GULISTAN TEXTILE MILLS LTD., BAHAWALPUR Versus MEMBER (CONSOLIDATION), BOARD OF REVENUE/CHIEF SETTLEMENT COMMISSIONER, PUNJAB,LAHORE
Through this petition filed under section 439, Cr.P.C. the order, dated 11-7-1996 passed by Mr. Muhammad Akhtar Khan, learned Additional Sessions Judge, Rawalpindi, has been assailed on the ground that he without application of his judicial mind as to whether in the facts and circumstances of the case, the law required the de novo trial in the instant case, acted mechanically on the statements of the learned counsel for the parties which tantamounts to failure of the Court to exercise its jurisdiction properly for having not taken a decision whether the de novo trial was permissible under the law or not.
2. Brief facts of the case are that the complainant filed an application under section 346/347, Cr.P.C. for transfer of the case to the learned Sessions Judge on the ground that the injured/Anjum Farooq Peracha was hit on his back bone by the bullet fired by the accused Wajahat Ikram accompanied by the other co-accused. Since the lower portion of the body of the injured was paralysed, therefore, the -case in hand, is a case of enhanced punishment, which a Court of Magistrate Section 30 is not competent to award. The learned Magistrate sent the matter to the Sessions Court and the same was taken up by the learned Additional Sessions Judge. The statements of the accused were recorded under section 342, Cr.P.C. During the course of arguments on the abovesaid application, learned counsel for the complainant submitted that if the accused demanded retrial of the case, he has no objection to it. The accused were asked as to whether they wanted retrial of the case. They replied that if the law permits the same, they claim de novo hearing of the case. Learned Additional Sessions Judge without going into the relevant provisions of law and considering the arguments of the learned counsel for the parties, disposed of the matter in a mechanical manner keeping in view the statement of the learned counsel for the parties vide impugned order.
3. Learned counsel for the petitioner contends that de novo trial in the present case is not permissible and the impugned order is liable to be set aside, under section 347, Cr.P.C. reads as under:--
"If in any trial before a Magistrate before signing Judgment, it appears to him at any stage of-the proceedings that the case is one which ought to be tried by the Court of Session or High Court, he shall send the case to the Court of Session or High Court, for trial. "
Similarly section 350, Cr.P.C., which was amended by the-Ordinance No.VII of 1980 provides as follow:---
"Whenever any Sessions Judge or Magistrate after having heard and recorded the whole or any part of the evidence in an inquiry or a trial ceases to exercise jurisdiction therein, and is succeeded by another Sessions Judge or Magistrate who has and who exercises such jurisdiction, the Sessions Judge or Magistrate so succeeding, may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself; or he may re-examiner the witnesses and recommence the inquiry or trial."
4. In support of his contention learned counsel for the petitioner has referred the following reported cases:--
(1) ??????? 1984 SCMR 1345,
(2) ?????? PLJ 1993 (Cr.C:) 177
(3) ??????? 1994 PCr.LJ 2482,
(4) ??????? PLD 1981 SC 106.
5. On the other hand, learned counsel for the respondents as well as learned counsel for the State supported the order passed by the learned Additional Sessions Judge. Learned counsel for the respondents has relied upon 1995 SCMR 1713.
6. Arguments of the learned counsel for the parties have been heard and record perused. In the judgment referred by the learned counsel for the petitioner Rehmat v. The State 1984 SCMR 1345 it was observed in para. 6 that:--
"The contention of the learned counsel for the appellant that the learned Sessions Judge could not have acted upon the evidence recorded by the Magistrate, under section 350, Cr.P.C., is not well-placed. Exceptions in that regard have been provided by subsection (2) of section 350, Cr.P.C., which read as under:--
'Nothing in this section applies to case in which proceedings have been stayed under section 346 (or in which proceedings have been submitted to a superior Magistrate under section 349'."
It was also held in the said judgment that:--
"The exception has been made in cases falling under sections 346. and 349, Cr.P.C. and section 347, Cr.P.C. is not included in the exception, which is enough to rebut the contention regarding the objection to act upon the findings of the Magistrate. "
7. Similarly in Muhammad Aslam v. The State PLJ 1993 Cr.C. (Quetta)177 it was held that:--
"Progressive change of law displays leaning towards validating, ratifying and protecting proceedings earlier drawn by a proper forum. Main object of legislative change tends to eliminate technicalities and promote speedy disposal. No prejudice has been caused to appellants on account of Special Judge's failure to hold de novo trial."
It was also held that:--
"Evidence recorded by the Sessions Judge, has rightly been considered by the Special Judge. "
The objection of the appellant in that case was repelled.
8. The third judgment referred by the learned counsel for the petitioner and reported as Haji Sakhi Dost Jan and another v. P.N.C.B., through Regional Director, Balochistan at Quetta and others 1994 PCr.LJ 2482, wherein in a case under Articles 5, 6 and 7 of the Prohibition (Enforcement of Hadd) Order 4 of 1979, it was held that:--
"The accused persons were initially challaned in the Court of Session, while the cases were pending before the Court of Session, Federal Government transferred the cases to Special Court for Speedy Trials. Evidence in the cases were concluded by the Special Court and matter was fixed for arguments when the Federal Government transferred all the cases back to Court of Session. Accused persons, on transfer of cases back to Court of Session moved an application requesting for de novo trial on the ground that Special Court had no jurisdiction to record the evidence and the proceedings were coram non judice."
The contention of the accused was repelled holding that:--
"The proceedings recorded by the Special Court for Speedy Trials did not suffer from any legal defect or lack of jurisdiction. The Sessions Court being transferee Court had the discretion to proceed with the matter on existing record."
It was also observed that:--
"The witnesses having exhaustively been cross-examined before the Special Court, no prejudice appeared to have been caused to the accused persons with regard to evidence recorded by the Special Court for Speedy Trials."
The application for de novo trial filed by the accused persons was rejected by the Court in that case.
9. In the fourth judgment referred by the learned counsel for the petitioner, reported as Professor Muhammad Hanif Tahir v. The State PLD 1981 SC 106 it was held as under:--
"No principle of law enjoins hearing of a case only by such Court as has taken down evidence. Even if any principle existed to contrary same taken away by amendment in section 350, Cr.P.C. Successor Court even though not having taken down evidence, held, now permitted to proceed with case without recording fresh evidence and it makes no difference whether immediate successor or successor of immediate successor howlowsoever disposes of cases."
It was also held in the said judgment that:--
"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 35 of the Criminal Procedure Code are to the contrary. In any case if it were to be assumed for the sake of arguments that there is such a principle, the same has been 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 revoked it makes none the difference whether the immediate successor or the successor of the immediate successor howlowsoever disposes of that case."
With the abovesaid observations the petition was dismissed in that case
10. In support of his contentions learned counsel for respondents Nos. l and 2 has referred the judgment reported as Zahid Hussain Shah and others v. Ghulam Murtaza Asghar and others 1995 SCMR 1713, wherein it was held that:--
"High Court had no jurisdiction to interfere with the discretion exercised by the Trial Court to proceed with the case afresh and not on the evidence already recorded by the defunct Special Court for Special Trial. The counsel for the accused (petitioners) had conceded before the High Court for disposal of the case on the evidence already recorded by the Special Court and there was no decision by the High Court regarding the said legal aspect of the case. The High Court's order directing the trial Court to conclude the trial on the basis of the material already brought on the file, therefore, did not call for any interference and the leave to appeal was refused accordingly."
11. This judgment does not help the respondents in any manner and in fact it indirectly supports the contentions of the learned counsel for the petitioner. Particularly the observation/direction of the High Court that the case be decided on the basis of the material already existed on the tile.
12. The provision of section 347, Cr.P.C. read with section 350, Cr.P.C. and examined in the context of the judgments referred to above, makes it crystal clear that the impugned order passed by the learned Additional Sessions Judge, is illegal. It was the bounden duty of the learned Additional Sessions Judge to have examined the validity of the request for de novo trial made by the learned counsel for the defence. Although the same was not seriously opposed by the learned counsel for the complainant but at the same title it was duty of the learned Additional Sessions Judge to give positive finding whether the de novo trial was permissible under the law or in the interest of justice. Learned Additional Sessions Judge has erroneously ordered the de novo trial of the case without considering the legal provisions and the judgments referred to above on the subject.
13. It is pertinent to note here that the trial was conducted by the Magistrate, where the learned defence counsel has full opportunity to cross?-examine all the prosecution witnesses. Learned counsel for the respondents Nos. l and 2 himself was their counsel in the trial Court also and he has not been able to show that any prejudice shall be caused to the accused, in case the evidence already recorded by the Magistrate is considered for remaining trial.) The evidence recorded by the learned Magistrate is valid and will be deemed to be a part of the trial to be further conducted by the learned Additional Sessions Judge.
14. At this stage, it can safely be said that the intention of the law-maker, gathered from the sections 347 and 350, Cr.P.C., clearly indicate that the Court can proceed with the trial of the case on the existing record without holding de novo trial. The impugned order has been passed by not applying judicial mind and keeping in view the legal requirements of law. In these circumstances, the revision petition is accepted and the impugned order is set aside. The learned Additional Sessions Judge, is directed to proceed with the trial from the stage, the Magistrate has sent it to him.
N.H.Q./A-98/L ?????????????????????????????????????????????????????????????????????? Revision petition accepted,