P L D 1962 Dacca 61 (PLP)

MURSHED, J.‑This is an appeal by one Basanta Kumar Choudhury who has been tried by Mr. A. H. Choudhury, Special Judge, Sylhet, on charges under sections 408 and 477‑A of the Pakistan Penal Code.

2. Prosecution case, very briefly speaking, is as follows: - Appellant was an employee attached to the Bhatipara Wards Estate and he worked in the said estate till the end of 1952. During this period he was put in charge of realising rents of fishery mahals. A lease of one such fishery was taken by P. W. 2 Feroze Bakht Choudhury who is, in fact, the complainant in this case. It is alleged that the said Feroze Bakht Choudhury had paid a sum of Rs. 500 to Basanta Kumar Choudhury (appellant) on a day between the 10th and 12th of April 1951, in respect of rents of the fishery which was taken on lease by Feroze Bakht Choudhury. Appellant Basanta Kumar Choudhury granted a receipt for the same after having received the money. There after a notice of demand for arrear of rent was sent to Feroze Bakht Choudhury from the aforesaid Bhatipara Wards Estate Office demanding a certain amount of money. As the amount demanded exceeded a sum of money which could have been due to the estated Feroze Bakht Choudhury went to the office of the estate and sought permission of the Manager to look into the accounts in respect of the rents due from him. He discovered various interpolations in the counter‑foils as well as in the books of account, maintained in the office of the said estate. He discovered that a sum of Rs. 300 only was credited to his account in the relevant papers, whereas the amount that he had actually paid to the appellant was Rs.

500. He, therefore, Immediately filed a petition to the Manager on the same day, namely, on the 26th of February 1953, stating all the matters that he had discovered. He claimed back a sum of Rs. 200, which, although paid by him, was not credited to his account. Thereafter the case had a very chequered career, and it seems that on the 7th of September 1953, prosecution witnesses were examined by the Magistrate who tried the appellant; they were not, however, cross‑examined on behalf of the appellant. It appears that on the 28th of September 1953, charges were framed against the appellant, as stated above. On the 21st of January 1954, the witnesses were cross‑examined and one more prosecution witness was examined and the accused was also examined under section 342 of the Code of Criminal Procedure. The case was adjourned to the 27th of February 1954. However, on the 27th of February 1954, the Magistrate passed the following order: - "Under the new Ordinance this case is triable by Special Judge. The case is therefore, adjourned sine die. Accused to appear before Court on date. The original document to be filed to the Ward Estate as no copy has been supplied by defence." Thereafter there is a gap of more than two years and we do not know what happened to this case. We, however, find that on the 4th of April 1955, a Special Judge of Sylhet passed the following order: - "Received record. Register. Put up for orders." This has been again followed by another year of inactivity and it seems that the case was transferred to another Special Judge who, on 12th of February 1957, made the following order "Received by transfer. Register. Put upon a subsequent date for orders."

3. Nothing was done for about nine months thereafter and it again transpires that the case was transferred to another Special Judge on the 11th of November 1958, and the following order was passed on that date: - "Withdrawn and transferred to the Court of Special Judge, Chittagong Division for disposal." It seems that the trial before the present Special Judge, who tried the appellant, commenced on the 21st of October 1959, and it is significant that the learned Special Judge passed an order in the following terms: - "Accused present in Court. Fix 14‑12‑59, for trial. Accd. to submit list of D. Ws. Summon all the P. Ws. and D. Ws. for the 1st day. Prosecu tion to supply the copies of the statements of the witnesses recorded under section 161, Cr. P. C. at least 7 days before the date of trial. Inform D. S. P. D. A. B. for compliance. Write to D. C. Sylhet for appointment of a P. P. to conduct the prosecution. Accd. as before." Thereafter on the 14th of December 1959, another order was passed to the following effect "Accused present in Court and put in the dock. Defence puts in a petition praying for de novo trial or in the alternative, for examining a D. W., as stated therein. Heard. It appears that all the P. Ws. were examined and cross‑examined and the accused was also examined under section 342, Cr. P. C., before the case was transferred to this Court. I do not think there is any necessity of a de novo trial in this case and the prayer for de novo trial is refused. The trial will proceed from the stage it has already reached as provided under section 8 of the Pakistan Criminal Law Amendment Act (Act XL of 1958). However the defence is permitted to adduce evidence and examine defence witness as prayed for." On the same day the learned Special Judge remanded the appellant to jail custody on a cancellation of the bail bond furnished by him. It will thus be seen that the trial of the appellant followed in the manner which has been set out above.

4. The defence of the appellant was a plea of not guilty, and in view of the order that we propose to make in this case, we need not further discuss this appeal on its merits.

5. Learned Special Judge convicted the appellant under the aforesaid sections and sentenced him to suffer rigorous imprison ment for a period of one year and six months and also to pay a fine of Rs. 200 in default, to suffer rigorous imprisonment for a further period of six months, under section 408 of the Pakistan Penal Code and also to suffer rigorous imprisonment for a period of one year under section 477‑A of the said Code. It was directed that the sentences would run concurrently.

6. This appeal is directed against the convictions of the appellant and the sentences passed on him, as stated above.

7. At the hearing of this appeal Mr. Nasiruddin Choudhury appeared before us for the appellant on behalf of Mr. Ashrafud din Choudhury. We were taken through the judgment passed by the learned Special Judge and while we had heard the appeal on its merits for a while, our attention was drawn to one of the additional grounds of appeal, which was filed in this Court by its leave. It was contended on behalf of the appellant that the conviction of the appellant and the sentences passed on him are liable to be set aside because the learned Special Judge has based such conviction upon evidence which was not recorded by a Court of competent jurisdiction.

8. On this point Mr. Kamaluddin Hossain, who has appeared on behalf of the State, has candidly stated before us that he could not support the conviction of the appellant when its legality was challenged on the ground stated above, although he was otherwise prepared to justify the conviction on its merits. We, therefore, proceed to examine this contention, which has now been advanced on behalf of the appellant.

9. It transpires that while the Magistrate before whom the appellant was put on trial had examined four witnesses, the Criminal Law Amendment Act, 1953 (Act XXXVII of 1953) came into immediate operation on the 17th of November 1953. By virtue of a re‑enacted section, namely, section 4 of the said Criminal Law Amendment Act it was provided in subsection (4) thereof as follows: - " All cases relating to any offences mentioned in the Second Schedule and ending in any Court other than the Court of a Special Judge immediately before the commencement of Criminal Law Amendment Act, 1953, shall, on such commencement, stand transferred to the Special Judge having jurisdiction over each cases. We may mention that clause (a) of the Second Schedule specifies offences punishable under section 408 as well as under section 477‑A of the Pakistan Penal Code. The result of the aforesaid enactment was that on the said date namely, the 17th of November 1953, the case against the appellant pending before the said Magistrate stood automatically transferred to the Special Judge having jurisdiction to try such cases. However, the trial of the appellant continued in the Court of the said Magistrate possibly because he was not aware of the provisions of the aforesaid enactment Some further witnesses were examined by the Magistrate and all the witnesses were cross‑examined on behalf of the appellant in the Court of the said Magistrate even after the commencement of the Criminal Law Amendment Act, 1953, on the 17th of November 1953. It is, therefore, patent that the recording of the evidence by the Magistrate as well as the cross‑examination on behalf of the appellant, which was recorded by the said Magistrate were by a Court, which was no longer competent to try the appellant. In these circumstances, the appellant, as we have already noted above, prayed for a de novo trial with fresh examination of the witnesses before the Special Judge. Learned Special Judge however, did not think fit to grant the aforesaid prayer and passed an order on the 14th of December 1959, which we have already quoted.

10. Learned Special Judge has relied on section 8 of the Pakistan Criminal Law Amendment Act (Act XL of 1958) which reads as follows: - "A Special Judge, unless he otherwise decides, shall not be bound to recall or rehear any witness, whose evidence has already been recorded, or to re‑open proceedings already held, but may act on the evidence already produced or recorded and continue the trial from the stage which the case has reached."

11. There is no escape from the conclusion that the convic tion of the appellant has been based on evidence which has been substantially recorded by a Magistrate who ceased to have any jurisdiction to try the appellant on and after the 17th of November 1953. The position, therefore, comes to this that a considerable portion of the evidence upon which the Special Judge has relied was not recorded by a competent Magistrates. The learned Special Judge lost sight of the fact that the evidence on which he could rely In accordance with the provisions of section 8 of the Pakistan Criminal Law Amendment Act, 1958, must be the evidence as recorded by a Court competent to try the accused when such evidence was recorded, The evidence referred to in section 8 as quoted above must, of necessity mean evidence properly recorded by a Court competent to record such evidence. To hold otherwise would lead to the absurd result that the Special Judge would be competent to act on evidence recorded by anybody irrespective of the consideration whether it is recorded by a Court or a Magistrate or by any other individual, or whether it is recorded in an informal manner without any jurisdiction to record the same.

12. Mr. Kamaluddin Hossain drew our attention to a decision of the Lahore High Court in the case of Muhammad Chiragh v. The Crown (P L D 1954 Lah. 434). In that case it was held that after the passing of the Criminal Law Amendment Act (Act XXXVII of 1953) a Magistrate had no jurisdiction to try a case under the Prevention of Corruption Act If of 1947, and it was further held that where a Magistrate after the com mencement of the said Act on the 17th of November 1953, continued with the trial of a case under section 5 (2) of the Prevention of Corruption Act 11 of 1947, the proceedings after the aforesaid date were held to be without jurisdiction and void ab initio, and the conviction and sentence of the accused were set aside.

13. We would only observe that the same principle applies to this case. We must hold that the conviction of the present appellant was based upon evidence, a substantial portion of which was not evidence in the eye of law because such evidence was recorded by a Magistrate who was no longer competent to try the appellant.

14. In these circumstances, we allow this appeal and set aside the conviction of the appellant and the sentences passed on him. The fine, if realised from the appellant, shall be refunded to him.

15. The question is, whether we should direct a retrial in this case. Having regard to the fact that the appellant was placed on trial early in 1953 and the trial had not been concluded till the month of December ; 1959, and also having regard toll the fact that the appellant, for no fault of his, was kept in suspense for a period of almost seven years, we do not think that we should be justified in directing a retrial in this case. Without a proper trial the appellant has been in hajat for a considerable time. SIDDIKY, J.‑I agree. Appeal accepted.