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Criminal Revision No. 53 of 1981, decided on 20th October, 1981.

--S. 439-A read with S. 410--Penal Code '(XLV of 1860), S.307- Revision (Criminal)--After omission of Chap.- XXI from Criminal Procedure Code trial of accused was to be held in accordance with procedure provided in Chap. XX of Code, necessitating framing of charge and examination of prosecution witnesses afresh but a request of parties such procedure dispensed with the Trial Court proceeded to decide case on basis of evidence already available on file--Even on a revision-petition filed by one of parties, an Additional Sessions Judge directing trial Court to decide case on basis of evidence already on file--However, on conviction, parties in appeal agreeing to remand of case for fresh trial--No prejudice, held, caused to accused, in circumstances nor parties to appeal cued confer jurisdiction on appellate Court to pass an order, having effect of setting aside a lawful order passed in exercise of revisional jurisdiction by a competent Court--Remand order of Sessions Judge set aside and direction issued to decide appeal on merits.

Sh. Khizar Hayat for Petitioner.

Sardar Latif Khan Khosa for Respondent No. 1.

Habib Ahmad Ansari for the State.

Date of hearing: 20th October, 1981.

In this revision petition, Muhammad Jaffar complainant has challenged the order, dated 13-12-1980 passed by the learned Additional Sessions Judge, Sahiwal, whereby the conviction of Zill-e-Hussain respondent No.l under section 307, P.P.C., was set aside and the case was remanded for holding fresh trial.

2. The relevant facts of the case which are necessary for the disposal of this revision petition are that a case under section 307, P.P.C., was registered against respondent No. 1 on 21-3-1969 on the allegations that he had injured the complainant with a shot fired by him with a pistol. Respondent No. 1 was tried in the Court of the Ilaqa Magistrate. The statements of eight P.Ws were recorded and. the prosecution evidence was concluded on 18-2-1971 when respondent No.l absconded. After remaining absent for six years, respondent No. 1 appeared in Court when the trial was resumed. The case against respondent No. 1 was being tried as a warrant case and the procedure prescribed for the trial of warrant cases by Magistrate as contained in Chapter XXI of the Code of Criminal Procedure was being followed when respondent No.l absented during the trial. No formal charge had been framed against respondent No. 1 before his absconsion. When he appeared in Court it was found that the procedure for the trial of warrant cases by Magistrate as contained in Chapter XXI of the Code of Criminal Procedure had been omitted by the Law Reforms Ordinance, 1972. Under the aforementioned Ordinance, it was provided that all such cases in which charge had been framed against the accused the Court would continue to follow the old procedure. As noticed above, no charge had been framed against respondent No.l, before Chapter XXI was omitted from the Criminal Procedure Code. The trial of respondent No. 1 was to be held according to the new procedure. After framing a formal charge against respondent No. 1, prosecution had to examine its witnesses in support of its case. On 6-7-1977, a formal charge under section 307, P.P.C., was framed against respondent No. 1. On 3-10-1979, a request was made both by the prosecution and the defence that the prosecution witnesses need not be re-examined and that the case be decided on the basis of evidence already recorded by the Court. The learned trial Magistrate, however, did not accede to the above request of the parties and directed that the prosecution witnesses be summoned for recording their statements afresh. The petitioner challenged the order of the learned Magistrate in revision before the learned Additional Sessions Judge, Sahiwal who after relying non the judgment of this Court in the case of Muhammad Riaz v. The State P L D 1979 Lah. 155 accepted the revision petition and directed the learned Magistrate to decide the case on the basis of evidence already available on the record. The learned trial Magistrate convicted respondent No. 1 under section 307, P.P.C. on the basis of the aforementioned evidence vide his order, dated 17-9-1980 and sentenced him to four years R.I. and a fine of Rs.1,000 and in default of payment of fine to further suffer R.I. for six months. Respondent No. 1 filed an appeal against the order of conviction which, as noticed above, was allowed by the learned Additional Sessions Judge on the ground that the learned trial Magistrate should not have based his order of conviction on the evidence recorded before the charge was framed and that he should have followed the new procedure and re-examined the prosecution witnesses. The case was remanded for fresh trial.

3. Learned counsel for the petitioner has contended that the impugned order is illegal and without jurisdiction as the learned Additional Sessions Judge has reversed the order passed by his colleague Mr. Sarfraz Arshad on 18-12-1979 whereby the learned trial Magistrate was directed to dispose of the case on the basis of evidence already recorded by him because both the parties had agreed that the prosecution witnesses need not be re-examined and that the case be decided on the basis of evidence already available on the file. As the aforementioned order was passed in exercise of revisional jurisdiction by the learned Additional Sessions Judge, it could not be reversed or modified in appeal.

4. Learned counsel, who has appeared on behalf of respondent No.l has stated that the learned trial Magistrate had acted illegally by relying on the evidence recorded before the charge was framed against respondent No. 1 and as such, the learned Additional Sessions Judge was justified in remanding the case for fresh trial. He has also pointed out that the order of remand was passed by the learned Additional Sessions Judge as both the parties had agreed that the trial of respondent No. 1 had not been held in accordance with law.

5. I have heard the arguments of the parties counsel. There is no doubt that after the omission of Chapter XXI from the Criminal Procedure Code, 1898 the trial of respondent No. 1 was to be held in accordance with the procedure provided in" Chapter XX of the Code according to which after framing a charge against respondent No.l, the prosecution had to be called upon to produce evidence in support of the charge, but the above procedure was not followed because a request was made both on behalf of the prosecution and the accused that the case be decided on the basis of the evidence already available on the file. There was nothing illegal in such a request being made to the learned Magistrate and the learned Additional Sessions Judge rightly allowed it and directed the trial Magistrate to proceed to decide the case on the basis of evidence already available on the file in view of the statements of the parties. Respondent Ao. 1, was not prejudiced at the trial in any manner by following the aforementioned direction of the learned Additional Sessions Judge. The learned trial Magistrate had not violated any provision of law by deciding the case on the basis of evidence already recorded by him and as such, there was no justification for the learned Additional Sessions Judge to set aside the order passed by him and issue direction to him to hold a fresh trial. The controversy as to which procedure was to be followed at the trial had been resolved by order, dated 18-12-1979 passed by the learned Additional Sessions Judge who had rightly followed the decision of this Court referred to above and had directed the learned trial Magistrate to decide the case on the basis of evidence already recorded by him. It was not legally possible for the learned Additional Sessions Judge who had passed the impugned order to re-open the question which had already been finally settled. The mere fact that the parties had agreed to the remand of the case for fresh trial would not confer jurisdiction on the learned Additional Sessions Judge to pass an order which would have the effect of setting aside a lawful order passed in exercise of revisional jurisdiction by a competent Court.

6. For the foregoing reasons, I accept this revision petition and set aside the impugned order. Learned Sessions Judge, Sahiwal is directed to hear the appeal of respondent No. 1 himself or entrust it to some other Additional Sessions Judge for its disposal on merits.

S. G. D. Revision accepted.

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