' KHAWAJA NAVEED AHMED, J.---This appeal has been filed by Mr. Asif Ali Abdul Razak Soomro, Advocate on behalf of accused Majeed son of Nihal Khan Katoher, and Lahno alias Loung son of Nihal Khan Katoher who have been convicted in case F.I.R. No,23 of 2003 under sections 302, 34, P.P.C. Police Station, Dodapur District, Jacobabad and sentenced them to undergo imprisonment for life and to pay compensation of Rs,100,000 each under section 544-A, Cr.P.C. To the legal heirs of deceased Allah Rakhio. The benefit of section 382-B, Cr.P.C. Was given to the accused persons.
This appeal had come up for hearing on 6-2-2008 and this Court was pleased to admit the appeal and had ordered preparation of paper book in case No,207 of 2003 (244 of 2005). The High Court had received letter dated 9-2-2008 from the Court of 1st Additional Sessions Judge, Jacobabad in which Mr. Suresh Kumar, the 1st Additional Sessions Judge Jacobabad had submitted that all the pending cases as well as record and proceedings of disposed of cases has been burnt or taken away by the mob on 27-12-2007 and disturbances which had occurred on account of assassination of Mohtarma Benazir Bhuto. It is further stated in the letter that nothing has been left urburnt/unlooted in the office of the learned 1st Additional Sessions Judge, Jacobabad. Under the circumstances, the paper book cannot be prepared. The copies of the evidence recorded by the trial Court during the trial are not available. The record cannot be reconstructed and it is not possible to decide this appeal on merits.
2. The learned counsel for the appellants has drawn the attention of the Court towards the case reported in AIR (30) Madras Page 391(2). In re: Sevugaperumal and others. In this case the record was destroyed in fire. The Court has observed as under:-- ' "....On 17th August the Court of the Assistant Sessions Judge at Devakotai was destroyed by fire and it has been reported that the records of this case were destroyed in that fire. No copies of the records are available and since the provisions of S.324(1), Criminal P.C. Are mandatory, Mr. Somasundaram suggests that the only course possible is to order a re-trial. His contention is that it is obligatory for the Court to obtain and examine the record at the time of hearing and in support of his suggestion he relies on the decision in 1889 A. W.N.
55. The learned Public Prosecutor concedes that no other course is possible under the circumstances and in the result the convictions are set aside and the case is ordered to be retried by the Sessions Judge of Ramnad. Mr. Somasundaram has informed the Court that he has copies of the committal proceedings and these may prove to be of great help if these records also have perished."
3. Other case-law replied upon by the learned counsel is PLD 1961 (WP) Lah.
45. In this case at the appeal stage the record was stolen from the Court of the Magistrate on the night between 23 and 24 of September, 1959. The District Magistrate, Gujrat was then asked to get the record reconstructed from all available sources and to submit the same to Court. The District Magistrate has shown his, inability to reconstruct the record as counsel for the parties had no records with them and were helpless. In reported case the counsel for the appellant in the circumstances had asked for acquittal. The learned Court while deciding the issue has observed as under:-- "5. In the absence of any express provision of law on the subject, I am of the view that the case is governed by section 561-A of the Code of Criminal Procedure, which reads as follows:-- ' "Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
' With a view to secure the ends of justice I think that in the circumstances of the case, this Court will be justified in exercising its inherent jurisdiction in ordering a retrial. I am conscious of the fact that the accused will have to undergo expense and inconvenience of a retrial, but this matter can be taken into consideration by the Magistrate in imposing the sentence in case the accused is found guilty of the offence.
6. For the reasons stated above, I set aside the conviction and sentence of the appellant and remit the case to the Court of the Magistrate with the direction that the accused be retried in accordance with law. In the meantime the appellant is allowed bail to the satisfaction of the Magistrate concerned till the disposal of the case. If on retrial the Magistrate holds him guilty of the offence, then in that case the Magistrate while awarding the sentence, should also be taken into consideration the period of imprisonment already undergone by him."
4. In the present case the situation is almost similar. The learned State counsel concedes to the request of the learned counsel for appellants that conviction and sentence may be set aside and case be remanded back to the trial Court.
5. I have heard both the learned counsel, have perused the memo. Of appeal as well as judgment and the case-law produced by the learned counsel for appellant. In the circumstances, I am of the opinion that the only course left is to set aside the conviction and sentence and remand back the case to the trial Court for retrial. I hereby set aside the conviction and sentence of the appellants and remand back the case to the trial Court for proceeding afresh. The appellants are in custody since 2003. It is not known as to how long it will take for the trial Court to reconstruct the record. I, therefore, set aside the conviction and sentence of the appellants and remand back the case to the trial Court for retrial. Since appellants are in custody since 2003 I, therefore, order release of the appellants on bail upon their furnishing surety in the sum of Rs,100,000 each of P.R. Bond in the like amount to the satisfaction of the trial Court. Criminal Appeal No,89 of 2007 is disposed of.