1992 P Cr (PLP)

TANZIL-UR-RAHMAN, C.J.

The learned counsel for the applicant submits that the learned Additional Sessions Judge, Multan, passed judgment, dated 26-2-1990, whereby he convicted the appellant under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and sentenced him to undergo R.I. for five years with line of Rs.5,000, in default to suffer R.I. for one year more and fifteen stripes.

2. On appeal to this Court, after hearing Mr. Mashkoor Sabri, Advocate, for the appellant in Criminal Appeal No.40/I Qf 1990, another Division Bench of this Court without going into merits of the case remanded "the case back to the trial Court with the direction that D.S.P. concerned be examined as Court witness and opportunity be provided to the prosecution as well as defence to cross-examine this witness. Thereafter the trial Court to decide the case on merits and according to law as early as possible". The learned counsel for, the applicant submits that on remand, the trial Court examined the D.S.P., who was also cross-examined. Thereafter the learned trial Judge (Mr. Muhammad Ashiq Khan) acquitted the appellant by pronouncing on oral order on 30-5-1991. The learned counsel further submits that while pronouncing the said order orally the learned Judge also observed that he was going to. Layyah and on coming back from there he will write the judgment. The learned counsel further submits that the said learned Judge assumed the charge on 31-5-1991 as District and Sessions Judge, Layyah by promotion. It appears that the case remained lying without any order on the file.

3. According to the learned counsel the order was not reduced into writing. The appellant, however, after about a year has received summons from A the Court of Ch. Iftikhar Hussain, Additional Sessions Judge, Multan, in the said case to appear in the Court to face the trial.

4. The learned counsel submits that since the applicant was acquitted by an oral order pronounced by Mr. Muhammad Ashiq Khan, the then Additional Sessions Judge, Multan, in open Court, the applicant could not be summoned to face the trial in the same case. S. Admittedly there is no order in writing. The oral order, therefore, is no judgment in the eye of law as envisaged under section 367, Cr.P.C. Even if it 8 has been written but the same remains unsigned it is nojudgment in the eye' of law. Furthermore, it is noticed that the learned Additional Sessions Judge after giving charge of his post as Additional Sessions Judge, Multan, on 30-5-1991 C proceeded to Layyah and assumed the charge as District and Sessions Judge, Layyah, on 31-5-1991. In the circumstances, he ceased to be a Judge of the Court at Multan and thus became functus officio.

6. In this respect we may refer to the case of Ghulam Mustafa v. The State 1973 P Cr. L J 389 wherein the judgment not having been written or D dictated on the day when it was pronounced was held to be illegal. We still go further and say that if a judgment was dictated or written but not signed, it is no judgment in the eye of law. The application is, therefore, misconceived and E dismissed. The notice issued to him to appear in Court to face trial is legal. The applicant is to be proceeded according to law.

7. Since the matter pertains to early 1989 it is expected that the learned trial Judge will proceed with the case as expeditiously as possible.

8. The learned counsel for the applicant states at the Bar that the case before the learned Additional. Sessions Judge, who is trying the case, is fixed for 4-3-1992. The applicant is present and he is directed to appear before the Court, otherwise the bail granted by this Court shall stand cancelled. R. & P. alongwith copy of this order be sent to the trial Court immediately. N.H.Q./674/FSC Petition dismissed.