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Criminal Appeal No. 329 of 1968, decided on 20th January 1969.

S. 537 read with S. 350 and Chapter XXIII‑Sessions Judge proceeding with trial from stage at which left by his predecessor‑Section 350 not applicable to trial before Court of Session‑Provisions of Chapter XXIII held do not empower Sessions Judge to take into consideration evidence recorded by his predecessor‑Procedure followed by Sessions Judge, vitiated trial ‑Defect not curable under S.537‑Case remanded for fresh trial.

Buta Singh v. The Empress 1 P R 1890 ; Bashir v. Crown P L D 1950 Lah. 244 and Hakam Khan v. State P L D 1959 Pesh. 20 fol.

G. S. Gideon v. State P L D 1963 S C 1 distinguished.

Saadat Khialy v. State P L D 1962 S C 457 ref.

M. B. Zaman for Appellants.

Saeed‑ur‑Rahman for A.‑G. for the State.

.‑Manzur Ahmad (28) and his uncle Bahadur Khan (63) were tried on charges under sections 302 and 302/109, P. P. C. respectively, by the Sessions Judge, Bahawalpur, for the murder of Mst. Sakina Bibi, on the 3rd of February 1967, in the area of Chak No. 67/DB, Police Station Yazman District Bahawalpur. By judgment dated the 27th of April 1968, Manzur Ahmad was convicted under section 302, P. P. C. and Bahadur Khan was convicted under section 302/109, P. P. C. and both were sentenced to suffer death. The convicts preferred Criminal Appeal No. 329 of 1968, to have set aside their convictions and sentences. The learned Sessions Judge referred the case to this Court under section 374, Cr. P. C. for confirmation of the death sentences. This judgment will dispose of the appeal as well as the reference.

2. Mr. M. B. Zaman, learned counsel appearing on behalf of the appellants, pointed out at the very outset that the trial commenced before Mr. M. A. Rashid, Sessions Judge, Bahawalpur on 6‑2‑1968, when the statement made by Dr. Muhammad Khalid before the Committing Magistrate was transferred to the record of the Sessions file and the statement of Mehr Din Constable was partly recorded and the case was adjourned to 15‑4‑1968. In the meantime, Mr. M. A. Rashid, was transferred and Ch. Ghulam Hussain took over as Sessions Judge, Bahawalpur. On 15‑4‑1968,Ch. Ghulam Hussain proceeded with the trial of the case from the stage at which it was left by his predecessor. On 17‑4‑1968, learned counsel appearing for the accused before the Sessions Judge declined to further at cross‑examine Mehr Ali Foot‑Constable. The proceedings were completed and the appellants were convicted and sentenced as stated above.

3. Learned counsel for the appellants contended that the, procedure followed by the learned Sessions Judge (Ch. Ghulam Hussain) vitiated the trial inasmuch as, in recording the conviction, he acted on the evidence which had been recorded partly by his predecessor (Mr. M. A. Rashid) and partly by himself. In this connection he relied on Buta Singh v. The Empress (1 P R 1890) and Bashir v. Crown (P L D 1950 Lah. 244).

4. Mr. Saeed‑ur‑Rehman, learned counsel appearing for the State, urged that at the worst it was an irregularity in the trial which was curable under section 537, Cr. P. C. In his view, the irregularity had not occasioned a failure of justice. In support of his contention he relied on G. S. Gideon v. State (P L D 1963 S C 1). In particular, he referred to the provisions of section 350, Cr. P. C., as amended by West Pakistan Act, XVII of 1964, which empowered a Court to dispense with de novo trial.

5. We have carefully considered the arguments advanced by the learned counsel for both the sides and are of the view that the trial stands vitiated. Section. 350, Cr. P. C. related to trial by a Magistrate. In terms, it is inapplicable to the trial before a Court of Session. It is remarkable that there is no corresponding provision in Chapter XXIII of the Code of Criminal Procedure, relating to trial before the High Courts and Courts of Session. Section 537, Cr. P. C. states that the order shall not be reversed on appeal on account of "any error, omission or irregularity in the complaint . . . . warrant, charge, proclamation, order judgment or other proceedings before or during the trial . . ." The words "other proceedings" shall be read ejusdem generis with the words which preceded them (Vide A I R 1939 Sind 209). Clause (b) of the said section states that no order shall be reversed on account of any "error, omission or irregularity in the charge or mode of trial". The defect under examination did not amount to an irregularity in the "mode of trial". The basic principle, as enunciate, in Buta Singh's case is that "the judgment in a criminal case should be written and pronouned by the Judge who tried the case". This principle was affirmed in Bashir v. Crown. It was held :

"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."

This ruling was followed in Hakam Khan v. State (P L D 1962 S C 457). We are in respectful agreement with these observations.

If follows that the operative part of section 537 is inapplicable to the instant case. Had that part been applicable, it would have been necessary to see whether the defect was not cured because it had occasioned a failure of justice. In this view of the matter, it is not necessary to determine whether the defect in question has or has not occasioned a failure of justice.

The case reported as G. S. Gideon v. State relied upon by the learned counsel for the State is distinguishable inasmuch as it relat ed to proceedings under the Contempt of Courts Act, 1926. It was held in Saadat Khialy v. State (P L D 1959 Pesh. 20) that contempt proceedings were by nature purely sui generis. There was no fixed formula for contempt proceedings and the technical accuracies were not required, nor were the Courts bound by the provisions of the Code of Criminal Procedure or by the technicalities of ordinary criminal proceedings. In the instant case, the learned Sessions Judge (Ch. Ghulam Hussain) was under an obligation to follow the procedure prescribed in Chapter XXIII of the Code and this procedure did not empower him to take into consideration evidence recorded, not by himself, but by his predecessor.

The amendment made in section 537, Cr. P. C. did not reflect a modification in the basic principle enunciated in Buta Singh's case.

We, therefore, conclude that the procedure followed by the learned Sessions Judge, vitiated the trial and the defect was not cured by section 537, Cr. P. C.

6. In this view of the matter, accept the appeal and set aside the convictions and sentences of the appellants. The case is remanded and is entrusted to the Sessions Judge, Rahimyar Khan, for trial in accordance with law. During the trial, the appellants shall be treated as under-trial prisoners.

Appeal accepted.

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