MUHAMMAD ASLAM Versus STATE

This appeal by Muhammad Aslam son of Mian Khan, caste Qasab, aged 26 years, butcher by profession, resident of Basti Piracha, Depalpur, District Okara, is directed against the judgment of the learned Magistrate, invested with powers under section 30 of the Code of Criminal Procedure, Depalpur, dated the 26th October, 1992, whereby the appellant was convicted and sentenced as follows: ‑‑

(a) Under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979 (President's Order No.4 of 1979), for selling a gram of heroin tc 2 years' rigorous imprisonment, 5 stripes of whipping and a fine of Rs.5,000.00, failure to pay which was to entail sufferance of additions: rigorous imprisonment for 6 months; and

(b) under Article 4 of the Order for possessing 21 grams of heroin to 2 years' rigorous imprisonment, 5 stripes of whipping and a fine of Rs.5,000.00 and in default of payment thereof to further rigorous imprisonment for a year.

2. In view of the order proposed to be passed it may not be desirable to touch the merits of the case. The case in the first instance was tried by the learned Additional Sessions Judge, Okara, who received the bulk of the prosecution evidence. When the case came on transfer before the learned Magistrate he did not try it afresh rather he acted upon the evidence already given before the learned Additional Sessions Judge. The learned Magistrate being not a successor of the learned Additional Sessions Judge within the purview of section 350 of the Code of Criminal Procedure was not competent to act upon and utilize the evidence recorded by the learned Additional Sessions Judge. The learned Magistrate's action of using the evidence recorded by the learned Additional Sessions Judge amounted to illegality vitiating the trial as well as the judgment. The learned counsel for the parties are at one on the point that the impugned judgment is not sustainable and that the case ought to be tried afresh. The appeal is consequently accepted, the impugned judgment is set aside and the case is remanded to the Court of Mr. Habibur Rehman, Magistrate invested with powers under section 30 of the Code of Criminal Procedure, Depalpur, for trying it afresh and deciding it according to law. The appellant will appear before the aforesaid Court on the 28th April, 1993. He will during the trial of the case remain on bail on his furnishing security in the sum of Rs.10,000.00 with two sureties in the like amount each to the satisfaction of the learned trial Court.

N.H.Q./828/FSC Case remanded.