GHULAM FARID Versus MUHAMMAD YOUNAS

1. The appellant Guloo alias Gul Hassan son of Darya Khan, Janu son of Miandad, Ali Bux son of Punhoon and Mahram son of Aucher were tried by the learned IInd Additional Sessions Judge, Khairpur who by his judgment, dated 30-4-1983 convicted each of the appellants under section 326, P.P.C. read with section 34, P.P.C. and sentenced each of them to suffer R.I. for four years and fine of Rs.2,000 or in default in payment of fine R.I. for one year more. The appellants have challenged their said conviction and sentence under this appeal.

2. I have heard Mr. Mushtaq Hussain Shah learned counsel for the appellants and Mr. Abdul Sattar Chohan learned counsel for the State. A legal point has been raised by the learned counsel for the appellants and, therefore, it will not be necessary to refer to the evidence available on record as such the evidence is not being referred.

3. The learned counsel for the appellants has submitted that initially the four appellants were being tried by the learned Sub-Divisional Magistrate Kotdiji who had framed the charge and also recorded their statements. At that time of judgment, the learned S.D.M. came to the conclusion that since the offence under section 326/34, P.P.C. entails a punishment for imprisonment for life or an imprisonment of either description for 10 years and fine, but since the learned S.D.M. was not competent to impose that kind of punishment, he forwarded the entire case alongwith R&P to the Sessions Court to impose a befitting sentence on the accused so as to meet the ends of justice. The said order was passed by the learned S.D.M. on 31-7-1979. Thereafter, the record shows that for some time the case was pending before the learned Sessions Judge, Khairpur and on 9-10-1980 it was forwarded to the Court of IInd Additional Sessions Judge, Khairpur. Learned counsel for the appellant submits that the witnesses who had already been examined and cross examination by the S.D.M. were recalled by the learned IInd Additional Sessions Judge for further cross-examination only. The learned counsel states that under section 350, Cr.P.C. whenever any Sessions Judge or Magistrate after having heard and recorded the whole or any part of evidence in an enquiry or trial, ceases to exercise jurisdiction and is succeeded by another Sessions Judge or Magistrate, that successor of such Magistrate or Sessions Judge may act on the evidence so recorded by his predecessor. In other words the learned counsel submits that when the case was transferred by the learned S.D.M. Kotdiji to the Sessions Court, S.D.M. was not the predecessor of the Additional Sessions Judge, therefore, the learned IInd\Additional Sessions Judge, Khairpur was not competent to act on the same evidence: The learned counsel for the State concedes to this position.

4. I have carefully considered the point raised by the learned counsel and it is quite evident that the entire evidence was recorded in this case by the learned S.D.M. who had forwarded the case to the learned Sessions Judge but the learned IInd Additional Sessions Judge is not a successor of S.D.M. and likewise S.D.M. is not predecessor of IInd Additional Sessions Judge and, therefore, the learned IInd Additional Sessions Judge could not act on the evidence recorded by the learned S.D.M. In these circumstances, the learned IInd Additional Sessions Judge ought to have held the trial afresh and should have also recorded the evidence fresh.

5. In the present case the learned IInd Additional Sessions Judge relied upon the examination-in-chief of all the witnesses recorded by the learned S.D.M. but he recalled those very witnesses and allowed further cross examination with the result he relied on the evidence which was not recorded by him or by his predecessor. S.D.M., by any stretch of imagination cannot be predecessor of Additional Sessions Judge and, therefore, the impugned judgment is not sustainable in the eyes of law. Accordingly the impugned judgment is hereby set aside. However, the question arises whether the matter should be remanded for retrial or not. To answer this question several factors are kept in view. Firstly the incident took place in 1973, and the case was pending trial before the Court of Magistrate up till 1979. By order, dated 31-7-1979 the learned S.D.M. Kotdiji had forwarded the case to the Court of learned Sessions Judge, Khairpur and the impugned judgment was passed by the learned IInd Additional Sessions Judge on 30-4-1983. Thereafter, the appeal was filed in this Court on 9-5-1983 and the same is being disposed of today i.e. 19-8-1993. It will thus appear that the appellants have been facing the agony of the trial for the last about 20 years. One can only imagine the expenses incurred by the appellants firstly before the Court of Magistrate, then before the Sessions Court and finally before this Court. Taking into consideration all these circumstances, I am of the view that the case is not fit for directing retrial of the appellants. In the circumstances retrial is hereby refused. Since the impugned judgment has been set aside, accordingly the bail bonds of the appellants are discharged and the appellants are also acquitted.

6. N.H.Q./G-345/K . Appeal allowed.