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Criminal Revision No.433 of 1976, decided on 3rd August, 1987.
---Ss.435 & 439--Trial Magistrate committing procedural illegalities in trial of case-Additional Sessions Judge, in appeal against conviction, without discussing evidence on record acquitting accused by giving them benefit of doubt--Effect--Held: Additional Sessions Judge after recording a finding that the procedure of trial followed by Magistrate was not legal, should have remanded the case for fresh decision according to law--Case remanded by High Court to Trial Court for fresh decision in accordance with law from the stage of close of prosecution case.
Mian Abdur Rashid for Petitioner.
Zafar Iqbal Chaudhry for Respondents Nos.1 to 7.
Date of hearing: 3rd August, 1987.
In brief the facts of this case are that Muhammad Sarwar and his six co-accused were prosecuted in a case under section 447/149/148, PPC. They were convicted and sentenced by a Magistrate 1st Class, Okara vide judgment' dated 25-10-75, to suffer 3 months' R.I. and fine of Rs.100 or in default one month R.I. each on both the charges. Muhammad Sarwar etc. accused challenged their conviction and sentence before learned Additional Sessions Judge-III, Sahiwal (now District Okara). Their appeal was accepted vide impugned judgment dated 28- 1-1976. In para.8 of the impugned judgment, the learned Additional Sessions Judge held that "the learned trial Magistrate has followed the wrong procedure while trying this case".. It was noted by the lower appellate Court that the statement of Nawab Din accused was neither signed by the Magistrate nor by the accused. It was further observed that the learned Magistrate recorded two statements of the said. Nawab Din under section 342, Cr. P . C . and signed both the statements. He further stated that the said two statements had the. thumb-impressions of Muhammad Din, a co-accused of Nawab Din. Another procedural defect noted by the lower appellate Court was that in the interim order sheet, the learned Magistrate did not mention the framing of charge or that there was any cutting in the charge sheet. Both the learned counsel appearing for the parties conceded that the learned trial Magistrate committed procedural illegalities in the trial of the case against the accused.
In para.9 of the impugned judgment it was held that "it is duty of the prosecution to prove its case beyond all doubts, but the prosecution case is not free from doubt. I give the benefit of doubt to the appellants and accept their appeal"
From a perusal of the impugned judgment I find that the learned Additional Sessions Judge did not at all discuss the evidence on record. This fact was again conceded by both the learned counsel appearing for the parties.
2. It is argued by learned counsel for the petitioner that in view of the findings recorded in paragraphs 8 and 9 of the impugned judgment, the case should have been remanded to the trial Court for decision according to law and the accused should not have been acquitted. The learned counsel for the accused-respondents concedes this proposition but vehemently contends that this is an old case and as such, instead of remanding the case to the trial Magistrate, the evidence should be examined by this Court in exercise of revisional jurisdiction.
I have considered the contentions on behalf of the parties. The learned Additional Sessions Judge after recording a finding that the procedure of trial followed by the trial Magistrate was not legal, should have refrained from observing that the prosecution case was not free from doubt. The procedure followed during the trial being not legal, the case should have been remanded to the trial Court for fresh decision according to law. Secondly, the lower appellate Court did not give any finding about the evidence on record of the case. I do not think it proper to appreciate evidence without having the benefit of the views of the lower appellate Court. It was suggested by the learned counsel for the respondents that the case be remanded to the lower appellate Court for decision of the appeal on merits after considering the evidence on record. This suggestion cannot be accepted in view of the fact that admittedly the procedure adopted during the trial was not legal.
3. In view of the above discussion, this revision is accepted. The impugned judgment dated 28-1-1976 is set aside and the case against Muhammad Sarwar etc. accused is remanded to the trial Court for fresh decision according to law.
4. The parties are directed to appear before learned Sessions Judge, Okara on 1-9-1987 who will entrust the case for trial on merits to a Magistrate of competent jurisdiction.
As the illegalities in the trial occurred after close of the prosecution evidence, it will not be necessary for the trial Court to recall any prosecution witness in this case. The trial Magistrate will record the statements of the accused under section 342, Cr.P.C. afresh and from that stage proceed further to hold proceedings in the case. If requested, the accused will be allowed to produce evidence in defence.
K . B . A . / A-150/ L Petition accepted.
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