PROF. MUHAMMAD HANIF TAHIR vs The STATE

ORDER

MUSHTAQ HUSSAIN, J. -Muhammad Hanif Tahir is one of the accused in a case in which F.I.R. No. 253/77 vas registered at Police Station, Pattoki, District Kasur on 2-11-77. The case was assigned to Mr. Mebr Ghulam Rasool, Sessions Judge, Kasur, before whom a supplementary challan was filed on 30-4-1980. Meanwhile Mr. Islam Bhatti tool: over as the Sessions Judge and recorded the entire prosecution evidence in the supplementary challan. The prosecution evidence was closed on 25- 10-80. Meanwhile Islam Bhatti himself was transferred w.e.f 3-11-1980 and Sh. Bashir Ahmad succeeded him. He has not recorded any evidence in the case under sec--petition 302/307, P.P.C.

2. Objection was taken in the shape of an application under sec--petition 561-A, Cr. P.C. To the Lahore High Court to the case being proceeded with by Sh. Bashir Ahmed from the stage where it was left by Mehr Ghulam Rasool and Muhammad Islam Bbatti. The reason given was that Mehr Ghulam Rasool is not the predecessor of Sh. Bashir Ahmed and the latter can, therefore, not take up the thread from where he left it. The High Court did not go into this submission on the ground that Mr. Islam Bhatti has been transferred and, therefore, if he were to hear the case its hearing would be prolonged. Hence this petition for special leave to appeal.

3. Learned counsel bases his submission upon the amendment in section 35 of the Criminal Procedure Code by the Criminal Procedure Code (Second Amendment) Ordinance No. VIII of 1980.

He submits that the principle of law is that the judicial officer by whom evidence has been recorded and who has thus seen the demeanour of the witnesses is the only person capable of valuing the evidence correctly and disposing of the case. There is no principle,, of law that a person who has taken down the evidence alone is competent to hear the case. Anyway, the provisions in section 350 of the Criminal Pro--cedure Code are to the contrary. In any case if it were to be assumed for the sake of argument that there is such a principle, the same has teen revoked by permitting the successor, who has not taken down the evidence, to proceed with the case without recording fresh evidence. Once it has been so revoke it makes none the difference whether the immediate successor or the successor of the immediate successor howlowsoever disposes of that case. He further submits that by this amendment the successor of the officer who has recorded the evidence has been given the jurisdiction to take up the thread from where his predecessor left it.

He asserts that "predecessor" and "successor" are to include only the immediate predecessor and the immediate successor and not anybody else. He submits, therefore, that Sh. Bashir Ahmed cannot hear the case from the stage where it was left by Islam Bhatti or Mehr Ghulam Rasool because under the amended section 350, Cr. P. C. Although Muhammad Islam Bhatti was the successor of Mehr Ghulam Rasool who was his predecessor but Sh. Bashir Ahmed cannot by any stretch of the language be included in the category of an immediate successor. To uphold this submission we would have to read section 350 of the Criminal Procedure Code as if the word "immediate" occurred both before the word "successor" as well as before "pre--decessor". It is not a case of cassus omissus and we, therefore, cannot insert this word into the section. Even otherwise under section 13 of the General Clauses Act the "singular" includes the "plural". The word "successor" therefore would be read as "successors" wherever necessary and the successor after successor of an officer who has recorded the evidence would thus have the jurisdiction to start the case from the stage where the predecessor of the predecessor left it.

6. There is no merit in this petition which is dismissed and leave to appeal is refused.