2008 P Cr (PLP)

SARDAR M. ASHRAF KHAN, J.

The legality and correctness of an order passed by Additional District Criminal Court, Muzaffarabad, dated 26-5-2007 has been called in question through the above titled revision petition.

2. The facts briefly stated are that the accused-petitioners and respondents Nos.3 to 5 are facing trial in a case registered against them under sections 302, 324, 147/148/149 and 337, A.P.C. before the trial Court. The case was at the stage of final arguments and in the meantime due to disaster of 8th October's earthquake the record pertaining to whole case was destroyed. On presentation of application for reconstruction of record, the trial Court after hearing the parties vide its order, dated 26-5-2007 started reconstruction after summoning opposite party. However, during the process, it was noticed, that permission for the same is required by the Shariat Court which was granted on 16-4-2007. It is contended by the learned counsel that reconstruction proceedings may be started afresh and that proceedings already initiated may be set aside. The trial Court rejected the prayer through impugned order, dated 26-5-2007. It is the aforesaid order which has been assailed through the instant revision petition.

3. Syed Tayab Gillani, the learned counsel for the petitioners argued that the trial Court committed grave illegality while recording the impugned order, therefore, the same may be vacated by accepting the revision petition. The learned counsel further contended that the orders of the trial Court dated 26-4-2007 and 5-5-2007 are varied and against the norms of law and justice. The learned counsel further argued that reconstruction proceedings may be started afresh after the permission of Shariat Court and that before construction of record it was enjoined upon the trial Court to obtain objections from the petitioners but the trial Court without obtaining the same recorded the impugned order which is bad in law.

4. On the other hand, the learned Advocate-General while controverting the arguments raised by the learned counsel for the petitioners submitted that the accused-petitioners participated the proceedings of the case as such they cannot back out from their participation and claim to restart the proceeding afresh. The present case is a very old one, which requires early adjudication. The State Counsel further contended that the order of the trial Court, dated 7-4-2007 is very clear, therefore, the impugned order has been passed in accordance with law which warrants no interference by this Court. The State Counsel submitted that no illegality or irregularity has been committed by the trial Court therefore, the revision petition may be dismissed. The learned State counsel defended the impugned order on all counts.

5. I have heard the learned counsel for the parties and perused the relevant record with utmost care.

6. It reveals from the perusal of record that on 5-10-2006 an application for reconstruction of record pertaining to criminal murder case titled "State v. Muhammad Irshad and others" was filed, praying therein that due to earthquake on 8-10-2005, the record of the aforesaid case was destroyed however, the verified copies of the record along with available record was presented for reconstruction of the same. The opposite party was summoned accordingly and according to interim order, dated 24-2-2007, the learned counsel appearing on behalf of the accused-petitioners sought an adjournment for producing the record in c their possession. But despite of availing three adjournments, they failed to produce the same. Therefore, the trial Court fixed the date for arguments as to whether the prayer of reconstruction of record may be allowed or not? However, the trial Court felt advised to seek permission from the Shariat Court for reconstruction of record and the same was allowed by this Court on 16-4-2007.

7. The contention of the learned counsel for the petitioners is that the record already collected and made part of reconstruction consists upon photocopies, as such the same is not admissible in evidence and that the reconstruction of the file may be initiated from the date of permission of Shariat Court.

8. It appears from the perusal of the interim orders of the trial Court that right from filing the application by the complainant up to the approval of Shariat Court for reconstruction, no objection was ever raised with regard to these photocopies before the trial Court, rather the learned counsel appears to be requesting the trial Court to grant time for submitting of record in their possession. Thus, the participation of the petitioners in the whole proceedings before the trial Court bars them to raise such objection at this stage. The documents available from the complainant are already on file and the petitioners are free to produce, any concerned documents, if any, in their possession. Therefore, the objection raised by the learned counsel for the petitioners is repelled.

9. So far as the admissibility of the documents annexed with the file for reconstruction of the record is concerned, suffices it to say that as the matter is pending for adjudication before the trial Court, therefore, it is the trial Court, which is the proper forum to decide the matter in the light of special circumstances of the case.

10. For the reasons listed above, finding no force in this revision petition, therefore, the same stands dismissed. H.B.T./20/Sh.C.(AJ&K) Petition dismissed.