1969 P Cr (PLP)

Mahmood Ali, Advocate Supreme Court instructed by Ch. Feroze Din, Attorney for Appellant. S. A. Mahmud, Advocate Supreme Court instructed by M. Siddiq, Attorney for the State. Date of hearing : 24th October 1956. CORNELIUS, J.‑This is an appeal by special leave and is brought by one Zahur‑ud‑Din who has been convicted under the Prevention of Corruption Act of 1947. As the grounds on which special leave to appeal was granted relate to matters of procedure and jurisdiction, it is unnecessary to recount the facts of the case. One of these grounds was that, in violation of a provision in the Prevention of Corruption Act, 1917 as in force at the relevant time, investigation of the offence had been authorised by a Second Class Magistrate, whereas tile law required that it should be b y a Magistrate of the First Class. The record of the case is now before us, and we find that the original sanction to investigate is signed illegibly above the letters and figures "M. I .C" which is an abbreviated form of the designation "Magistrate First Class". We find also that it was clearly stated in his evidence by the police officer who had investigated the case that he had obtained sanction of a First Class Magistrate before commencing investiga tion of the case. In reply to a question in cross‑examination, he said that the permission had been obtained in writing and that, this writing was Exh. P. F. It was thus made clear that compliance with the legal provision in question had been made, and if the allegation had been seriously questioned by the defence, it was their duty to lead evidence in rebuttal. Mr. Mahmud Ali for the appellant can only rely on the statement of the Magistrate Mian Abdus Samad, who was in charge of the raid party which trapped the accused in the act of taking a bribe. This Magistrate had stated that after the capture, he made out a report of the facts and had lodged it at the appropriate thana "to let the case be registered so that the S. H. O. may investigate the case". A little later, in answer to a question by the defence, he said :‑ "I left the police station and did not participate in the investigation, as I had authorised the S. H. O. to investigate the case." It is evident that the statement is to be read with the earlier passage in the witness's evidence which has been mentioned above. It cannot be understood to mean that Mian Abdus Samad was the Magistrate who signed the document Exh. P. F. At that time he was a Second Class Magistrate. We have satisfied our selves by reference to the signature of Mian Abdus Samad appear ing on his report Exh. P. J. that it does not resemble the relevant signature on the document Exh. P. F. and we accordingly hold that no irregularity of procedure has been established in this particular respect. The other point on which special leave was granted turns, upon examination of the record, to be a substantial one. It is not, and cannot be, denied that as from the 17th November 1953, owing to an amendment of the Criminal Law Amendment Act, 1948, which was declared to take effect on that day, the case against the appellant stood transferred to the Court of the Special Judge whose jurisdiction in relation to the case was, under the amended law, an exclusive jurisdiction. Between the 17th November 1953 and the 2nd August 1954 when the Special Judge made his first order in the case, a substantial amount of evidence was recorded by a First Class Magistrate, who had in fact no jurisdiction to deal with the case. It is clear that this evidence cannot be read as evidence in the case, and consequently that all the subsequent proceedings, i.e. the completion of the pro secution evidence, the recording of the defence evidence, and the conclusion of the case up to the signing of the judgment which is based to an appreciable extent upon the illegally recorded evidence were coram non judice. Accordingly it becomes necessary to set aside the conviction and to return the case to the Special Judge to be re‑tried, from the point up to which the proceedings before the first Magistrate were in due legal form. So far as appears from the record, this would, include all proceedings held prior to the 25th November 1953. We make an order accordingly. Re‑trial ordered.