1969L3077 (PLP)

M. Saleem for Appellants. Dilawar Mahmood for the State. Ch. Ghulam Murtaza Khan (Sheik 4uhura) for Respondent No.

2. BASHIRUDDIN AHMAD, J.‑‑‑‑Muhammad Ismail (60), Muhammad Ali (35), Muhammad Hussain (25) and Nawab alias Babu (28) were tried for offences under sections 452/34, 302 /34 and 307/34, P. P. C. by the learned Additional Sessions Judge, Gujrat, camp at Sheikhupura, who acquitted Nawab and Muhammad Ali on all the charges. Ismail and Muhammad Hussain were con victed arid sentenced as below :‑‑‑‑

2. To undergo rigorous imprisonment for a period of 4 years each both under sections 452/34 and 307/34, P. P. C., to undergo rigorous imprisonment for four years each under section 326/34, P. P. C. and to suffer death for the murder of Khushi under section 302./34, P. P. C. The sentences of imprisonment were ordered to take effect in the event of the death sentences passed on each one of them not being confirmed by this Court and in that event to run concurrently.

3. The condemned persons appealed and the case is also before us under section 374, Cr. P. C. for confirmation of sentences of death. This order will dispose of the appeal as well as the reference.

4. The appeal, we are afraid, must be allowed and a retrial ordered on the short ground that the trial held in this case was illegal. This was conceded by Mr. Dilawar Mahmud, A. A.‑G., for the State. The evidence of first seven witnesses was recorded in the case by Mr. Muhammad Amir Akbar Khan, Additional Sessions Judge, Sheikhupura. The case was then transferred to the Court of Sheikh Ehsan‑ul‑Haque, Additional Sessions Judge, Gujrat, by the order of the Sessions Judge, Lahore, dated the 4th of April 1968. Sheikh Ehsan‑ul‑Haque, instead of proceeding afresh with the recording of evidence proceeded to examine tire complainant and the accused persons and they agreed that thcy did not want drat the witnesses, whose statements had already been recorded, should be examined afresh. Sheikh Ehsan‑ul -Haque recorded the evidence of the remaining witnesses and proceeded to decide the case on the evidence partly recorded by his predecessor and partly recorded by himself. Mr. M. Saleem, learned counsel for the appellants, raised the preliminary objection: that the conviction could not be sustained as tire evidence in the case on the basis of which the learned trial Judge convicted the accused was partly recorded by him and partly by his predecessor. He referred to Kottannnal Kalathinghal Onar Hajee v. King Emperor (I L R 46 Mad. 117). The Privy Council in Reg v. Bertrand(1867 L R I P C 520) considered the question as to whether the accused consent cures the illegality and it was held that such a consent .vas irrelevant and tire irregularity committed amounted to illegality vitiating the trial. In a more recent case reported as Manzoor and another v. The State (1969 P Cr. L J 371) a Division Bench considered the sane question in the light of the amendment made in section 350, Cr. P. C. and came to the conclusion that the basic principle enunciated in Buta Singh v. The Empress (I P R 1890) is that tire judgment in a criminal case should be written and pronounced by the Judge who tried the case. The principle was reaffirmed in Bashir v. Crown (P L D 1950 Lah. 244). We are tempted to quote front this Judgment :‑ "The Judge who convicts must do so on the evidence heard by him and an exception from this rule is justified only when a particular case comes within an exception recognised by statute. No such exception is applicable to the present case because section 350 of the Code of Criminal Procedure applies only to proceedings before Magistrates and a trial before a Court of Session is certainly not a proceeding before a Magistrate." In these circumstances the only course is to set aside the conviction of the appellants and direct that they be retried. Accordingly, we accept the appeal and order the retrial of the accused in accordance with law. The case is sent down and is entrusted to the Additional Sessions Judge, Sheikhupura for trial. We direct that the accused‑appellants shall henceforth be treated as under‑trial prisoners in jail. The death sentences passed on the appellants are not confirmed.