P L D 1965 (W (PLP)

Kh. Sultan Ahmad for Petitioners. Shamim Ahmad Mirza for the State. Ch. Feroze Din for the Complainant. . Dates of hearing: 14th and 16th December 1964. In this revision the two petitioners, Pir Bakhsh and Nazirud Din, have challenged their convictions under section 411, P. P. C., with a sentence of two years' rigorous imprisonment each and a fine of Rs. 1,000.00 in addition, or in default further six months' rigorous imprisonment. The entire amount of fine, if realised, was ordered to be paid to the complainant as compensation. . The conviction was recorded by Sheikh Rashid Ahmad, Magistrate 1st Class, Lahore, and was upheld on appeal by Khan Muhammad Afzal Khan, Additional Sessions Judge, Lahore.

2. The case relates to the theft of cash amounting to more than Rs. 30,000.00 and some ornaments and clothings from the house of P. W. Allah Bakhsh on the night of the 30th of September 1962. Pir Bakhsh petitioner was arrested on the 1st of October 1962 and Nazirud Din petitioner on the 2nd of October 1962. It was alleged that on information imparted by Pir Bakhsh that he had handed over the stolen property to Nazirud Din petitioner, recovery was made from the latter of Rs. 19,570 in cash, a guluband and some articles of clothings on the first occasion and Rs. 6,510.00 on the second occasion after an interval of two days. The property was identified by the complainant Allah Bakhsh as his. The Courts below have accepted the evidence of recovery against the petitioners and have also found that the identity of the stolen property was established.

3. Before me a legal point has been urged against the convictions of the petitioners, challenging the validity of the trial and as I feel inclined to uphold the objection, necessitating fresh proceedings, I refrain from offering my comments on the merits of the case. The contents of the objection are as follows: The accused‑petitioners were challaned under sections 454/411/380, P. P. C. in the Court of Syed Nasir Ali Shah, who examined one P. W., namely, Allah Bakhsh, on the 27th of November 1962, but before his examination could be concluded the case was adjourned. Syed. Nasir Ali Shah was transferred in the meanwhile, and the case came to the file of Raja Nasrullah Khan, who on the 15th of January 1963, fixed the case for the cross‑examination of P. W. Allah Bakhsh for the 24th of January 1963. Raja Nasrullah Khan thereafter examined all the prosecution witnesses, recorded the statements of the accused persons and framed charges against them under section 411, P. P. C. Raja Nasrullah Khan, however, was also transferred and the case then came to the file of Mr. Imtiaz Ali Sabi on the 10th of October 1963. T he accused were asked by Mr. Sabi under the proviso to subsection (1) of section 350 of the Code of Criminal Procedure, as it then stood, whether they wanted to recall any of the P. Ws. and they replied in the affirmative. This was on the 10th of October 1963, but later on the 24th of December 1963, they made another statement, changing their mind and saying that they did not want to re‑call the witnesses. It happened that Mr. Imtiaz Ali Sabi way also transferred thereafter and the case came before Sheikh Rashid Ahmad. When the proceedings commenced before him on the 18th of January 1964, the petitioners claimed the exercise of their option to re‑call she prosecution witnesses. Mr. Rashid Ahmad upheld this right in spite of the opposition by the prosecution, that the accused could not do so, in view of their previous statement on the 24th of December 1963, before Mr. Imtiaz Ali Sahi, that they did not wish to re‑call the witnesses. The complainant then filed a revision petition in the High Court, challenging the order of Sh. Rashid Ahmad, giving the petitioners a right to re‑call the witnesses. The revision petition was dismissed by Jamil Hussain Rizvi, J. holding that the Magistrate's order was perfectly valid. It appears that the learned Additional Sessions Judge in his appellate order has somehow conceived a reverse position with regard to the revision in the High Court. He `has wrongly stated in his order that the accused went up in revision against the order of Sheikh Rashid Ahmad which was dismissed and from that he has considered that the argument of the learned counsel for the accused‑petitioners before him that they should be allowed to re‑examine the prosecution witnesses was without force. Sheikh Rashid Ahmad then re‑examined two witnesses for the prosecution on their re‑call. Allah Bakhsh on‑the 3rd of March 1,964 and Meraj Din on the 10th of March 1964, but before the remaining P. Ws. could be re‑called and re‑examined, the Criminal Procedure Code Amendment Act (Act XVII of 1964) came into force on the 1st of April 1964. One of the amendments effected by this Amending Act was that proviso (a) to subsection (1) of section 350 of the Code of Criminal Procedure was deleted, thus doing away with the right of the accused to ask for the re‑summoning and re‑hearing of the witnesses by a second Magistrate after the first, who had recorded the evidence or part of the evidence, had ceased to exercise jurisdiction therein by transfer or otherwise. Section 3 of the Amending Act introduced a new section 251‑A, which requires that in all case instituted upon police report, except those tried summarily, copies of statements of all witnesses recorded by the police under section 161 and of the inspection note recorded by an investigating officer on his first visit to the place of occurrence shall be supplied to the accused seven days before the commencement of the trial free of cost. A proviso was added to this section which it is not necessary to state for purposes of this case.

4. In view of the change brought about by the deletion of the old proviso to section 350, mentioned above Sheikh Rashid Ahmad considered that the re‑examination of the remaining witnesses of the prosecution who bad been re‑called by the petitioners was rendered unnecessary and could not be insisted upon. On the 4th of May 1964, he directed that the copies of the police statements of the prosecution witnesses be handed over to the petitioners which were supplied to them on the 6th of May 1964. On the 14th of May 1964, he recorded his order stating that the prosecution evidence had already been concluded and the statements of the accused persons had also been taken down. They were ordered to produce defence evidence on the 26th of May 1964. The order for the supply of the police statements of the witnesses appears to have been made by Sheikh Rashid Ahmad in compliance with the provisions of the newly added section 251‑A of the Code of Criminal Procedure. Obviously however the could not be put to any use as a measure of practical utility in this case for the examination or cross‑examination of the P. Ws., who had already been examined and cross‑examined and were not allowed to be examined any further.

5. The legal objection urged before me by the learned counsel is that after the learned Magistrate had directed that all the witnesses be re‑called, which order was upheld in revision by the High Court in spite of the opposition by the prosecution and after the order was partially implemented by the examination of two witnesses on the 3rd and 10th of March N3, respectively, the subsequent change in the procedure brought about by Act XVII of 1964, including the deletion of proviso (a) to subsection (1) of section 350 should not be allowed to hamper the right of the petitioners to complete the examination of all the prosecution witnesses who had been re‑called be Sheikh Rashid Ahmad prior to the change in the law.

6. It is well‑settled that there is no vested right in procedure and mere changes in the law of procedure carrying no corresponding liabilities can also affect pending cases, but this is subject to one important limitation which is that where some valuable rights have accrued under the old procedure the new procedure in its application should not be allowed to prejudice those rights; nor should the new procedure be applied where it involves a breach of faith between the parties. (See Maxwell on "Interpretation of Statutes" 11th Edn. p.

211. In the present case, the option to re‑call the witnesses under the unamended law was allowed to be exercised by the petitioners. Two of the prosecution witnesses had been re‑examined in implementation of the Court's order for re‑call of the witnesses. The sudden interruption in the flow of the case according to the old procedure by denying the petitioners the right to re‑examine the remaining witnesses because of the change in that procedure has clearly worked to their prejudice. Under the old law the accused had got a right not to be convicted by a Magistrate who had no; himself heard and recorded evidence and to ask for the re‑examination of the witnesses by the succeeding Magistrate. This right stood revived each time that a new Magistrate came to exercise jurisdiction over the case, although the right may not have been pursued before an intervening Magistrate or may have been waived before a previous one. As the petitioners have been deprived of their right to the re‑call of some of the prosecution witnesses and the learned Magistrate has acted on the statements of those witnesses which were not recorded by him and which the petitioners wanted, to be re‑examined, the conclusion is inescapable that the trial is not free from a quasi legal defect. I am, therefore, constrained to hold that the trial stands vitiated by the illegality committed by the trial Court, mentioned above. The convictions and sentences of the petitioners are set‑aside. The case shall be sent back to the District Magistrate, Lahore, for a fresh trial by a competent Magistrate. If Sheikh Rashid Ahmad is still available, the case should preferably be sent to him who can re‑commence it from the stage of the re‑examination of the prosecution witnesses other than Allah Bakhsh and Meraj Din, whose statements were recorded by him on re‑call.

7. It was brought to my notice during the arguments in the case that the alleged stolen property has been lost during the pendency of this case some time between the 12th of December 1962, and the 5th of November 1963. It was lost from the treasury when some person secured its delivery from there, personating as an Assistant Sub‑Inspector of Police for the purpose of producing it before the trial Magistrate. A separate case has been started in respect of this theft. If there be any difficulty regarding the examination of the witnesses on account of the non‑production of the alleged stolen property, the prosecution will be able to depend on secondary evidence in that behalf. As the trial will take sometime now and as the petitioners have been in jail for quite sometime, I direct their release on bail in the sum of Rs. 10,000.00 each with two sureties in the like amount to the satisfaction of the District Magistrate, Lahore, pending the trial against them. K. B. A. Order accordingly.