' She petitioner has filed this revision to challenge his conviction under-section 411, P. P. C. And the sentence of R.. I. For nine months thereunder recorded by Magistrare 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 next day at 2-15 p.m. He, however, spotted the cycle on 11.12-1971, parked outside the tea-shop of Ashiq Hussain P. W. And pon his inquiry the shopkeeper told him that it had been left there by Ghulam Shabbir alias Shabbir the petitioner.And he could get it on the petitioner'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. Exh. P. A. Was prepared and later the case was challaned against the petitioner.
3. The theft of the cycle was established through Zahir-ud-Din P. W. 4 and the report lodged by him was duly proved as Exh. P. B. As regards recovery, the main witnesses arc 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 Zahirlud-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 bad been cited in the F. I. R., and in the Recovery Memo. Exh. P. A. Had been put to the petitioner in his examination 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 satisfied the Court that the distinctive number actually did appear on the cycle. In Budho v. The State (1), 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 recovered 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 conviction and the sentence of the petitioner is liable to be set aside in the A revisions' 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. {{FOOT NOTE}}
(1) 1973 P Cr. L J 395 {{FOOT NOTE}}