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Criminal Appeal No. K‑11 of 1963, decided on 11th December 1963.

(On appeal from the judgment and order of the High Court of West Pakistan, Karachi Bench, Karachi, dated the 20th August 1962, in Criminal Revision No. 353 of 1962).

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---‑Leave granted to consider whether accused could be deprived by High Court in revision of right given under S. 350, Cr. P. C., 1898‑Constitution of Pakistan (1962), Art. 58 (3).

S. 350‑Case sent, by High Court in revision, from one Magistrate to another for retrial‑Accused has statutory right under section to recall and re‑examine witnesses even if retrial had been ordered only from particular stage.

Virumal Secomal v. Emperor A I R 1941 Sind 144 ref.

Z H. Chishti Advocate Supreme Court instructed by Hyder Bakhsh Attorney for Appellant.

M. Haleem and Murtaza Hussain Advocates Supreme Court instructed by M. B. Mesawa Attorney for Respondent No. 1.

Respondents Nos. 2 and 3 Ex parte.

Date of hearing : 11th December 1963.

.‑The facts giving rise to this appeal by way of special leave, are as follows. The appellant, Mr. Akhtar Mumtaz, was tried and convicted under section 500 of the Pakistan Penal Code and sentenced to pay a fine of Rs. 250 or in default, to suffer simple imprisonment for one month, by the Additional City Magistrate, Karachi. The convict appealed to the Additional Sessions Judge, Karachi, but failed to obtain a reversal of judge ment. A revision petition was then preferred to the High Court of West Pakistan, Karachi Bench, and a learned Single Judge of the High Court, by order dated the 1st of November 1961, set aside the conviction and ordered a retrial on the ground that certain illegalities had crept into the procedure adopted by the Magistrate. The principal reason in this context was that the accused had not been called upon to say whether she would examine any evidence in defence, after the case for the prosecu tion had been finally closed. Moreover, the accused was not asked any questions under section 342, Criminal Procedure Code, after the further cross‑examination of certain prosecution witnesses under section 256, Criminal Procedure Code. The retrial was therefore directed to commence from the stage at which the illegalities had crept in. The case was sent to the City Magistrate, Karachi, with the direction that he should try it himself or send it for disposal to one of the Additional City Magistrates, other than the one who had tried the case previously.

When the case came up before the second Magistrate the accused prayed that the prosecution witnesses may be recalled for further cross‑examination, under section 350 of the Code of Criminal Procedure. The learned Magistrate rejected the prayer of the accused on the basis that the High Court had directed a retrial from a certain stage in the case. The accused then challenged the legality and propriety of this order by a revision petition to the High Court. The same learned Judge who had heard the original revision petition of the accused, declined to interfere with the order of the Magistrate, for the reason that, in his view, section 350 of the Criminal Procedure Code was not attracted to a case of this type.

Special leave to appeal was granted in this case to consider whether the accused could be deprived of the right given to her under section 350 of the Code of Criminal Procedure, by the order of the High Court in revision.

Section 350 of the Code of Criminal Procedure is in the following terms :‑

"350. (1) 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 juris diction, the Magistrate so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his pre decessor and partly recorded by himself ; or he may re‑summon the witnesses and recommence the inquiry or trial

Provided as follows‑

(a) in any trial the accused may, when the second Magistrate commences his proceedings, demand that the witnesses or any of them be re‑summoned and re‑heard ;

(b) the High Court, or, in cases tried by Magistrates sub ordinate to the District Magistrate, the District Magistrate may, whether there be an appeal or not, set aside any conviction passed on evidence not wholly recorded by the Magistrate before whom the conviction was held, if such Court or District Magis trate is of opinion that the accused has been materially pre judiced thereby, and may order a new inquiry or trial.

(2) Nothing in this section applies to cases in which proceed ings have been stayed under section 346 or in which proceedings have been submitted to a superior Magistrate under section 349.

(3) When a case is transferred under the provisions of this Code from one Magistrate to another, the former shall be deemed to cease to exercise jurisdiction therein, and to be succeeded by the latter within the meaning of subsection (1)."

The present case would seem to be covered by subsection (3) of this section as the case must be regarded as having been transferred from the first Magistrate to the second Magistrate. The proviso to subsection (1) of the section therefore could have been invoked by the accused in support of her demand that the prosecution witnesses or any of them be re‑summoned or re‑heard.

The original order passed in revision on the 1st of November 1961, by the learned Single Judge contains the following obser vations at the end :‑

"In view of the illegalities committed, I set aside the order of conviction and remand the case for retrial from the stage from where the illegalities pointed out above have been com mitted. The learned Magistrate may after compliance with the procedure laid down in the Code of Criminal Procedure pass a fresh order. The revision application is consequently allowed. The case is sent to the City Magistrate who will try it himself or send it to one of the Additional City Magistrates other than the one who heard the case previously."

In terms, this order does not preclude the accused from invoking any provision of the Code of Criminal Procedure in the course of the second trial. With all respect, therefore, it is not clear to us why the learned Judge while hearing the second revision petition, came to the conclusion that section 350 of the Criminal Procedure Code could not be pressed into service in cases of this type. The accused had the statutory right under section 350 of the Code of Criminal Procedure, to recall any of the prosecution witnesses for cross examination and she could not be deprived of that right by an order of the High Court. That this is the correct position, has been conceded by the learned counsel who appeared for the State. He has drawn our attention to a similar case reported as Virumal Secomal v. Emperor (A I R 1941 Sind 144), in which a Division Bench of the Chief Court of Sind had held that where a case has been sent from one Magistrate to another for retrial, even if it is only from a parti cular point in the trial and as a result of an order of remand made by the Appellate Court, section 350 (3) would be applicable to the case. The order passed by the learned Single Judge therefore cannot be sustained as it is clearly erroneous.

The appeal is allowed. The learned Magistrate would now proceed with the trial in accordance with the provisions of the Code of Criminal Procedure, including section 350 of that Code.

K. B. A. Appeal accepted.

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