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Criminal Appeal No. 414 of 1970, decided on 18th December 1972.

----S.13 (e).--- Recovery-Crime weapons allegedly recovered from accused-appellant neither produced during trial nor exhibited-Non-production of such articles, held, belies actual recovery from accused Conviction and sentence set aside in circumstances-he novo trial ordered.

Shaikh Rehman Bakhsh for Appellant.

S. Murtaza Hussian for the State.

Date of hearing: 18th December 1972

Appellant Budho has been convicted by the learned Additional Sessions Judge, Tharparkar at Sangher under section 13 (e) of the West Pakistan Arms Act, 1965 and sentenced to six months R. I. He has now appealed against his said sentence and conviction.

2. At the trial of the appellant two witnesses '"re examined by the prosecution who are A. S. I. P. Kalandar Bux (P. W. 1) complainant in this case and A. S. I. P. Mohamed Rafique. The appellant was charged with the crime that one country made .12 bore pistol and two cartridges were recovered from his possession for which he had no licence. The appellant denied the allegation of this recovery of the fire-arm from him and has examined Toohar as his defence witness who was disbelieved.

3. But none of the two prosecution witnesses who have been examined at the trial has produced the alleged pistol and cartridges said to have been recovered from the possession of the appellant and marked as crime article in the evidence giving it a number or proper exhibit number. In the absence of production of these crime articles in the prosecution evidence the learn counsel for the appellant has contended that where is the assurance that in such an eventuality it can be said that thee pistol and the cartridges were actually recovered from the possession of the appellant as alleged by the prosecution witnesses In these circumstances, therefore, he further argues that the conviction of the appellant is not sustainable and is at least vitiated. I agree with him with this contention of his and the learned counsel appearing on behalf of the State was also not able to refute this contention and could not cite any contrary law. In my opinion, therefore, a retrial of the case has to be ordered so that the fire-arm and the cartridges in question may be produced and marked as crime article or exhibit number in the prosecution case at the new trial which is going to take place.

4. Accordingly, I set aside the conviction of -the appellant and order a re-trial de novo by another Judge competent who shall try his case anew. This case is connected with Sessions Case No. 29 of 1970 of the trial Court and preferably should be tried after that Sessions case, in which also retrial has also been ordered, has been tried again.

5. The above decision of retrial was announced orally after hearing the arguments of the learned counsel for both sides in the appeal when they were finished and I have now given my reasons for the decision of the retrial.

Appeal allowed.

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