1. ' Wazir Bat appellant was tried by Mian Mohammad Salim, Magistrate First Class, Hangu, under section 13 of the West Pakistan Arms Ordinance, 1965, for having been found in possession of unlicensed arms and ammunition on 21st November, 1978. He was eventually convicted for the offence charged with and was sentenced to undergo 6 years' rigorous imprisonment and a fine of Rs, 2,000 or in default of the payment of fine to suffer rigorous imprisonment for a' further period of 6 months, ride, the impugned judgment dated the 25th of May, 1979. He has appealed against his conviction and sentence. The appeal will be disposed of by this judgment.
2. ' The facts of the prosecution case as revealed in the initial Report (Murasala Exh. P. A.) made by Sayed Saraj-ul Hassan, Station House Officer, Police Station, Hangu, P.W. 2, on 21st of November, 1978 which form the basis of the First Information Report Exh. P. B. Briefly are that the Station House Officer received a secret information through an informer that the accused-appellant was providing refuge to proclaimed offenders and was also keeping illicit arms in his own house. The said officer, on the 21st of November, 1978, submitted an application Exh. P A 1 for obtaining a warrant for the search of the house belonging to the accused. The Illaqa Magistrate issued the search warrant Exh. P. A./2, the same day. Thereupon, a police party headed by Deputy Superintendent of Police, Hangu, accompanied by one Malik Musharaf Khan, raided the house of the accused and recovered 4 Rifles, 2 shot guns, one Revolver and a dagger alongwith some live rounds contained in bandoliers and handkerchief, from ti-ere. All these articles were taken into possession by the S.H.O. Vide Memo. Exh. P. C. Which was attested by two Assistant Sub-inspectors of Police, namely. Mohammad Afzal P.W. 3, and Mohammad Anwar and one Malik Musharif Khan.
3. He also prepared the site plan Exh. P D.
4. ' The prosecution examined three witnesses ; namely, Israf Gul Moharir Head Constable P.W.
1. Siraj-ul-Hassan S.H.O., P.W. 2, and Mohammad Afzal Assistant Sub-Inspector P.W. 3, at the trial to support its case. The first of these witnesses is a formal witness in that all that he did was that he recorded the First Information Report Exh. P- B. Incorporating therein the Murasla Exh. P. A. The other two witnesses supported the factum of recovery from the house of the accused.
5. ' The accused when examined pleaded not guilty, professed innocence and stated that he had been falsely charged. No evidence, however, was led in defense.
6. ' Upon consideration of the evidence on record, the trial Court came to the conclusion that the prosecution cases stood proved beyond reasonable doubt, and consequently convicted and sentenced the accused, as already indicated.
7. ' After taking me through the evidence on the record, the learned counsel for the appellant contended that the charge framed by the trial Court was defective inasmuch as all the details of the articles said to have been recovered from the house of the appellant have not been given in the charge and it has reference to the recovery of only two .12 bore shot-guns, 24 cartridges one empty and one rifle, whereas according to the First Information Report and the impugned judgment some other arms and ammunitions had also been recovered from him. He maintained that this omission in the charge would vitiate the proceedings as a result of which the appellant would be entitled to acquittal. It is true that the charge refers to some of the arms and ammunitions out of the whole alleged to have been recovered from the appellant. This omission, however, would not result either in vitiating the proceedings or in the acquittal of the appellant.
8. Sections 225 and 537 of the Code of Criminal Procedure deal with cases where a charge is framed but there are errors or omission in the statement and the particulars specified in sections 221 to 223 of the said Code. Section 225 provides that such errors or omissions are not to regarded as material at any stage unless the accused has been misled thereby and it has, in fact, occasioned a failure of justice, while section 537 provides that no finding, sentence or order in the case shall be reversed or altered on appeal or revision unless it has occasioned a failure of justice. Section 535 of the Criminal Procedure Code deals with cases where no charge has been framed at all, and provides that no finding or sentence in the case should be. Deemed invalid in appeal or revision unless the Court considers that the failure of justice has been occasioned thereby. Subject to the provisions of sections 529 to 536 no omission, errors or irregularity in any proceeding will necessarily entail the reversal or alteration I appeal or revision of any finding, sentence or order unless such error, omission or irregularity has, in fact, occasioned the failure of justice. It is for the Court to decide in each case whether the defect in the charge has misled the accused or has occasioned a failure of justice. The learned counsel for the appellant was not in a position to show if the appellant was misled by the omission in the charge pointed out by him nor was he able to contend that the omission occasioned the failure of justice. It will not be out of place to point out here that in considering the question whether the accused has been prejudiced in his defence by the defect in the charge, regard must be had to the fact that objection to the framing of the charge was not raised in the proceedings before the trial Court. In the present case, no objection as to the defect in the charge was taken by the appellant in the trial Court. On consideration of all these facts, the conclusion I have a, rived at is that there is no substance in the contention raised by the learned counsel for the appellant, that the omission in the charge like the present one would vitiate the proceedings or that it should result in the acquittal of the accused.
9. ' It was next contended by the learned counsel for the appellant that none of the two prosecution witnesses who have been examined at the trial with regard to the recovery of crime articles has produced .The crime articles in the trial Court. He argued that in the absence of production of the crime articles in the prosecution evidence, it cannot be said that they were actually recovered from the possession of the appellant a alleged by the prosecution and, therefore, the conviction of the appellant is not sustainable. The learned counsel appearing on behalf of the Stat frankly conceded that the crime articles had neither been produced in, nor had they been exhibited by, the trial Court. In this situation, the question that arises for determination. Is as to what would be the effect of non-production of crime articles in the trial Court during the proceedings before it. The question is very easy to determine because a similar question came up for decision in the case of Budho v.
10. State (1). The facts of that case were that the pistol and cartridges said to have bee recovered from the possession of the appellant were neither produced before, nor were they exhibited by the trial court. It was held that in the absence of production of the crime articles in the prosecution evidence, the conviction of the appellant was not sustainable and, therefore, th retrial of the case was ordered. This authority is on all fours with th present case and I see no reason as to why it should not be. Followed. The proper course for me to adopt is, therefore, to allow the appeal, se aside the conviction and the sentence and to remand the case for retrial from the stage it became irregular, namely, from the drawing up of the charge.