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Criminal Revision No. 735 of 1974, decided on 10th March 1975.

‑‑- S. 27‑ Recovery ‑Recovered stolen cycle neither actually produced in Court during trial nor shown to recovery witnesses‑ Only number and make as mentioned in F. I. R. and recovery memo put to accused in his examination under S. 342, Cr. P. C. Case property, not having been proved properly, prosecution, held, vitiated, in circumstances‑Conviction and sentence set aside.

Budho v. The State 1973 P Cr. L J 395 ref.

Shabbir Hussain Chatha for Petitioner.

Muhammad Sabir Bhatti for the State.

The petitioner has filed this revision to challenge his conviction under section 411, P. P. C. and the sentence of R. I. for nine months there under recorded by Magistrate First Class. Multan and affirmed in appeal by the Sessions Judge, Multan.

2. The case relates to the recovery of a stolen cycle belonging to Zahir ud‑Din complainant, which had been stolen from outside the National Bank premises, District Courts. Multan, on 9‑12‑1971, at about 11 a.m. After failing to find out the cycle in spite of search, Zahir‑ud‑Din reported the matter to the Police the neat day at 2‑15 p. m. He, how6vu, spotted the cycle on 11‑12‑1971, parked outside the tea‑shop of Ashiq Hussain P. W. and upon his inquiry the shopkeeper told him that it had been left thus by 6hulam Shabbir alias Shabbir the petitioner and he cold get it on the peti tioner's return. Zahir‑ud‑Din in the meantime informed a constable, who was on duty nearby, but as in spite of waiting the petitioner did not turn up, the cycle was taken to the Police Station where recovery memo. Bah. P. A. was prepared and later the case was challaned against the petitioner.

3. The theft of the cycle was established through Zahir‑ad‑Din P. W. 4 and the report lodged by him was duly proved as Exh. P. B. As regards recovery, the main witnesses are Ashiq Hussain P. W. 2, his employee Shabbir Hussain P. W. 1 and his neighbouring shopkeeper Khushi Muhammad P. W. 3. All the three witnesses have clearly deposed that the petitioner had come on the cycle to the shop of Ashiq Hussain at about 1 p.m., had parked it on the road side and had gone inside the shop for taking tea, where after he had left, asking Shabbir Hussain P. W. 1 to have an eye on the cycle until he returned from the bazar. They are corroborated by Zahir‑ud‑Din P. W. The petitioner's defence was a bare denial. Although he alleged enmity on account of litigation between the prosecution witnesses and his father‑in‑law. he led no evidence to establish the same. The lower Courts have held that the witnesses were independent and have no motive to falsely implicate the petitioner, and as such have believed their evidence and held the petitioner guilty.

4. It is contended that the trial is vitiated by a material irregularity in not exhibiting the cycle during the trial. The record does not show that the cycle had actually been produced in Court or shown to the witnesses or to the petitioner during the trial. All that has been done is that the number and make of the cycle, which had been cited in the F. 1. R., and in the Recovery Memo. Exh. P. A. had been put to the petitioner in his examina tion under section 342, Cr. P. C. This obviously is not enough, for the cycle being the case property the same should have been produced and proved in the Court. In fact there is also nothing to show that the prosecution satis fied the Court that the distinctive number actually did appear on the cycle. In Budho v. The State (1973 P Cr. L J 395), which was also a matter under section 411, P. P. C., it was held :‑

"The prosecution was duty bound to produce before the Court the crime 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 recover ed from the possession of the appellant was in fact so recovered. In the absence of doing so the conviction of the appellant is obviously vitiated."

In this view of matter the case property could not be held to have been properly proved. The prosecution stands vitiated and as such the convic tion and the sentence of the petitioner is liable to be set aside in the revisional jurisdiction of this Court. I accordingly allow the revision peti tion, set aside the conviction and the sentence passed against the petitioner and acquit him. He is already on bail. He is discharged of his bond.

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