Find a Lawyer

Criminal Revision Petition No. 311 of 1957, decided on 7^th January 1958, against the order of Fazal Ilahi, Additional Sessions Judge, Lahore, dated the 10th April 1957, modifying that of Captain M. A. Majid, Magistrate 1st Class, Lahore, dated the 30th January 1957.

Criminal Procedure Code (h of 1898), S. 350‑Accused choosing only to re‑cross‑examine particular witnesses cannot be allowed subsequently to go back on his choice and have a complete re‑hearing of the case‑Witnesses not examined‑in‑chief‑Effect.

An accused person who, on transfer of the case, had, in the first instance, explicitly confined himself to the rig lit of re -cross‑examination of particular prosecution witnesses, cannot be allowed to go back on his option and to ask for a complete re‑hearing of the case.

Ghulam Rasool v. The Crown P L D 1954 Lah. 332 ref.

In Revision in the absence of any prejudice to the accused, a trial cannot be set aside merely because the prosecution witnesses were cross‑examined by the accused as desired by him, without being first examined‑in‑chief.

Hamid‑ud‑Din for Petitioner.

Mushtaq Ahmad A. A. G. for Respondent.

Date of hearing: 3rd January 1958.

This is a petition for revision of the order of Ch. Fazal Ilahi, Additional Sessions Judge, Lahore, dated the 10th of April 1957, upholding the conviction of the petitioner, who had been convicted by Capt. A. Majid, Magistrate 1st Class, Lahore, under section 324, P. P. C., but reducing his sentence from two years to six months' rigorous imprisonment.

2. Apart from addressing arguments on the merits, Mian Hamid‑ud‑Din raised 4 legal ground, The case was first tried by Mr. Muhammad Shafi, Cantonment Magistrate, Lahore, but when the prosecution evidence had been closed and defence was about to be produced; the petitioner obtained a transfer of the case, which was then entrusted to Capt. A. Majid. On the 9th of January 1957, the petitioner was asked, as required by section 350, Criminal P. C., whether he wished for a de novo trial. He replied that he accepted the previous proceedings and only wished to further Cross -examine the eye‑witnesses. His statement runs:‑

The eye‑witnesses were summoned accordingly for the 16th of January, but on that date a written application was presented by counsel for the petitioner alleging that in making his previous statement the accused had intended to ask for the complete re‑hearing of the witnesses in question. The learned Magistrate passed the following order

"The accused only wanted to re‑cross‑examine the P. Ws. mentioned by him in his statement recorded under section 350, Criminal P. C. He did not state that the P. Ws. be re‑examined and re‑cross‑examined. All he stated was that he wanted to re‑cross‑examine them. The application is filed."

3. According to Mian Hamid‑ud‑Din, even if the state ment made by the petitioner on the 9th of January 1957 be strictly construed, he was still entitled on the 16th of January to demand that the eye‑witnesses be not only further cross -examined but also again examined in chief. In support of this contention he relied on Ghulam Rasool v. The Crown (P L D 1954 Lah. 332), a Division Bench decision of this Court, in which it was held by Shabir Ahmad, J.:‑

"In the present case the accused had wanted merely to cross‑examine the witnesses and as, for the reasons already given, I am of the view that it was open to the accused to limit the rehearing that he claimed under section 350, of the Code of Criminal Procedure, I do not think that any illegality had been committed by the Magistrate.

Even if the accused had, in the first instance, claimed a rehearing, it was open to him at a subsequent stage to be content only with cross‑examination of all or any of the witnesses in which case also it is clear that no illegality would be committed if the Magistrate carried out the wishes of the accused * * * * *.

My answer to the question mentioned in the referring order, therefore, is that when an accused person exercises his right under section 350, of the Code of Criminal Pro cedure, it is open to him to demand only the cross -examination of witnesses already heard by the predecessor of the Magistrate before whom the case is pending and if the Magistrate agrees to such a request, no illegality is committed."

The above finding though with great respect I am in full agreement with it, does not help the petitioner in the present case, since there is a substantial difference in principle between allowing an accused who has asked for the complete re‑hearing of witnesses, subsequently to confine himself to their cross‑examination, and the converse case of allowing him to go back on the option originally exercised and ask for a complete re‑hearing in spite of his having in the first instance explicitly confined himself to the right of re‑cross‑examination. More to the point is the following remark of Jan, J. in the above ruling:‑

"I feel that much can be said for the opposite view that, in the absence of any prejudice to the accused, a trial should not be set aside merely because the prosecution witnesses were cross‑examined by the accused, as desired by him, without being first examined‑in‑chief."

In the present case, it cannot possibly be held that the petitioner was prejudiced by the refusal of the learned Magistrate to allow him to go back on the option already exercised on the 9th of January 1957. The provisions of section 350, of the Code of Criminal Procedure were fully complied with, and the petitioner could not, as a matter of right, demand to be allowed a second option.

4. I accordingly hold that the objection raised by Mian Hamid‑ud‑Din is without substance, and as I find no reason to interfere on the merits of the case, the petition stands dismissed.

A. H. Petition dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.