P L D 1980 Karachi 96 (PLP)

The circumstances in which this Revision application has been filed, succinctly stated are as follows: One Tarranum Aziz, aged about eight years, was kidnapped on the way to her house in Federal B' Area, on 5-2-1978. On the report of her father Aziz Ahmed Beg, a case was registered by the Gul Berg Police Station, and hectic efforts were made for her recovery. Or: the 7th of February, 1978, Aziz Ahmed Beg is alleged to have received a letter demanding ransom to the tune of Rs. 1,00,000, for the return of the girl. It contained a threat that, in case report was made to the police, dire consequences would follow. There was also telephone call indicating the place where the money was to be received. Nothing of consequence happened for the next few days, till the dead body of Tarranum Aziz, wrapped in a gunny bag, was found lying on 10-2-1978 near an orphanage. After the autopsy had been held,. the offence was changed under sections 302, 364 (A), 376 and 377, P. P. C. The discovery of the body, and the circumstances in which she had been done to death, created quite a furore, and there was a public demand for the hunt of the culprits. It appears that the five respondents were arrested on 23-2-1978 and sent up for trial. One of the respondents is a close relation of the deceased. The trial proceeded before the Sessions Judge, Karachi. Mirza Arshad Beg, who was the Sessions Judge, examined forty-one witnesses, out of the fifty three mentioned in the charge-sheet. Five of the remaining witnesses were given up. It might as well be mentioned that an application was moved for the transfer of the case from his file, but, in spite of the fact that no stay order was given, the case could not be completed for one reason or the other, when, on 31-12-1978, the aforesaid Sessions Judge retired from service. The accused in the case presented an application before his successor that they did not desire a de novo trial and the proceedings, therefore, be continued from the stage where it was left. The application came to be opposed by the Special Public Prosecutor. The learned Sessions Judge, however, allowed the application, resulting in this Revision Application. The learned Sessions Judge in his order has mentioned that there was an earlier practice that whenever a Sessions Judge or Additional Sessions Judge was transferred from one district to another, he was appointed an ex officio Additional District Judge of the district he had left, to complete the trial of part heard cases. He referred to a circular of the High Court in 1975 in which this practice was deprecated, as it caused a lot of dislocation of work, in addition to wastage of public money. However, in special circumstances, the old practice was still to be followed. The learned Sessions Judge mentions that even that could not be availed of, inasmuch as Mirza Arshad Beg was no more available for work. He also referred to an unreported case of this Court being Criminal Appeal No. J-41/70, Munawar v. The State, decided on 7-12-1972 in which it was held that the renewal of evidence in a part heard case by a succeeding Judge was not necessary, as no violation. of mandatory provision was involved, and, even if there was some irregularity, the same was cured under section 537 of the Criminal Procedure Code. He also took notice of a number of cases on the point from different High Courts and the Supreme Court. The learned Additional Advocate-General contended, that, it was a general principle that the judgment in a criminal case was to be written and pronounced by the Judge who had tried the case. The rule contained just a few exceptions, one of which was to be found in section 350 of the Code of Criminal Procedure. The aforementioned exception expressly dealt with the cases pending before the Magistrates. A Sessions Judge, therefore, was not competent to pronounce judgment on evidence recorded by his predecessor, or on evidence partly recorded by his predecessor and partly by himself. Reliance was placed by him on Bashir v. Crown (1), Hakim Khan v. The State (2) and K.-E. v. Sakharam Paudarang and another (3). Mr. Salim Haqqani, learned counsel for the respondent No. 3, however, contended that section 350 of the Code of Criminal Procedure covered also the procedure to be followed at the trial in the Court of Session. He pointed out that. this section was to be found in Chapter XXIV, with the heading "General Provisions As to Inquiries and trials", it contained section 342, and some other sections which applied to trials, in the Courts of the Magistrates, the Court of Session, and even the High Court, if a trial proceeded there. He also referred to the omissions to the proviso (a) of the said section in India in 1955 and in Pakistan in 1964 by Act XVII (Code of Criminal (Amendment) Act). It is not necessary to dilate on this aspect of the case, because it has been repeatedly held by our Courts that this provision did not apply to the trials in Sessions Courts, because of the express use of the word( 'Magistrate'. It was, however, urged by Mr. Salim Haqqani that the principle that He alone may decide, who heard the evidence", may be al salutary principle of natural justice, but there was no such express prohibitions in the statute and that Sessions Judges can, therefore, act upon the evidence recorded by their predecessors. In support of the contention, he referred to the case of The State of Hyderabad v. Sidlingappa and' others (4), In re: Ibrahim Ali (5), In re: Arulay (6). In the earlier two cases it was affirmed that if a Sessions Judge acts upon evidence recorded by his predecessor, no question of jurisdiction is involved and that the infirmity thus arising, is at the most an irregularity which could be cured by section 537, Cr. P. C. He also referred to the substitution of section 537, Cr. P. C. vide Schedule to the Law Reforms Ordinance, item

175. Under clause (h) of this section, no sentence, or order passed by a Court of competent jurisdiction could be reversed or altered on account of any error, omission or irregularity in the mode of trial, unless such error omission or irregularity in any proceeding under the Code had, in fact, occasioned a failure of justice. Mr. Adeel Ahmed, appearing for the respondents 1, 4 and 5 argued that even the Supreme Court in G. S. Gideon v. The State (7), did not insist on the renewal of evidence and ratified the evidence which had been partly recorded by another Bench of the High Court. Reference to the aforesaid case would be rather inapt, as those were proceedings in a case under the Contempt of Court Act. Such a proceeding as held in Saadat Khialy v. The State (8), was by nature, purely sui generls and where technical accuracies were not required. Nor were the Courts bound by the provisions of the Code of Criminal Procedure. (1) P L D 1960 Lah. 244???? (2) P L D 1959 Pesh. 20 (3) I L R 26 Bom. 50????????? (4) 53 Cr. L J 722 (5) 1960 Cr. L J 822??????????? (6) A I R 1926 Mad. 815 (7)PLD1963SC1???? (8)PLD1962SC457 It was, however, urged that the procedure for the trial of Sessions cases did not contain any express bar as in the cases before the Magistrates, as the very concept of a trial, partly before one Judge and partly before another Judge, was - not even remotely contemplated by the framers of the law. So far so good. It might as well be said that the framers of the law could also never contemplate a sessions trial being protracted for months and year together. It is true that when a witness appears before a trial Court, the Court has the opportunity to look to the manner of the witness, his agitation, his doubts, his variations of language and his confidence, but if a trial Judge finds something to note about the demeanour of the witness about which he has got to say something in the judgment, he is required under section 363, Cr. P. C. to make a note of the same on the record at the end of the evidence, or, as early as possible. In the absence of a note to that effect, he cannot be permitted to rely on his recollections at a later .period. Apparently any other Sessions Judge, who, proceeds with the case at a later stage and has to write the judgment will, therefore, have no difficulty in a proper appreciation of the evidence. If for any other reason, there is any palpable miscarriage oft justice, the effor, if any, can always be corrected by the appellate, or, the revisional Court. The salutory principle that he alone can decide who hash heard the evidence was evolved primarily to minimize prejudice to the accused in a case. I had asked Mr. Muhammad Ibrahim Memon whether there, was any case in which the State had joined issues in such a situation, but he could not point to a single case. Mr, I. A. Hashmi, appearing on behalf of the respondent No. 2, maintained that the attempt made here was mala fide and with the object to gain time. It is not necessary to expatiate on the unsavoury allegations. However, it appears to me that the prosecution' bade nothing to gain in the bargain, except playing with time, because anything which has been said by the present witnesses can easily be brought on the record even if there was to be a subsequently trial de novo. I will, therefore, dismiss the Revision Application. The evidence, I am informed, has been completed, and the learned Sessions Judge will dispose of the case without any further loss of time. Appeal dismissed.