Law: Criminal Procedure Code (V of 1898)

Section: 423(b),435,439

Re-trial-Ordered by appellate Court-Magistrate asking accused whether they wanted to be re-tried and on their declining de novo trial convicted them on evidence recorded in Previous trial-Held, proceedings were not a retrial-Convictions set aside and retrial ordered according to law-Criminal Procedure Code (V of 1898), S. 423 (b). Under section 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 convicted the accused. Held there was no retrial of the petitioners as directed by the Sessions judge in his order dated 19th December 1952. Convictions set aside and retrial ordered according to law. JUDGMENT 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-state­ments" 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…

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