1998 P Cr (PLP)

(2)??????? The Magistrate to whom the case is submitted may, if, so empowered, either try the case himself, or send the case for trial to the Court of Session or the High Court." In subsection (1) of this section the words used are "by some other Magistrate in such District" which means that any Magistrate of the District if it appears to him that the case is of a nature which should be tried or sent for trial to a Court of Session or any other Magistrate, reference can be made under section 346, Cr.P.C. Section 6 of Cr.P.C. prescribes various classes of Criminal Courts which are as under:-- (i) Court of Session. (ii) Omitted. (iii) Magistrate 1st Class. (iv) Magistrate 2 Class. (v) Magistrate 3rd Class. These Magistrates have been vested with the powers which have been detailed in the Schedule III and under section 36, Cr.P.C. Although these Magistrates have been vested with different powers but nevertheless all the Magistrates are Magistrates having jurisdiction in the District where they are appointed. As regards Magistrates 1st Class the Provincial Government can invest them with enhanced power under section 30 of Cr.P.C. and by virtue of investment of these powers all these Magistrates under section 30, Cr.P.C. can try all the offences except those offences punishable with death. It is contended by the learned counsel that the evidence had since been recorded by the Magistrate 1st Class and subsequently the same was submitted and entrusted to Magistrate Section 30, therefore, Magistrate Section 30 was legally bound to examine the entire witnesses and collect the evidence afresh. He could not decide the case on the basis of evidence which had been recorded by the former Magistrate who, according to the learned counsel, cannot be treated as his predecessor as Magistrate Section 30 cannot be considered as a successor to Magistrate 1st Class. Section 350, Cr.P.C. whereby a succeeding Judge or succeeding Magistrate has been permitted to act on the evidence recorded by his predecessor or he may act on the evidence partly recorded by him or partly recorded by his predecessor, is not applicable to the present case. Section 350, Cr.P.C. is reproduced as under:

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350. Conviction or evidence partly recorded by one Presiding Officer and partly by another.

(1) Whenever any Sessions Judge or Magistrate, after having heard and recorded the whole or any part of the evidence to an inquiry or a trial, ceases to exercise jurisdiction therein and is succeeded by another Sessions Judge or Magistrate who has and who exercises such jurisdiction, the Sessions Judge or Magistrate so succeeding may act on the evidence so recorded by his predecessor or partly recorded by his predecessor and partly recorded by himself, or he may resummon the witnesses and recommence the inquiry or trial:-- Provided that:-- (a)??????? Where the conviction was held before a Sessions Judge, the High Court; and (b)??????? Where the conviction was held before a Magistrate, the High Court; or the Court of Session: may whether there be an appeal or not, set aside any conviction passed on evidence not wholly recorded by the Sessions Judge or Magistrate before whom the conviction was held, if such Court is of opinion that the accused has been materially prejudiced thereby and may order as a new inquiry or trial. . (2)??????? Nothing in this section applies to cases in which proceedings have been stayed under section 346 or in which proceedings have been submitted to a superior Magistrate under section 349. (3)??????? When a case is transferred under the provisions of this Code from one Magistrate to another, the former shall be deemed to cease to exercise jurisdiction therein and to be succeeded by the latter within the meaning of subsection (1)."

3. In support of his contentions the learned counsel has cited some cases. More important of them are Muhammad Aslant v. The State 1993 MLD 2247 wherein his Lordship while referring to section 350, Cr.P.C. held that Magistrate being not a successor of Additional Sessions Judge within the purview of section 350, Cr.P.C. was not competent on the transfer of the case to him, to act upon or utilize the evidence already recorded by Additional Sessions Judge. This amounted to illegality sufficient to vitiate the trial; in other judgment titled as Guloo alias Gul Hassan and others v. The State 1994 PCr.LJ 116 wherein similar view was taken as had been expressed by the learned Federal Shariat Court that Additional Sessions Judge seized with the matter relied upon the examination-in-chief of all the witnesses recorded by the Magistrate but recalled the same witnesses for further cross-examination and decided the case on the strength of that evidence, it was held that the Additional Sessions Judge was not competent to act on the evidence recorded by the Magistrate. The conviction and sentence, thus, awarded was set aside being nor sustainable in law. Both the rulings referred to above by the learned counsel are not applicable to the facts of the present case. Apart from the abovesaid authorities the learned counsel has also relied upon Sridhar Jha v. Emperor AIR (34) 1947 Pat. 234, wherein the trial was conducted by a Magistrate 2nd Class. Subsequently the case was entrusted to Z Magistrate 1st Class after framing of charge. It was held that the reliance or evidence recorded by the former Magistrate could not be validated. With respect I would observe that Criminal Procedure Code has undergone drastic changes Warrants case trials whereby charge has to be framed after recording of evidence and then witnesses have to be re-examined or cross-examined after framing of charge has been dispensed with. Summons case procedure has been adopted. Or query the learned counsel has also not been able to explain as to any section parameteria with section 350, Cr.P.C. has been incorporated in the Criminal Procedure Code applicable in India. In the case in hand section 350, Cr.P.C. has been sought to be interpreted, therefore, this authority is also not of any help.

4. The question of law involved in the instant case is that in case the evidence when recorded by Magistrate 1st Class and it was held that the earlier Magistrate had no jurisdiction is that the case should be heard and decided by a Magistrate who is vested with enhanced powers can be treated as successor or not and can the succeeding Magistrate avail of the provisions of section 350, Cr.P.C. While reading sections 6, 30, 346 and 350 altogether there appears to be no confusion to interpret whether Magistrate 1st Class vested with section 30 is a successor of Magistrate 1st Class or not. In my view classification of Magistrates as laid down by section 6 of Cr.P.C. a Magistrate Section 30 is not a different class of Court. By investment of powers under section 30, Cr.P.C. the Magistrate 1st Class nevertheless remains Magistrate 1st Class and investment of added and enhanced powers does not exclude him of the category of the Magistrate. Sections 346 and 350, Cr.P.C. both have reference to three classes of Courts i.e. High Court, Court of Session and Court of a Magistrate. It has not been specified as to whether Magistrate Ist Class, Magistrate 2nd Class or Magistrate 3rd Class have been empowered under this section. The Legislature treated all the Magistrates as one class of Court, therefore, while interpreting section 350, Cr.P.C. a Magistrate 1st Class will be deemed to be a predecessor of Magistrate Section 30 and the succeeding Magistrate can validly rely upon the evidence recorded by his predecessor as was done in the present case.

5. Considering this question from another angle and by keeping in view the purpose and spirit for which section 350, Cr.P.C. was substituted in the Criminal Procedure Code by Second Amendment Ordinance (VIII), the intention of the Legislature is abundantly clear. With a view to conclude the trial without delay, the successive Magistrate has been authorised to utilize and rely upon the evidence already recorded by his successor. If the interpretation as canvassed by the learned counsel has to be accepted that a case referred by Magistrate Ist Class for trial to a Magistrate with power under section 30, Cr.P.C. so that an accused person may be adequately sentenced, the whole purpose may be defended in the event of summoning the witnesses afresh. There is no denial of truth that trials are delayed on account of delay in summoning the witnesses. If section 350 is to be interpreted strictly as argued by the learned counsel it would defeat the purpose for which it was introduced and incorporated in the Criminal Procedure Code.

6. The upshot of the above discussion is that the learned Magistrate has not committed any illegality by utilizing and relying upon the evidence recorded by his predecessor. The revision petition, therefore, fails and the same is dismissed. N.H.Q./M-478/L???????????????????????????????????????????????????????????????????? Revision petition dismissed.