JUDGMENT MRS. SYEDA TAHIRA SAFDAR, J. - Through this common order, criminal revision petition No. 93 of 2012 alongwith 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, 125/20.12, 126/2012, 127/2012, 128/2012, 129/2012, 130/2012, 131/2012, .'132/2012, 133/2012,.
13,4/2012, 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 petitioner 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 these of 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..Ex. P/1-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 at 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 (PW-4) declined them to produce the articles. It was contented 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 aspect 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 preparation of any inventory memo, at the site; nor disclosed the fact that the alleged recovered articles were taken into custody by die Police Authorities at relevant time. Therefore, in presence of these facts the alleged articles cannot be amounted to be the case properly, nor can be tendered in evidence. The learned counsel placed reliance on:- (No such reference found) (2006 YLR3107).
Dildar v. The State (PLD 2001 SC 384).
Painda Gul v. State (1987 SCM R 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 Corps Authorities took physical possession or the recovered arms, and ammunition due to large in number, but only a list or the recovered articles was handed over to the Police. In view of the noted facts it appeared to be an admitted position that Frontier Corps 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 far 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 established 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, Cr.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 be 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 just 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, and made specific directions to the effect. But contrary to its on 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 proper. Rather actual facts must come on record to help the Court to arrive to a just decision. As far as evidentiary 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. Ex. 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.