1969 P Cr (PLP)

Criminal trial‑Acquittal‑Accused tried to the last stage by one Magistrate but judgment announced and accused at quilted by another Magistrate who had no power to take cognizance of case‑Acquittal, held, rightly set aside by High Court. Muhammad Nazar Khan, Senior Attorney Supreme Court on behalf of Nazar & Waheed, Attorneys for Petitioner. Nemo for Respondents. Date of hearing : 11th June 1969. SAJJAD AHMAD, J.‑The petitioner Sikandar Khan was tried by Mr. Muhammad Nawaz Ali Khan Khera, S. D. M., Pindigheb, on charges under section 307, P. P. C. and section 13 of the Arms Ordinance. Mr. Muhammad Nawaz Ali Khan concluded the evidence in the case but went on leave without announcing his judgment in the case. In the leave vacancy, Kazi Muhammad Hafizullah, S. D. M., Talagang, assumed the additional charge as S. D. M., Pindigheb, under the verbal orders of the District Magistrate, Campbellpur. He took cognizance of the case in that capacity and acquitted the petitioner. The Sessions Judge, Campbellpur, made a reference to the High Court for quashing this acquittal for the reasons as stated in the reference order that the Magistrate "who passed the order, did not record the evidence himself. He had no opportunity of seeing the witnesses and observing their demeanour. In spite of this, he did not discuss the evidence of eye‑witnesses. On medical evidence, the Magistrate acted on probabilities. He discussed and relied on an inadmissible evidence. He concluded by seeing the X‑ray film and the report without examining the Radiologist. There is no order on the file a s to how the learned Magistrate took cognizance of the case, as it was heard by Mr. Muhammad Nawaz Ali Khan Khera, S. D. M. up to the last stage and lie had only to pronounce judgment. In these circumstances, there has been a flagrant miscarriage of justice". The High Court on receiving the reference called a report from the learned District Magistrate, Campbellpar, which showed that no notification had been issued by the Provincial Government empowering Kazi Muhammad Hafizullah to act as Sub‑Divisional Magistrate, Pindigheb. In the notification that was issued with regard to his powers (No. 13/10‑H‑Jud 1 (11) 67) as mentioned in the high Court's order the Governor of West Pakistan invested him with powers of a Magistrate of the First Class in charge of Talagang Sub‑Division, District Campbellpur. According to this notification, his jurisdiction was limited to the Sub‑Division of Talagang and did not extend to any other Sub‑Division of Campbellpur, including Pindigheb. The High Court was, therefore, right in accepting the reference, setting aside the acquittal of the petitioner and directing his retrial. The learned Attorney for the petitioner, Mr. Muhammad Nazar Khan, who argued his case, was unable to meet the hurdle of jurisdiction on which the High Court has quashed the acquittal of the petitioner. We see no substance in this petition which is dismissed. Leave refused.