P L D 1958 Dacca 549, (PLP)

RAHMAN, J.‑This Rule was issued at the instance of the accused‑petitioner who had been convicted under sections 457 and 380 of the Pakistan Penal Code by a. Magistrate of the 1st Class at Madaripur and sentenced to suffer rigorous imprisonment for one year on each count. The sentences were, however, to run concurrently.

2. The petitioner preferred an appeal against the aforesaid order of conviction before the Sessions Judge of Faridpur. This appeal was heard by the Additional Sessions Judge who set aside the conviction and sentence under section 380 of the Pakistan Penal Code but maintained the conviction under section 457 of the said Code and reduced the sentence to four months only.

3. It is against this order that the petitioner came up in revision to this Court and obtained this Rule on two grounds only, namely, (1) as to whether in view of the acquittal under section 380, the conviction, under section 457 of the Pakistan Penal Code was legally maintainable and (2) as to whether the judgment of the lower Appellate Court was in accordance with law inasmuch as the provisions of sections 367 and 424 of the Code of Criminal Procedure had not been complied with.

4. We have perused the judgment of the learned Additional Sessions Judge and we find that this judgment starts with a recital that the learned Judge had before him an appeal from an order of conviction of a Magistrate of the 1st Class and then goes on to say in respect of what that conviction was. After this, the points for consideration has been mentioned as being whether the order of the Magistrate should be upheld, if not, what other orders should be passed. In the finding portion, the learned Judge discusses with regard to the validity or legality of the sentences passed on both the counts. As regards the merits of the case, however, we find only one sentence to the following effect " Now coming to the merits of the case it appears from the evidence on record that a clear case has been made out by the prosecution against the accused and it has been proved beyond reasonable doubt that the accused entered in the ghar of the complainant by cutting a sind and thus he committed the offence under section 457, P. P. C., for house breaking ".

5. This, at best, is a statement of the conclusion and the conclusion alone of the learned Judge.

6. A perusal of the judgment does not disclose that the learned Judge either had the points for determination in the case in his mind or that he did apply his independent mind to the facts of the case or the evidence adduced in the case. It appears from the record that as many as ten witnesses were examined on behalf of the prosecution and two witnesses, at least, on behalf of the defence. Not a word is to be found in the judgment of the learned Additional Sessions Judge as to whether the defence adduced any evidence and as to why that evidence should not be accepted and the prosecution evidence preferred.

7. The learned Deputy Legal Remembrancer has neverthe less contended that because the learned Additional Sessions Judge has said that it appears from the evidence on record that a clear case had been made out, then it must be taken that he had perused the evidence and come to an independent conclusion of his own. In support of this contention, he has also relied on a decision of the Calcutta High Court in the case of Rahimuddin and another v. The Queen‑Empress (I L R 20 Cal. 353), where also the learned Judge had only stated :‑ " I have read through the evidence and heard the appellant's pleader and I think that the Deputy Magistrate was quite right to believe the evidence ". Their lordships held that that judgment indicated that the Sessions Judge had appreciated the points which the prosecution had to establish and that he had clearly in view the points for determination, namely, the credibility of the evidence of the witnesses for the prosecution, and he expressed his opinion on that point. On the other hand, the current of later decisions seems to us to clearly indicate that a final Court of Appeal on facts should, at least, give some indication in its judgment as to the application of its mind to the evidence from which at least the Court of revision would be in a position to judge whether there had or had not been a proper appreciation of the evidence and all the points falling to be decided in that case by the final Court of Appeal on facts. A mere statement of A the conclusion alone without the reasoning in support of that conclusion is fair neither to the accused, the appellant, nor , to this Court, for, thereby the accused is deprived of the opportunity of pointing out to this Court that the method of treatment of his case by the Court below was improper and this Court is also not in a position to say either one way or the other as to whether the Judge did or did not consider all the relevant points to be considered to the case.

8. We are thus of the opinion that the judgment before us is not a proper at all. This Court has had occasion to criticise even before this the appellate judgments Of some District Magistrates and Additional District Magis trates and to demand from them too a proper judgment in the terms of section 367 read with section 424 of the Code of Criminal Procedure. It is, therefore, not unreason able to expect at least from judicial officers of experience c that they, at any rate, would be fully conversant with the provision of law and the trend of the decisions of this Court and not write such perfunctory judgments.

9. This is not the first occasion on which we have been constrained to make such observations with regard to the judgments of this particular learned Additional Sessions Judge. We hope, as such, that the Court below will take due note of tile observations of this Court.

10. In these circumstances, we do not propose to say anything with regard to the arguments advanced in respect of the first ground of the petition, for, we are clear in our minds that this is not a proper judgment and that it must accordingly be set aside and the appeal sent for re‑hearing in accordance with law.

11. Since the learned Additional Sessions Judge is the only Additional Sessions Judge in the district and he has made up his mind with regard to this case, the appeal should be re‑heard by the Sessions Judge himself. The petitioner will continue to remain on the same bail during the pendency of the re‑hearing of the appeal.

12. Let the records be sent down immediately and the appeal be disposed of as expeditiously as possible. CHAKRABORTI, J.‑I agree. A. M. C. Retrial ordered.