P L D 2012 Balochistan 221
Before Mrs. Syeda Tahira Safdar, J
THE STATE through Additional Pro secutor -General and others ---Petitioners
Versus
Nawabzada SHAH ZAIN BUGTI and others ---Respondents
Criminal Revisions Nos.93, 108 to 138 and 143 of 2012, decided on 6th September, 2012.
(a) Penal Code (XLV of 1860) ---
----Ss. 353/109/186 ---Anti-Terrorism Act (XXVII of 1997), S.7 ---West Pakistan Arms
Ordinance t XX of 1965), Ss.13(d)/16/20 ---Criminal Procedure Code (V of 1898), S. 103---
Assault or criminal force to deter public servant from discharge of his duty, abetment,
obstructing public servant in discharge of public functions., acts of terrorism, possession of
illegal weapon, knowingly purchasing arms, etc., from unlicensed .persons --Permission for
production of recovered articles ---Frontier Corps and police acting co jointly allegedly
recovere d huge quantity of arms and ammunition from accused persons (respondents) ---Trial
Court did not allow prosecution to produce recovered arms, ammunition and vehicles on the
grounds that record did not disclose the facts whether said articles were taken into custody by
the police authorities; whether any seizure memo was prepared on the site; whether recovered
articles were declared as case property, and whether requirements of S.103, Cr.P.0 had been
complied with -Legality --F.I.R. disclosed that Frontier Corp s and police had acted co -jointly;
that Frontier Corps took physical possession of the recovered articles but since they were
large in number, only a list of the said articles was handed over to the police, which showed
that Frontier Corps had retained phy sical custody of the recovered articles ---Such
circumstances made it immaterial whether physical possession of the recovered arms,
ammunitions and vehicles was either with the Frontier Corps or with the police ---Said articles
were required to be produced b efore the court being part of the evidence and material
collected during course of investigation and additionally production of said articles was
essential for just decision of the case ---F. I.R. clearly disclosed preparation of seizure memo
at the relevan t time --Legal effect of compliance or non -compliance with provisions of S.103,
Cr.P.0 was not to be considered by the High Court at stage of revision, rather same was to be
considered by the Trial Court ---Trial Court had declined request of prosecution for
production of articles in question on mere technicalities ---Impugned order of Trial Court was
set aside and prosecution was allowed to produce the .recovered arms, ammunition and
vehicles as per seizure memo before the Trial Court --- Revision petitions we re disposed of
accordingly.
Dildar v. The State PLD 2001 SC 384 and Painda Gul v. State 1987 SCMR 886 ref.
(b) Criminal Procedure Code (V of 1898) ---
----S. 103--- Recovery of articles -Association of private witnesses ---Exceptions --- Provisions
of S. 103, Cr.P.0 were not applicable in instances where recovery was made at the site during
course of incident; where recovery was made from a running vehicle or train or at a public
thoroughfare, and where circumstances of the case made it impossible to procu re private
persons from the public to become witnesses.
(c) Criminal Procedure Code (V of 1898) ---
---Ss. 103 & 439 ---Compliance/non -compliance with provisions of 5.103, Cr.P.C. ---
Consideration by High Court in its revisional jurisdiction ---Scope ---Legal effect of
compliance or non -compliance with provisions of 5.103, Cr.P.0 was not to be considered by
the High Court at stage of revision, rather same was to be considered by the Trial Court.
Muhammad Wassay Tareen, Prosecutor General and Ms. Sarwat Hi na, Additional
Prosecutor -General for Petitioners.
W.N. Kohli, Sohail Rajput and Jameel Ramzan for Respondents.
Date of hearing: 3rd August, 2012.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. --Through this common order. Criminal Revision
Petition No.93 of 2012 along with Criminal Revision Petitions Nos.108/2012, 109/2012,
110/2012, 111/2012 112/2012, 113/2012, 114/2012, 115/2012 116/2012, 117/2012,
118/2012, 119/2012 120/2012, 121/2012, 122/2012, 123/2012 124/2012, 125/2012,
126/2012, 127/2012 128/2012, 129/2012, 130/2012, 131/2012 132/2012, .133/2012,
134/2012, 135/2012 136/2012, 137/2012, 138/2012 and 143/2012, are intended to be
disposed of, to avoid any contrary view as same order had been challenged in all the
mentioned petitions.
2. The petitione r challenged the order dated 11th June, 2012 of Additional Sessions
Judge -V, Quetta whereby the prosecution was not allowed to produce the recovered arms
ammunition, and vehicles due to the reason that the record failed to disclose the facts that
any of th ese articles were taken into custody by the police authorities, or at the site any
seizure memo was prepared, or recovered articles were declared as property of the case,
on grounds that the alleged articles were recovered and were taken into possession
through recovery memo Exh.P/I -C. Further, the marginal witnesses of the memo of
recovery were already cited as witnesses in the calendar of witnesses in the challan
submitted before the court. Therefore in view of the facts the production of the articles
cannot be declined. It was prayed that the recovered articles be allowed to be produced to
meet the ends of justice.
3. The learned Prosecutor General (PG) while arguing his case pointed out that the trial
court in first instance permitted production of the recovered articles through order dated
5th June, 2012, and thereafter, on 7th June, 2012, but by way of recording an observation
during course of recording statement of Prosecution Witness No.4 (P.W.4) declined them
to produce the articles. It was content ed that the recovered articles were taken into
custody, and the seizure memo was prepared as required under law. Therefore, the case
property was required to be produced being an important piece of evidence. But the trial
court failed to consider this aspe ct of the case, and did not permit them to produce the
articles. It was contended that there was misconception on the part of the trial court in
respect of non -compliance of requirements as provided under section 103 Criminal
Procedure Code (Cr.P.C) which in fact was not applicable in the instant case, because the
recovery was effected from the running vehicles.
4. The learned counsel for the respondent controverted the arguments with contention that
the contents of F.I.R. failed to disclose the fact of p reparation of any inventory memo at
the site, nor disclosed the fact that the alleged recovered articles were taken into custody
by the Police Authorities at relevant time. Therefore, in presence of these facts the alleged
articles cannot be amounted to be the case property, nor can be tendered in evidence. The
learned counsel placed reliance on:
(No such reference found) 2006 YLR 3107(sic)
Dildar v The State PLD 2001 SC 384
Painda Gul v State 1987 SCMR 886
5. The perusal of the case file reveals that through F.I.R. No.139. Police Station Airport,
District Quetta registered on 22nd December, 2010, an incident was reported, whereby,
huge quantity of arms and ammunition were alleged to be recovered from the accused
persons/ respondents. The contents of F.I.R. further disclosed that the Police and Frontier
Corps personnel, while acting co -jointly, succeeded in recovery of alleged arms and
ammunition from the custody of the respondents. The contents of F.I.R. speaks about the
fact that the Frontier Corp s Authorities took physical possession of the recovered arms,
and ammunition due to large in number, but only a list of the recovered articles was
handed over to the Police. In view of the noted facts it appeared to be an admitted,
position that Frontier C orps retained custody of the recovered articles and same is the
position at present. As far as list/ seizure memo of the recovered articles is concerned, the
contents of F.I.R. clearly disclosed preparation of the same at the relevant time.
6. While as f ar as objection pertaining to non -compliance, and non -applicability of
section 103, Cr.P.C. is concerned. "Though this section provides a complete procedure for
effecting of search, and attendance of witnesses during the process. But it is now an
establish ed principle that this provision is not applicable in certain instances when the
recovery was made either at the site during course of incident from running vehicle or
train, or at public thoroughfare, or where circumstances of the case make it impossible to
procure private persons from the public to become witness, and many more. In case in
hand according to the prosecution case the recovery was effected from the vehicles. But,
the legal effect of compliance or non compliance of provisions of section 103 C r.P.C. is
not to be considered by this court at stage of revision. Rather, while making final decision
the trial court is required to consider the same and record findings to the effect. The only
question before this court is that whether the prosecution b e allowed to produce the
articles in evidence or otherwise?
7. Therefore, keeping in view the state of facts as discussed hereinabove, and relevant
provision of law admittedly the alleged action was taken by the Frontier Corps in
association with Police, which cannot be separated. Therefore, in the circumstances, it
will be immaterial that the physical possession of the recovered arms, ammunition, and
vehicles were either with the Frontier . Corps or with the Police. In each case the
recovered articles are deemed to be the case property pertaining to the instant case.
Therefore, required to be produced before the court being part of the evidence, and
material collected during course of investigation. In addition production of the articles is
essential for j ust decision of the case. It is observed that the trial court through orders
dated 5th June, 2012, and 7th June, 2012 not only permitted the prosecution to produce
the seized arms ammunition, and vehicles before the court, and tendered them in
evidence, an d made specific directions to the effect. But contrary to its own orders during
course of recording of statement of PW -4 on objection raised by defence counsel, the
articles were not allowed to be produced. In view of the facts the order of the trial court
was of no legal effect being contrary in nature. The trial court declined the request on
mere technicalities, which was neither just, nor I proper. Rather actual facts must come on
record to help the court to arrive to a just decision. As far as evidentia ry value of the
recovered articles is concerned, this is not the stage to record findings to the effect. As the
trial is yet to be concluded, and decision is to be made thereon.
8. In view of the above discussion the impugned order dated 11th June, 2012 is hereby set
aside. The prosecution is allowed to produce the recovered arms, ammunition and
vehicles as per seizure memo Exh.P/1 -C before , the trial court, who is directed to proceed
with the matter in accordance with law without any further delay.
The petition stand disposed of in above terms.
MWA/88/Bal. Petition allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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