushtaq/ASI (PW-5) registered the FIR Exh.PD on the basis of complaint Exh.PB. The Investigating Officer, Muhammad Umar Khan/SI (PW-4), gave details of the investigation that he carried out in this case. The prosecution gave up PW Ghulam Mustafa 158/HC being unnecessary and in documentary evidence inter alia adduced report of the PFSA Exh.PE, copies of Rapat Nos.1/23 & 1/17 Exh.PF and Exh.PG, application for issuing docket Exh.PH and attested copy of the docket issued by the Excise Department Exh.PJ.
5. In his statement under Section 342, Cr.P.C. the Appellant refuted the prosecution evidence and professed innocence. In reply to the question as to why this case had been registered against him and why the PWs had deposed against him, he said: "I am innocent. My father , my brothers and other family members are illegally residing at the land of Salcem Khan Jatoi Inspector CTD, District Bhakkar . I reside in Tehsil Kot Addu and deal in supp ly of `Khais' and blankets in the area of Tehsil Karor . Saleem Khan Jatoi got said land vacated from my father and brothers who were living on his land due to this grudge he in connivance with Complainant Atta Meeran and Umar Khan I.O. arrested me from house of my father situated in Karor on the date of alleged occurrence and booked me in a false and frivolous case and alleged recovery was planted upon me. Nothing was recovered from me and I was not arrested from the alleged place of occurrence. Only on asking of said Salcem Khan Jatoi Complainant Atta Meeran and Umar Khan 1.0. of this case involved me in this case maliciously due to his relation with said Saleem Khan Jatoi."
The Appellant neither got his statement recorded on oath under Section 340(2), Cr.P.C. nor examined any witness in his defence. However , he tendered in evidence report of New Masood and Friends Goods Forwarding Agency (Mark-DA) and receipt of W aseem Ashraf Goods Forwarding Agency (Mark-DB).
6. On the conclusion of trial, vide judgment dated 27.5.2019, the learned Additional Sessions Judge convicted the Appellant under Section 9(c) of the Act and sentenced him to rigorous imprisonment for six years with fine of Rs.30,000/- and in default thereof to undergo simple imprisonment for a further period of six months. However , he extended benefit of Section 382-B, Cr .P.C. to him. Hence, this appeal.
7. The learned counsel for the Appellant contended that the Appellant was innocent and the prosecution case was false and concocted. All the prosecution witnesses were police officials. Their testimony was not trustworthy as they were inconsistent on material points. The Complainant being ASI was not competent to arrest the Appellant in a narcotics case in view of Section 21 of the Act. As such, all the proceedings were coram non judice . He maintained that allegedly 1070 grams heroin was recovered from the Appellant and the sample drawn therefrom was sent to the PFSA for chemical analysis. However , when his statement under Section 342, Cr.P.C. was recorded he was not confronted with this fact which had prejudiced him. Resultantly , his conviction and sentence was not sustainable and the impugned judgment was liable to be set aside.
8. The learned Deputy Prosecutor General controverted the above contentions. He contended that the prosecution had proved the charge beyond any shadow of doubt so no exception could be taken to the impugned judgment. As regards the defect relating to the Appellant's statement under Section 342, Cr.P.C., he contended that the learned Court had duly confronted the Appellant with all the incriminating evidence that was brought against him during the trial and had also put the forensic report Exh.PE to him so that he could explain his position. Although, in Question No. 5 of the said statement the word "charas" instead of "heroin" was used, it had not prejudiced him. The learned Law Officer submitted that it was just a clerical mistake and could be ignored. He prayed for dismissal of this appeal.
9. Arguments heard. Record perused.
10. We start with the objection of the learned counsel for the Appellant relating to the statement under Section 342, Cr.P.C. Question No. 5 of the said statement reads as under: "It is in the prosecution evidence that sample of recovered charas was sent to the office of PFSA, Lahore wherefrom report Exh.PE received positive. What do you have to say about it."
The. Appellant responded to this question as follows: "It is incorrect. A false and fabricated parcel was prepared."
11. Admittedly , the prosecution case is that 1070 grams heroin was recovered from the Appellant out of which Atta Meeran/ASI (PW-3) drew a sample of 53.5 grams which was subsequently sent to the PFSA for chemical analysis.
We agree with the learned counsel for the Appellant that the learned trial Court has erred while framing Question No. 5, supra , as it has mentioned "charas" instead of "heroin". However , it is doubtful whether the Appellant was misled by this error. Nevertheless, in order to secure the ends of justice we deem it proper that the matter should be remanded to the learned Additional Sessions Judge to record the Appellant's statement under Section 342, Cr .P.C. afresh taking care of the mistake it committed earlier .
12. Since we are remitting the appeal in hand; we have not adverted to the other contentions raised at the bar by the learned counsel for the Appellant.
13. In view of the foregoing, this appeal is accepted and the impugned judgment dated 27.5.2019 convicting and sentencing the Appellant is set aside. The case is remanded to the learned Additional Sessions Judge with a direction to record the statement of the Appellant and render a fresh judgment in accordance with law within 30 days from the receipt of this judgment. Of fice shall send back the record to him immediately .
14. Admittedly , the Appellant was on bail during the first round of his trial. Inasmuch as we have set aside his conviction and sentence, we admit him to bail till the fresh decision of his case subject to his furnishing bail bonds in the sum of Rs. 200,000/- (Rupees two hundred thousand) with one surety in the like amount to the satisfaction of the learned trial Court. After the fresh judgment is delivered he would be dealt with in accordance with the terms thereof.