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Criminal Appeal No. 51 of 1956, decided on 21st May 1956.

(On appeal from the judgment and order of the High Court of West Pakistan at Lahore, dated the 20th October 1955, in. Criminal Appeal No. 939 of 1954).

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---[as amended by Criminal Law Amendment Act (XXXVII of 1953)], S. 4 (3)(4) & (S)‑Trial proceeding before ordinary Magistrate after 17‑11‑53‑Proceedings without jurisdiction‑Evidence recorded' cannot be read as evidence in case by Special Magistrate after transfer of case to him‑Retrial ordered.

Shamim Hussain Kadri, Advocate Supreme Court instructed by Zahir Abbas, Attorney for Appellant.

S. A. Mahmud, Advocate Supreme Court instructed by Ijaz Ali, Attorney for the State.

Date of hearing : 21st May 1956.

‑This appeal is by special leave of this Court. The appellant Mushtaq Muhammad Khan was the Secretary and Fee Clerk of the Marketing Committee, Jahania in the District of Multan, and in that capacity he was charged under section 409 of the Pakistan Penal Code for criminals breach of trust by misappropriating a total sum of Rs. 708, which he was alleged to have realised from one Fazal Muhammad, the Manager of the Deen Factory, Jahania, and not redetect to the funds of the Market Committee Office. He was tried on the said charge before the Sub‑Divisional Magistrate of Khanewal, who ordinarily exercises jurisdiction over Jahania. The trial proceeded before him beyond the 17th November 1953 and he recorded the evidence of three defence witnesses on the 28th December 1953. The Criminal Law Amendment Act (Act XXXVII) of 1953 came into force on the 17th of November 1953, by virtue of which jurisdiction of ordinary Magistrates to try a: certain class of cases, to which the present case belongs, was. by section 4, subsections (3) and (4) taken away from them and vested in Special Judges. Sometime later the Additional District Magistrate of Multan was appointed Special Judge for the area. The case then stood transferred under section 4 before him and he heard arguments of both sides, on the record of the evidence and orders made by the trial Magistrate up to 28th December 1953. The Special Judge convicted the appellant under section 409 of the Pakistan Penal Code and sentenced him to two years' rigorous imprisonment and as fine of Rs. 708. On appeal before the High Court the conviction of and the sentence on the appellant were farmed. Against this judgment of the Lahore Bench of the West Pakistan High Court the present appellant has preferred this appeal.

On behalf of the appellant it .was argued before us that the Sub‑Divisional Magistrate having lost jurisdiction over the case by virtue of the Criminal Law Amendment Act with effect from the 17th of November 1953, all subsequent proceedings before him including the defence evidence recorded by him were vitiated; that the Special Judge ought to have examined the defence witnesses himself before hearing arguments and that the appellant by his omission to do so was denied the right of having the defence case heard by the Special Judge.

There is much force in this argument, to which the learned Advocate appearing on behalf of the respondent had not anything substantial to say in reply.

We, therefore, hold that the proceedings on and after the 17th November 1953 in the case were vitiated, when the Sub‑Divisional Magistrate became functus officio so far as this case was concerned, and lost seisin of it.

We, therefore, set aside the conviction and sentence passed on the appellant and direct that he be retried by the Special Judge from the stage; after which the trial has been vitiated from the 17th November 1953.

Appeal accepted. Retrial ordered.

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