P (PLP)

The judge who convicts, must do so on the evidence heard by hick 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:

1. P. R. 1890 (Criminal) relied on, I: L. R. 26 Bom. 50 and

1. L. R. 35 All. 63 referred to. (b) Punjab Public Safety Act (II of 1947) S. 37‑Does root affect general Principles of section 350 of Criminal Procedure Code (V of 1898). Section 350 of the Code being only applicable to proceedings before Magistrates, its omission from the Code by section 37 of the Punjab Public Safety Act, 1947, in no way affected the general principle that a judge has no power to act, upon depositions not heard and recorded by himself, unless those depositions are tendered before him as a relevant fact under the authority of some section of the Evidence Act, the Criminal Procedure Code or some other Act. M. Saleem; for Appellant. M. H. Munir, for Advocate‑General for Crown. JUDGMENT. ‑This appeal, which is from a sentence of death on a conviction of murder, must succeed and the conviction and sentence set aside on the short ground that in ' coming to his findings the learned Additional Sessions judge has partly acted on evidence not recorded by him but by his predecessor. The case related to a charge of murder and bad been sent up to the Court of Session by a Magistrate under section 3; of the Punjab Public Safety Act, 1947. That Act expired on 14th August 1949, but under the proviso to section 36 of the West Punjab Public Safety Act, 1949, the trial had to be held in accordance with the provisions of section 35 of the Act of 1947. The trial opened before Mr. Riaz Ahmad Qureshi, Additional Sessions Judge, Gujranwala at Gujrat, on 15th December 1949. He had recorded the statements of nine witnesses for the prosecu tion when the Court of the .ydditional Sessions judge at Gujrat was abolished. By an order of the Sessions Judge, Gujranwala, the case was transferred to Mr. Ghulam Rabbani, Sessions judge of Jhelum, who was also ex‑officio Additional Sessions Judge for Gujranwala. Mr. Ghulam Rabbarii recorded the remaining evidence, and convicted and sentenced the appellant. The main witness for the prosecution is the approver Inayat (P. W. 10), whose statement was 'recorded by Mr. Ghulam Rabbani himself. But in seeking corroboration of this witness's evidence, the learned judge has relied on some evidence, which had been recorded before Mr. Riaz Ahmad Qureshi. It is, therefore, obvious that in convic ting he has used evidence which he was not competent under the, law to use as a basis for his findings. As was said by Rivaz, J. in Buta Singh v. The Empress, 1 P. R. 1890 (criminal), it is undoubtedly a general principle, which only has to be stated to be accepted, that the judgment in a criminal case should be written and pronounced by the Judge who tried the case. To this general rule there are some exceptions, one of which is to be found in section 350 of the Code of Criminal Procedure, according to which, whenever any Magistrate, after having heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, and is succeeded by another Magistrate who has and who exercises such jurisdiction, the Magistrate so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself. But here again; the Magistrate has discretion to summon the witnesses and recommence the inquiry or trial; the accused has the right to demand when the second Magistrate commences his proceedings that the witnesses or any of them be re‑summoned and re‑heard; and the High Court and; in some cases, the District Magistrate, whether there be an appeal or not, has the power to set aside any conviction based on evidence, not wholly recorded by the; Magistrate before whom the conviction u as held. It is thus clear that the general principle is as stated by Rivaz, J., namely, that 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. Mr. Saleem, learned counsel for the appellant, has cited several cases, more‑or less similar to the present case, in which the conviction and sentence were held to be illegal, because the Sessions judge had acted on evidence not heard and recorded by himself. One such case has already been referred to and for others reference may be made to I. L. R. 26 Born. 50, King Emperor v. Sakharam Pandurang and another and I. L. R. 35 All. 63, Emperor v. Badri Prasad. The present trial was, therefore, prima facie it was faintly suggested by learned counsel for the Crown that the case having been tried as a summons case under the Punjab Public Safety Act of 1947, section 350 of the Code of Criminal, Procedure which gives to the High Court the power to set aside a verdict passed on evidence not recorded by the Judge pissing the verdict was not applicable. There are two replies to this contention: first, that section 350 of the Code was omitted by section 37 of the Punjab Public Safety Act, 1947, but the latter itself was not preserved when the Act of 1947 was replaced by the Act of 1949; and, secondly, section 350 of the Code being only applicable to proceedings before Magistrates, its omission from the Code by section 37 of the Punjab Public Safety Act, 1947, in no way affected the general principle that a Judge has no power to act upon depositions not heard and recorded by himself, unless those depositions are tendered before him as a relevant fact under the authority of some section of the Evidence Act, the Criminal Procedure Code or some other Act. We, therefore, hold that the conviction and the sentence in the present case are void and direct the case to be re‑tried by a Sessions judge or Additional Sessions judge having jurisdiction to try it. K. M. A./A.H. Retrial ordered.