Appellant Budho has been convicted by the learned Additional Sessions Judge, Tharparkar at Sangbar under section 411, P. P.C. And sentenced to one year R. I.
2. The allegation on which he has been convicted is that on or about the night between 4th and 5th of June 1968, at Deh Mooi, Taluka Shahadadpur he committed house breaking into the Kot of the complainant Abdul Rehman which was used as human dwelling after the hour of sun set and before the hour of sun-rise in order to commit theft and in fact theft of three goats belonging to the complainant Abdul Rehman was committed which ace found by the trial Court to have been recovered from the possession of the appellant on which charge he has, therefore, been convicted and sentenced as aforesaid.
3. The prosecution examined five witnesses who are mashir P. W. Nawab (P. W. 1), Ibrahim (P. W. 2), Police Constable Muhammad Bilawal (P. W. 3), A. S. I. Kalandar Bux (P. W. 4) and A.S. I. P.
Mohammed Rafique (P. W. 5) while statement of than complainant, Abdul Rehman which was recorded in the committal Court was brought on record of the trial Court under section 33 of the Evidence Act as the complainant was not traceable as his whereabouts were not known. Although the above-mentioned six witnesses' evidence has been placed on record by the prosecution but from none of them has said that the alleged recovered, goats, the subject-matter of the theft, were produced before the trial Court and marked as Article number or Exhibit number which is usually done in criminal cases of this kind. Since the property involved in the crime has not been produced at the trial and marked as an Article number or Exhibit number it has been argued by the learned counsel for the appellant, that in such an eventuality where is the assurance that in fact the theft of the alleged three goats of the complainant had taken place and they were subsequently recovered from the possession of the appellant as held by the trial Court ? Therefore, on this ground, the conviction of the appellant is vitiated. I am inclined to agree with this contention of the learned counsel and I am further of the opinion that the prosecution mp ditty 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 recovered from the possession of the appellant, was in fact set recovered. In the absence of doing so the conviction of the appellant is, obviously vitiated. The learned counsel, for the State was also not able to refute this, contention and most likely as he did not advance any argument it can be safely assumed that ha admitted the correctness of legality of this point.
4. Accordingly for the above reasons I set aside the conviction and sentence of the appellant and order that he shall be retried and the goats, subject-matter of the alleged theft which; are also further alleged to have been recovered from the appellant, shall at this new trial be produced and marked as an article or an exhibit number in the prosecution evidence. Accordingly, a trial de novo shall take place before a new Judge who has not tried the case earlier.
5. The above order of retrial was announced by me after hearing the counsel for the parties in the above appeal and I have now set out reasons for it. I might also state before signing the judgment that another co-accused Jam was also tried along with the appellant Budho but he was acquitted by the trial Court. Since he has been acquitted and there is no acquittal appeal there is nothing that can be done about him and his acquittal shall stand legally good and valid.