P L D 1959 (W (PLP)

MASUD AHMAD, J.‑Hakim Khan and Rab Nawaz appellants have been convicted under section 302 of the Pakistan Penal Code for the murder of one Ghulam Qasim Khan. Hakim Khan has been sentenced to death and Rab Nawaz to transportation for life, Both of them have also been convicted under section 307 of the Pakistan Penal Code for the attempted murder of Muhammad Ayaz and have been sentenced to undergo seven years' R. I., each. They have filed two separate appeals against their convictions and sentences. The learned Sessions Judge has also made a reference under section 374 of the Criminal Procedure Code for the confirmation of the sentence of death imposed on Hakim Khan. One Bakht Jamal has filed a revision petition praying for the enhancement .of the sentence of transportation for life imposed on Rab Nawaz appellant. This judgment will dispose of the two appeals, the reference made by the learned Sessions Judge and the revision petition filed by Bakht Jamal. The prosecution case was that one Suran, a resident of village Ghazni Khel, died some years ago, leaving some landed property in that village, the whole of which was inherited by Abdullah Khan, father of Ghulam Qasim Khan deceased, to the exclusion of Mst. Shah Begum, sister of the deceased. The appellants who are related to Mst. Bibi, had been claiming a share in that property on her behalf, but Ghulam Qasim Khan did not agree to their request. As a result of this dispute the relations between the parties became strained and a few months earlier both parties were sent up for trial. They, however, came to a compromise and, therefore, the criminal proceedings were dropped. On the day of the occurrence, namely the 22nd June, 1956, at peshin time, Ghulam Qasim Khan, deceased, his son, Muhammad Ayaz, (P. W. 7), his brother, Abdul Jabbar, (P. W. 6), Bakhtiar, (P. W. 9), Hayat Khan, (P. W. 10) and Gul Ajab Khan Patwari, (P. W. 11), were lying on charpoys inside the baithak of Ghulam Qasim Khan deceased, in village Ghazni Khel, when the two appellants, who were armed with rifles, came there and fired one shot, each through the windows of that baithak. One of these shots hit Ghulam Qasim Khan, who died immediately afterwards while the second shot, which was aimed at Abdul Jabbar, injured Muhammad Ayaz (P. W.). After firing these shots, both the appellants ran away. Besides the persons named above, this occurrence was witnessed by Amir Khan, (P. W. 8) and Bhai Khan (P. W. 12). Abdul Jabbar, (P. W. 6) and Amir Khan, (P. W. 8), immediately after the occurrence, proceeded to the Additional Police Post, Ghazni Khel, which is at a distance of about two and a half furlongs from that place, for lodging a report. As no literate person was present at, the Ghazni Khel Police Post, information about this occurrence was conveyed, on the telephone, to the Police Post at Gambila. Sher Khan A. S. I., who was present at the Gambila Police Post, recorded a report of this occurrence, in the daily diary, at 2‑45 p.m. The formal First Information Report was recorded sometime afterwards at the Tajori Police Station. The same evening, at about 6 p.m., Muhammad Ayaz, (P. W. 7) was medically examined by Doctor Muhammad Aurangzeb Khan. He had only one bullet wound of entrance on the right side of his chest. An X‑Ray of the wound was taken afterwards and it revealed the presence of a bullet on the back side, near the spinal cord. The post mortem examination on the dead body of Ghulam Qasim Khan was conducted by the same doctor, on the 23rd June, 1956, at 7 a.m. Superficial examination of the body revealed five bullet wounds of which two were wounds of exit. On opening the body the liver, the right kidney, the stomach and the large intestines were found to have been injured. In the opinion of the doctor, Ghulam Qasim Khan's death was due to shock and haemorrhage as a result of the injuries to these organs. Besides the doctor and the investigating Officer, the principal prosecution witnesses examined at the trial were Abdul Jabbar, (P. W. 6), Muhammad Ayaz, (P. W. 7), Amir Khan, (P. W. 8), Bakhtiar (P. W. 9), Hayat Khan, (P. W. 10), Gul Ajab Khan, (P. W. 11) and Bhai Khan (P. W. 12). The appellants, when they were examined in the trial Court, denied their guilt and pleaded that they had been impleaded falsely on account of enmity. No evidence in defence was led by them. The version of the case given by the principal prosecution witnesses was in accordance with the prosecution story mentioned above. Accepting their version as correct, the trial Court came to the conclusion that the fatal shot had been fired by Hakim Khan, but Rab Nawaz was also constructively liable for causing Ghulam Qasim Khan's death. The Court also came to the conclusion that Muhammad Ayaz (P. W. 7) had been hit by the shot fired by Rab Nawaz, but held Hakim Khan appellants also constructively liable for that offence. On these findings both the appellants were held guilty under sections 302 and 307, read with section 34 of the Pakistan Penal Code. The first objection raised by the learned counsel for Hakim Khan appellant, which, we think, must prevail, is that the learned Sessions Judge, who convicted and sentenced the two appellants, was bound in law to hear and try the case de novo and that he was not competent to convict them on the evidence recorded by his predecessor‑in‑office. A perusal of the record of this case shows that the whole of the prosecution evidence was recorded by Mr. Qaisar Khan, who was then Sessions Judge, Derajat, on the 20th May, 1957. . The appellants were also examined on the same day, and after recording the opinion of the assessors and hearing arguments the case was fixed for the 27th May, 1957, for pronouncement of the judgment. On the 24th May, 1957, the Public Prosecutor, under written instructions from the Deputy Commissioner, Bannu made a statement in the Court that he wished to withdraw from the prosecution of the case, so that it may be referred to a Council of Elders, under the Frontier Crimes Regulation. The learned Sessions Judge, on the same day, passed a short order, presumably, under section 15 of the Frontier Crimes Regulation, 1901, directing that the proceedings be stayed to enable the ‑Deputy Commis sioner to refer the case to the Council of Elders. He also directed that the record of the case be forwarded to the Deputy Commissioner. It is not clear from the record as to whether a reference was actually made to the Council of Elders or not; but on the 2nd March, 1958, the Public Prosecutor gave an application in the Court saying that in view of the finding of the Bench of the West Pakistan High Court at Peshawar that the trial under the F. C. R., after the 23rd of March, 1956, were illegal, the Deputy Commissioner had sent back the record of the case, for its decision according to law. On this application the present Sessions Judge, Derajat (Mr. Abdullah Jan Mirza) on the 23rd May, 1958, passed an order to the effect that the case be fixed for the 16th June, 1958, 'at Bannu, and that the appellants be summoned for that date. Two applications, which were presented by the appellants between the 27th May, 1958 and 2nd June, 1958, were dismissed by an order dated the 16th June, 1958. On the same day the learned Sessions Judge fixed the case for announcement of the order on the 21st June, 1958. On the last mentioned date, without taking any further proceed ings in the case, both the appellants were convicted and sentenced. In our opinion the present Sessions Judge, Derajat, acted illegally in announcing judgment on the basis of, the evidence recorded by his predecessor, without himself recording evidence in the case. A reference to section 309 of the Criminal Procedure Code would show that, after the case for the defence and prose cutor's reply are concluded and the Court has summed up the evidence for the prosecution and defence, the opinion of each of the assessors is to be taken. The Judge presiding at such al trial is then required to give judgment and to pass sentence in accordance with law. This provision of law does not empower they presiding Officer of such a Court to base his judgment on they evidence recorded by his predecessor. Section 350 of the Code of Criminal Procedure empowers a Magistrate (subject to the right of the accused person to resummon witnesses) to act on the evidence recorded by his predecessor, but this provision of law has no application to trials in the Court of Session. This point is covered by a clear authority of the Lahore High Court reported as Bashir v. The Crown (P L D 1950 Lah. 244) in which the conviction and sentence by the Court of Session was set aside, because in coming to his finding the Sessions Judge has acted on the evidence, a part of which was not recorded by him; but had been recorded by his predecessor. Out of the other cases cited by the learned counsel for the appellant; in which similar views have been expressed, reference may be made to King‑Emperor v. Sakha ram Pandurang and another (26 Born. 50) and Emperor v. Badri Parshad (35 All. 63). In the last mentioned case, the Sessions Judge, who decided it had not heard the evidence at all, but had proceeded to judgment upon the evidence recorded by his predecessor, while in the first mentioned case, the judgment of the Sessions Judge was based on evidence, a part of which had not been recorded by him. In both these cases the convictions and sentences were set aside and retrials were ordered. In three other cases cited at the Bar, namely, A I R 1930 Rang. 354, A I R 1947 Patna 428 ; and A I R 1950. Madhya Bharat 43, almost similar views have been expressed. No contrary authority was cited by the learned Assistant Advocate General, who conceded that the objection raised by the learned counsel for Hakim Khan was quite valid. For reasons given above, therefore, we are of the opinion that the learned Sessions Judge acted illegally in basing his findings on the evidence not recorded by him. Accordingly, we accept both the appeals, set aside the convictions and sentences of the appel lants and direct that they be retried in accordance with law. We direct further that the case be tried by the learned Sessions Judge, Peshawar, to whom the same is transferred. Preference should be given to this case over other work and an effort should be made to dispose it of as early as possible. In the circumstances explained, the revision petition filed by Bakht Jamal is dismissed and the sentence of death passed on Hakim Khan is not confirmed. HABIBULLAH KHAN, J.‑I agree with my learned brother in his conclusion. A comparison of section 309, Cr.. P. C., with section 350 would make it at once clear, that while under the latter section a Magistrate, subject to certain conditions, can act on the evidence heard and recorded by his predecessor, there is no corresponding provision in section 309 Cr. P. C. in respect of a trial in Sessions Court. There is abundant authority in support of the view, that a Sessions Judge must hear and record the evidence himself, and cannot pass legal order on evidence heard and recorded, whether wholly or partially, by his predecessor. In the present case, the entire evidence was heard and recorded by Mr. Qaisar Khan. Even the accused were examined and the assessors' opinion was recorded by him. His successor could not pass any legal order of conviction on the basis of evidence not heard by him. As such, the convictions and sentences of the appellants must be set aside, being illegal. The accused, however, are to be tried de novo. A. H. Re‑trial ordered.