EJAZ HUSSAIN Versus SAEED AHMAD BUTT

ORDER

ASLAM RIAZ HUSSAIN, J.‑ The two petitioners who were under‑trial prisoners in a murder case, seek leave to appeal against the order of the learned Acting Chief Justice of the High Court of Baluchistan, dated 17‑8‑1983.

2. Shorn of unnecessary details the facts giving rise to the petition are briefly, that a case under section, 302/34, P. P. C. was registered against Ejaz Hussain and Afzal Hussain petitioners herein) on an F. I. R. dated 19‑8‑1974, lodged by Saeed Ahmad Butt respondent. The case was finally sent up for trial before Mr. Muhammad Aslam Sessions Judge, Quetta, who framed separate charges against each of the two accused under the above‑mentioned sections and the trial was commenced. Out of 13 witnesses sought to be produced by the prosecution only two had been examined when the learned Sessions Judge was transferred and was succeeded by Ma Muhammad Awais Murtaza. The petitioners' counsel moved an applica tion on 15‑8‑1982, to the effect that the accused‑petitioners bad engaged a new counsel, therefore, the two witnesses already examined should be recalled and their testimony recorded afresh. . The learned Sessions Judge allowed this application on 4‑7‑1983 and observed that, in the interest of justice and to give a fair chance to the accused, charges be framed jointly against both the accused and evidence be recorded afresh of the witnesses already examined.

Feeling aggrieved the complainant challenged this order before the High Court of Baluchistan through a criminal revision which was accepted vide the impugned judgment and the order directing the recall and re‑examination of the above‑mentioned two witnesses was set aside.

Hence the present petition.

3. The learned counsel for the petitioners did not object to framing of the charges against the two accused separately, as he felt that no prejudice had been caused to accused thereby. But he vehemently urged that order of Mr. Awais Murtaza, learned Sessions Judge, Quetta, dated 4‑7‑1983, had been passed in the interest of justice and should not have been set aside by the High Court. He argued that it was necessary for the learned trial Judge to re‑examine the witnesses so that he could personally watch the demeanor of .the witnesses so as to be able to assess their testimony correctly.

4. We have carefully considered the above‑noted contention but are not persuaded to agree with it. According to section 350, Cr.P. C. as it stood originally only a Magistrate was empowered to act on the evidence recorded by his predecessor. But after the amendment of the said section by Ordinance VIII of 1980, a Sessions Judge/Additional Sessions Judge, may order re‑examination of the witnesses whose testimony has already been recorded and recommence the trial, but it is now also permissible for him to act on the evidence partly or wholly recorded by his predecessor and base his judgment thereon. See Prof. Muhammad Hanif Tahir v. The State (PLD 1981 S C 106).

It is, however, provided that if the High Court is of the opinion that the accused have been materially prejudiced thereby, it may order a new trial or direct that some of the witnesses be examined afresh.

5. In the present case, the High Court after considering all the relevant factors, including the plea that a counsel had been engaged by the accused petitioners, did not form the opinion that refusal to allow the re‑examination of the two witnesses would materially prejudice them (i.e. the accused/ petitioners). After hearing the petitioners' counsel and going through the impugned judgment, we are inclined to agree with the view taken by the learned Judge in Chamber.

We do not, therefore, consider it a fit case for grant of leave. The petition is consequently dismissed.

S. Q. Petition dismissed.