1989 P Cr (PLP)

(2) 3 .7 m.m. rifles (Exh.P.2/1‑3). (3) 2 shotguns .12 bore (Exh.P.3/1‑2). (4) 3 pistols .30 bore (Exh.P.4/1‑3). (5) One pistol of .32 bore (Exh.P.5). (6) One pistol of .22 bore (Exh.P.6) and (7) 7700 live bullets and cartridges of S.M.G., 7 m.m. pistols .32 bore and .22 bore as also cartridges of shotgun of .12 bore (Exh.P.7/1‑7700). The aforesaid arms and ammunition were secured vide memo. Exh.P.B. On personal search of Habibullah petitioner, a sum of Rs.150, a wrist watch, his identity card and his driving licence were secured vide memo. Exh.P.C.

3. There is no need to discuss the evidence in detail, because the learned counsel for the petitioners has taken up a legal objection to the effect that trial of the petitioners is vitiated by material irregularity in not exhibiting the illicit arms while the evidence of recovery witnesses, namely, Moosa Khan P.W.2 and Abdul Majid S.I. P.W.4 was being recorded by the trial Court, as there is nothing on the record to show that the illicit arms allegedly recovered from the possession of the petitioners were shown to them in the Court, and were exhibited as such. The learned counsel has further contended that there is only evidence of Bashir Ahmad A.S.I. P.W.3 which was recorded on the same day in which there is mention of exhibits regarding recovery of illicit arms from the truck in question. From the narration of facts it appears that these illicit arms were not produced in the Court though they were exhibited. The learned counsel further submitted that while recording the statements of the petitioners under section 342, Cr.P.C. no specific question with respect to the recovery of illicit arms was put to them and they have been prejudiced in their defence by not specifically putting this question, hence the whole trial has vitiated in the eye of law. He has placed reliance on (1) Ghulam Shabir v. The State P L J 1976 Lah. 201, wherein it has been held that failure to exhibit case property (cycles) during trial vitiates trial and that putting to petitioner in his examination under section 342, Cr.P.C. number and make of cycle which was cited in F.I.R. and recovery memo. was not enough, for cycle being case property should be produced and proved in Court. The conviction and sentence of the petitioner was set aside for such material irregularity. (2) Muhammad Tufail and another v. The State 1972 P Cr. L J

166. In this case, the accused was not questioned about the hatchet. The learned Judges observed that the prosecution has failed to prove its case against the appellant on this around. (3) Kaura and another v. The State P L D 1978 BJ 39 wherein the accused. was not examined in his statement under section 342, Cr.P.C. about the factum of abscondence. It was held that abscondence cannot form basis of conviction. (4) Abdus Salam Molla v. The Crown P. L D 1955 FC

129. In this case the learned Judges set aside the conviction of the appellant for non‑compliance of the provisions of section 342, Cr.P.C. because it caused prejudice to the accused. (5) Budho v. The State 1973 P Cr. L J

395. In this case it was observed that the prosecution was duty bound to produce before the Court the case property and mark it as an exhibit or article so as to afford assurance to the Court that in fact the crime property, said to have been recovered from the possession of the appellant, was m fact, so recovered. In the absence of doing so, the conviction of the appellant was obviously vitiated, and (6) Budho v. The State 1973 P Cr. L J

537. In this case crime weapons allegedly recovered from the accused were neither produced during trial nor exhibited. It was held that non‑production of such articles belied actual recovery from accused. Conviction and sentence of the accused were set aside and de novo trial was ordered.

4. The learned counsel for the State has vehemently argued that in view of the change brought about in section 537, Cr.P.C., the irregularity in the mode of trial cannot be made basis for setting aside the conviction unless it is proved that it has resulted into miscarriage of justice. According to him, there is straightforward and reliable evidence against the petitioners that they were carrying the illicit arms and ammunition in the truck which were recovered by the police party as stated above, hence on mere technicalities this revision petition should not be accepted. Learned counsel for the State also argued that there is no mitigating circumstance in favour of the petitioners, their conviction and sentence be maintained.

5. I have considered the arguments of the learned counsel for the parties and have minutely perused the case‑law cited by the learned counsel for the petitioners. I find considerable force in the submission of the learned counsel for the petitioners that in the present case the illicit arms and ammunition were neither produced in Court nor exhibited when the evidence of Moosa Khan LHC P.W.2 and Abdul Majid S.I. P.W.4, the alleged recovery witnesses, was being recorded and this failure on the part of the prosecution has materially prejudiced the petitioners in their defence. Even the prosecution has not complied with the provisions of section 342, Cr.P.C. while examining the petitioners, hence it has resulted into failure of justice.

6. The learned counsel for the State was also not able to refute this contention and could not cite any contrary law in support of his submission.

7. Accordingly set aside the conviction and sentence of the petitioners and remand the case to the District Magistrate, Attock for entrusting it for trial to some other competent Court other than the Magistrate who decided the case. The concerned Court shall summon the petitioners to face the trial in accordance with law, and conclude the trial as expeditiously as possible. S.A./H‑115/L Re‑trial ordered.