P L D 1954 Lahore 139 (PLP)

MUHAMMAD JAN, J.‑The petitioners were tried by Mr. Tariq Ismail, A. D. M, Jhelum, on charges under sections 324 and 325 read with section 34 P. P. C. As some of the petitioners were injured at the hands of the opposite party the opposite party was also tried on charges under sections 324 and 325 read with section 34 P. P. C. The trial Court disposed of the two cross cases by one judgment against which two separate appeals were filed in the Court of the Sessions judge by the two parties. Counsel for both parties said in the appellate Court that the disposal of the two cross‑cases by one judgment was illegal. The appellate Court agreed with this view and observed that considerable prejudice had been caused to the accused by certain "mis‑state ments" of the trial Court. It was also found that the prosecution had failed to produce any evidence regarding the identity of the man who was killed. In these circumstances, the appellate Court held that it had no option but to accept the appeals, set aside the order of the trial Court and remit the case to the District Magistrate with the direction that he should either try the cross cases himself or make them over for trial to some section 30 Magistrate, other than Mr. Tariq Ismail, A. D. M. The parties who were on bail were ordered to appear in the Court of the District Magistrate Jhelum on 24th December 1952. On that date the case was ordered to be heard by the Sub‑Divisional Magistrate, Chakwal, and the accused were ordered to appear before him on 29th December 1952. After some adjournments Malik Karam Dad, Sub‑Divisional Magistrate, Chakwal, recorded a note on 5th February 1953 that the accused did not claim de novo trial. He then recorded the statement of leek Muhammad (P. W. 2) that Feroze Din deceased was his first cousin and be had identified his dead body at the time of the post‑mortem examination. After this, the record shows that the accused did not wish to add anything to their previous statements but wished to produce "further" evidence in defence. Two witnesses namely Hasan Din and Muhammad Malik, described as D. Ws. 6. and 7, were then examined. The other four witnesses were produced by the accused in the first trial which was set aside in appeal. On 24th February 1953 Malik Karam Dad delivered the judgment con victing the accused under section 325/34 P. P. C. and sentencing them to various terms of imprisonment. The convicts filed an appeal and the complainants filed a petition for enhancement of sentence. Both were dismissed. Against the order, dated 15th May 1953, whereby the appeal was dismissed this revision petition has been filed by the convicts and the main point urged before me that the proceedings in the Court of Malik Karam Dad Khan did not constitute a trial and the petitioners have been convicted by the Sub‑Divisional Magistrate without a trial. Under sec tion 423 clause (b), Criminal Procedure Code, the appellate Court can order the accused to be retried. An order to this effect was passed by the first appellate Court on 19th December 1952. The Sub‑Divisional Magistrate did not comply with that order.' He asked the accused whether they wanted a retrial and ignored the order of the appellate Court that they shall be retried. The Sub‑Divisional Magistrate appears to have acted under section

350. Criminal Procedure Code, which deals with conviction or commitment on evidence partly recorded by one Magistrate and partly by another and enables the succeeding Magistrate to act on the evidence recorded by his predecessor or partly recorded by his predecessor and partly by himself subject to the right of the accused to demand that the witnesses or any of them be resum mone6 and reheard. Because .the accused in this case did not make that demand, he did not retry them. Section 350, Criminal Procedure Code, had no application to this case. Here the first appellate Court had set aside the conviction of the petitioners because the trial was vitiated by serious prejudice to the accused caused by disregard of legal procedure, misreading of evidence and mis‑statement of facts in the judgment. The trial being vitiated, evidence recorded in that trial could not legally form the basis of a conviction. The only prosecution evidence in the retrial ordered by the appellate Court was the statement of Nek Muhammad that the deceased was his cousin and he had identified his body. Then there was the evidence of two defence witnesses giving alibi to Fazal Karim petitioner. No conviction could be based or such evidence. If the appellate Court had ordered a retrial from a point at which some error in the trial had occurred the Court holding the retrial could have started from that point and, in the absence of any prejudice to the accused, the action taken might have been free from objection. But in this case the order was not that the retrial should take place from any particular stage of the case and, in the absence of any such order, the retrial should have been of the whole case. In my opinion, there has been no retrial of the petitioners as directed by the Sessions judge E in his order-dated 19tb December 1952. I, therefore, set aside the conviction of the petitioners and order that they be retried according to law. The petitioners will be released on bail if they furnish security to the satisfaction of the District Magistrate: A. H. Retrial ordered.