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Criminal Revision Application No. 40 of 1984, decided on 16th December, 1985.

‑‑Ss. 423, 410 & 439‑‑Appeal heard without relevant record of Trial Court‑‑Judgment passed by Appellate Court, held, was illegal‑ Conviction and sentence set aside‑‑No possibility ‑of ‑reconstruction of record of case‑‑Case remanded for retrial.‑‑[Judgment].

Doulat v. The State 1978 P Cr. L J 765 ref.

Ahmed Khan Barakzai for Petitioners.

Kaim Ali Siddiqui for the State.

Date of hearing: 16th December, 1985.

Briefly stated, the facts of the case are, that the applicants alongwith two others were tried by the learned Civil Judge and F.C.M., Johi for allegedly committing an offence under section 452, P.P.C. and sentenced to suffer R.I. for six months and fine of Rs.500 in default further R.I. for three months. The case of the prosecution against them was, that the said persons after arming themselves with a Lathi and a hatchet had entered the house of complainant Haji Wali Muhammad with intention to recover a lease deed from him over which some dispute existed between the parties.

After their conviction as aforesaid, the applicants and the co -accused filed appeal before the Court of Session which was heard by the learned IInd Additional Sessions Judge, Dadu and disposed of vide Judgment, dated 17‑9‑1984, maintaining both the conviction and the sentence awarded to the said persons.

The short point now urged by the learned counsel for the applicants is, that the appeal filed by the applicants was disposed of by the Sessions Court without referring to the record and proceedings of the trial Court which is not warranted by law and is illegal. The learned counsel, in this respect, has invited my attention to the observations made by the learned Additional Sessions Judge, at page 2 of the impugned judgment which clearly support his contention that the appeal was heard and disposed of without any reference to the record and proceedings of the trial Court. There, according to the observations made by the learned Additional Sessions Judge, the record of the trial Court got burnt during an attack on the Sessions Court premises by an unruly mob during the pendency of hearing of the case by the Sessions Court. The case was, therefore, decided by him without any reference to such record.

The relevant provisions which have been quoted in this respect by the learned counsel, are contained in subsection (1) of section 423 of the Cr.P.C. which provides:‑‑

"423.‑ ‑ (1) The Appellate Court shall then send for the record of the case, if such record is not already in Court. After perusing such record, and hearing the appellant or his pleader if he appears, and in case of an appeal under section 411‑A, subsection (2) or section 417, the accused, if he appears, the Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may‑‑

(a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made or that the accused be retried or (sent for trial to the Court of Session or the High Court), as the case may be, or find him guilty and pass sentence on him according to

(b) in an appeal from a conviction, (1) reverse the finding and sentence, and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate to such appellate Court or sent for trial or (2) alter the finding, maintaining the sentence, or, with or without altering the finding, reduce the sentence, or, (3) with or without such reduction and with or without altering the finding alter the nature of the sentence, but, subject to the provision of section 106, subsection (3), not so as to enhance the same;

(c) in an appeal from any other order, alter or reverse such order;

(d) make any amendment or any consequential or incidental order that may be just and proper".

Mr. Ahmed Khan Barakzai, therefore, has contended that the learned Additional Sessions Judge has proceeded in illegal manner as at the time of hearing of the appeal the record of the cases was not perused by slim as required by the abovesaid provisions of law. The learned counsel has further pointed out that while hearing the appeal, the learned Additional Sessions Judge, only had photostat copy of the judgment of the trial Court before him after perusal of which the impugned judgment was passed. Reliance in this respect has been placed on Doulat v. The State 1978 P Cr. L J 765. In that case, a similar situation had arisen as an appeal was filed before the High Court of Lahore without the record of the trial Court which had been burnt in transit on way to the High Court. Efforts were made for re‑construction of the record which also ended in failure. Under such circumstances the High Court set aside the conviction and the sentence passed against the accused in that case and remanded the case to the Sessions Court for retrial.

In this case also the observations made by the learned Additional Sessions Judge, at page 2 of the impugned judgment show that the record of the case had got destroyed and lost during an attack on the Sessions Court premises by an unruly mob. Such position has not been denied by the learned State Counsel.

Since admittedly, the appeal has been heard without the relevant record of the trial Court, the judgment passed by the appellate Court, is illegal without any doubt. Reference in this respect may once again be made to Doulat v. The State, the case just referred to by me, wherein it has been observed that the appeal is a vested right of a convict and in absence of the record it is not possible to dispose of the appeal on merits.

Under these circumstances, as both Mr. Barakzai and Mr. Kaim Ali Siddiqui, the learned State Counsel, have stated that there is no possibility of reconstruction of the trial Court record, I have no other option but to set aside the conviction and the sentence of the appellant and remand the case for re‑trial by the Magistrate.

M.Y.H./B‑8/K Case remanded.

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