MUSHTAQ AHMAD Versus THE STATE

ORDER

The petitioner alongwith three ethers Has facing trial under sec tion 302/34. P.P.C. before Rao Iqbal Ahmad Khan, Additional Sessions Judge, Lahore, who was promoted and posted as Sessions Judge, Bahawalnagar, leaving the present case along with other cases as part heard. He left the charge on some date in the month of June, 1981. The learned Sessions Judge, Lahore vide orders dated the 28th June, 1981 entrusted the case to Syed Muhammad Rafiq Shah, Additional Sessions Judge, Lahore for further proceedings. The case had been earlier adjourned to 30th June, 1981 by Rao lqbal Ahmad Khan. In consequence of orders dated 28th June, 1981, the case came up for further trial before Syed Muhammad Rafiq Shah. An objection was taken on behalf of the accused that Syed Muhammad Rafiq Shah has no jurisdiction to try this case as the case has not been legally entrusted to him. Learned Additional Sessions Judge after recording the objections, sent the file to the learned Sessions Judge along with the application containing objections of the accused. The matter was put up before the learned Sessions Judge and after hearing the parties he passed the impugned order dated the 9th July, 1981. It will be of interest to mention here that till then no Additional Sessions Judge has been posted in place of Rao lqbal Ahmad Khan. Mr. Aqil Ahmad Khan, Additional Sessions Judge is stated to have been appointed in place of Rao lqbal Ahmad Khan vide notification dated the 8th August, 1981, about a month later.

2. As an important point of law had been raised which could effect such like other cases, it was thought proper to have the assistance of the learned Advocate-General. Mr. Tanvir Ahmad Khan, Asstt. Advocate -General has appeared on behalf of the State. I have heard the arguments of the learned counsel for the petitioner, the learned Assistant Advocate. General arid Mr. R. A. Awan, learned counsel for the complainant who appeared by himself as an interested party.

3. The main objection raised on behalf of the petitioner is that because of the relevant provisions of the Code of Criminal Procedure, if the trial is allowed to be proceeded with, by Syed Muhammad Rafiq Shah, Additional Sessions Judge, de novo trial of the case would be a legal necessity as according to the learned counsel for the petitioner. Syed Muhammad Rafiq Shah is not the successor of Rao Iqbal Ahmad Khan. It is urged that in consequence of this, not only the petitioner will suffer but the very purpose of amendment in section 350 of the Code of Criminal Procedure vide Second Amendment Ordinance No. VIII of 1980, dated the 11 th March, 1981 would become of no consequence.

4. The relevant provisions which can be referred to in this regard are sections 193 (2), 350 and 528 of the Code of Criminal Procedure. The provisions of section 528, Cr. P. C. will be of no use for the proposition i n this case. The powers vested in the Sessions Judge under that section pertain only to the case in which the trial has not started. According to the provisions of section 350, Cr. P. C., in the case of transfer of any Sessions Judge or the Magistrate, succeeding Sessions Judge or the Magistrate may act upon the evidence recorded by his predecessor or partly recorded by his predecessor and partly recorded by himself. Of course powers have also been given to the succeeding Court to re-examine the witnesses, recommence the enquiry or trial in certain conditions. The whole argument of the learned counsel for the petitioner revolves around the words, "succeeded by another Sessions Judge" in section 350 of the Code of Criminal Procedure.

6. The power for entrusting the cases or appeal to the Additional Sessions Judge is derived from the provisions of section 193 (2) of the Code of Criminal Procedure. It will he of interest to mention here that in whole of the Code of Criminal Procedure, no independent existence of the of the Additional Sessions Judge to act- as judicial officer in any case unless transferred or entrusted to him, exists. The natural corrolary therefore, will be that Additional Sessions Judges are appointed to cope with the work of the Sessions Division, and are placed at the disposal of the Sessions Judge who can by provisions of section 193 (2), Cr. P. C. distribute and entrust the work to them. Obviously the Additional Sessions Judge by virtue of posting orders does not derive powers for exercising jurisdiction or holding trial of any case merely by virtue of his posting in a District whether his appointment is afresh or he succeeds somebody on transfer. As the powers of the Additional Sessions Judge to hold trials and hear appeals and other matters do not flow from the order of his posting, he cannot take up any case by himself. The cases shall have to be entrusted to him by the Sessions Judge. The Sessions Judge, therefore, will always be in a position to redistribute the work whenever a situation arises and the entrustment of any of the cases from one Additional Sessions Judge to another will be deemed to mean that the Additional Sessions Judge to whom the case has been entrusted is "successor" of the one who was trying the case earlier. This power continues even after the amendment in section 350 of the Code of Criminal Procedure regarding cases which are under-trial and have been partly heard. Of course, the power of redistribution is not to be exercised by the Sessions Judge unless the Additional Sessions Judge holds a post and is not transferred or promoted or ceases to hold office in any other manner.

7. The above discussion leads to a conclusion that the word, succeed ing used in sections 350, Cr. P. C. does not only mean succeeding by a person who is posted on the transfer of some Additional Sessions Judge. In this particular case apart from the above conclusions, there is an other distinction also and that is that Mr. Aqil Ahmad Khan who was posted in place of Rao Iqbal Ahmad Khan, was posted by notification dated 8th August, 1981 when the order of entrustment of this case had been passed earlier by the Sessions Judge. In this context the problem is simple and straight in the sense that had Mr. Aqil Ahmad Khan not been posted, even objection could not have been raised. Such situations will certainly be arising where on the transfer or ceasing to hold office by some Additional Sessions Judge, nobody may be posted in his place. It cannot be thought for a moment that these situations would not be in the mind of the law-giver when the amendment was ordered in the provisions of section 350 of the Code of Criminal Procedure. In view of the above enunciation, I do not see any reason or justification to interfere with the order of the learned Sessions Judge dated the 28th June, 1981 or 9th July, 1981.

The petition is dismissed in limine. Petition dismissed.