P L D 1952 Dacca 253 (PLP)

ISPAHANI, J.‑

The appellant was placed on trial before the Assistant Sessions Judge, 1st Court of Bakarganj, and three Assessors to answer the following charge "That you along with others on or about the 8th Asivin, 1356 B. S corresponding to 26th day of September 1949, at Atoshkhali, P. S. Banfal, committed dacoity in the boat of complainant Rashanali and his partners and thereby committed an offence punishable under section 395 of the Pakistan Penal Code . . . . ." The learned Judge, accepting the divided opinion of the two Assessors at the end of the trial, has convicted the appel lant under the said section and sentenced him to suffer rigorous imprisonment for five years. Mr. Sayem, appearing for the appellant, without going into the merits of the appeal, has contended that the trial was illegal in view of the fact that the trial commenced with three Assessors and ended with two, because on the first day of trial the third Assessor, Abdul Sadek Noor Muhammad, after the midday recess, absented himself and the learned judge proceeded with the trial with the aid of the other two Assessors without ascertaining if there was any sufficient cause for the Assessor in question to be absent and whether it was practic able to enforce his attendance. Section 284 of the Code of Criminal Procedure provides that the trial should be held with the aid of at least three Assessors. Section 285 (1) of the Code is as follows : "If in the course of a trial with the aid of Assessors, at any time before the finding, any Assessor is, from any sufficient cause, prevented from attending throughout the trial, or absents himself, and it is not practicable to enforce his attendance, the trial shall proceed with the aid of the other Assessor or Assessors". The learned Judge could have proceeded with the trial with the aid of the other two Assessors only if he had ascer tained that the absence of the third Assessor was due to a "sufficient cause" and it was not practicable to enforce his attendance after steps were taken to enforce such attendance. The judgment and the order‑sheet show that no attempt was made by the learned judge to enforce the attendance of Abdul Sadek Nour Muhammad after the midday recess on the first day of the trial. There is nothing to show that the learned Judge considered that the absence of this Assessor was due to a "sufficient cause" within the meaning of section 285(1) of the Code. His failure to comply with the procedure is a material irregularity which has vitiated the trial. In this connection reference may be made to Baddan v. Emperor A I R 1946 All. 253 which supports the view taken above. In these circumstances, we allow the appeal and set aside the conviction and sentence of the appellant under section 395 of the Pakistan Penal Code and direct that he be retried according to law. Pending retrial, the appellant will remain in Hajat. IBRAHIM, J.‑

The appellant has preferred this appeal from the conviction and sentence passed upon him by the Assistant Sessions Judge, 1st Court of Bakarganj, under section 395 of the Pakistan Penal Code. The trial began with the aid of three Assessors including Moulvi Abdul Sadek Noor Muhammad. This gentleman absented himself after the midday recess on the first day and did not turn up again. The learned Assistant Sessions Judge proceeded with the trial without making any attempt to enforce his attendance. Mr. Sayem impugns the trial as illegal on the ground that it was held in violation of the provisions of section 285 of the Code of Criminal Procedure. In support of his contention he has relied on Baddan v. Emperor (supra) the facts of which case are similar to the facts of the present case. The contention of Mr. Sayem must be conceded in view of section 285 of the Code of Criminal Procedure, which says that if in the course of a trial with the aid of Assessors, at any time before the finding, any Assessor is, from any sufficient cause, prevented from attending throughout the trial, or absents himself, and it is not practicable to enforce his attendance, the trial shall proceed with the aid of the other Assessor or Assessors. It makes it clear that in the event of an Assessor absenting himself in the midst of the trial, the trial can proceed with the remaining Assessor or Assessors only in the event that it is not practicable to enforce his attendance. The phrase "it is not practicable to enforce his attendance" clearly means that the judge must make an attempt to procure his attendance. There is nothing in the record to show that any such attempt was made and that it was not practicable to enforce his attendance. I, therefore, agree that the conviction and sentence of the appellant cannot be sustained. The appellant must be tried afresh according to law. Pending retrial, the appellant will remain in Hajat. A. H. Retrial ordered