1. ' Complainant Muhammad Saleh son of Naubat Khan Zardari who had lodged F. I. R. On 30-6-1969 at Police Station, Shandadpur in the Criminal Case, State v. Ghulam Qadir and others under sections 332, 109, 147, 148/149, P. P. C. In which Respondents Nos. 1 to 10, are accused, has filed revision petition against the order of the Additional Sessions Judge, Sanghar dated 19th December 1958 whereby the trial of the case is to proceed de novo.
2. It is contended by the applicant that the trial in the Court of Session started on 30-7.1969 and besides him (complainant) eye-witnesses Muhammad Razi, Muhammad Sadik and Attaullah were examined and their depositions recorded. Only the evidence of formal witnesses remained to be recorded. The case is already 10 years old and if the trial is to proceed de novo it will be further protracted. One of the accused Ghulam Qadir died during the pendency of of the case and the rest of them are on bail. The learned Additional Sessions Judge had been posted as such in Sanghar on transfer and the evidence of witnesses had been recorded by his predecessor.
3. ' The impugned order reads as under :- "All accused present on bail. Mr. Faiz Muhammad Ex-P. P. Present. Defence counsel Messrs Ghulam Nazi Memon, Mir Muhammad Memon, Pir All Nawaz also present. Mr. Abdul Salam Ansari, Advocate for complainant also present. Heard the Advocates on the point of de novo trial. It is hereby ordered that trial to proceed de novo, let all P. Ws. Be summoned. Hearing 29-1-1979."
4. ' It is obvious from the perusal of the order that although the learned Additional Sessions Judge passed it after hearing the A. P. P. The Advocate for complainant and defense counsel, he did not mention any reasons for his decision, and therefore, it is not a "speaking" order. The learned counsel who argued the matter before this Court and some of whom had argued before the learned. Judge are of the opinion that the order was briefly recorded in all probability as it was in the opinion of the learned Judge the only order that could be passed.
5. ' The learned counsel for the applicant has relied on the judgment in Criminal Revision No, 17 of 1979 (reported in PLD 1980 Kar. 96) in which the decision of a Sessions, Judge not to hold a de novo trial was maintained and revision application filed on behalf of the State was dismissed. A copy of the judgment had been forwarded to all the District Sessions Judges in Sind for information and necessary action. The endorsement mentioned that his Lordship the Chief Justice had observed that the Sessions case should be decided by the Successor Sessions Judge from the stage the proceedings were left by his predecessor. A Photostat copy showing that the copy of the circular endorsement had been sent to the Additional District Sessions Judge, Sanghar on 12-11-1979 has been placed on record. The learned Additional Sessions Judge had passed the impugned order on 19-12-1978 a long time before the copy of the judgment in Criminal Revision 17 of 1979 was brought to his notice.
6. ' At the time of passing of the impugned order the position was that unlike the provisions of section 350, Cr. P. C. Which applied to trial before Magisterial Courts there was no such provision with regard to the Sessions trial. In the precedent case of decision of Criminal Revision No, 17 of 1979 the contention that the principle, "He alone may decide, who had heard the evidence", could not be construed as barring consideration of evidence recorded by predecessor Sessions Judge by the Successor Sessions Judge, as there was no express prohibition in the Statute was considered and the decisions were cited in which it was held that if a Sessions Judge acts upon the evidence recorded by his predecessor no question of jurisdiction was involved and the infirmity if any was curable under section 537, Cr. P. C. It was also contended in that case that the framers of the law could never contemplate a Sessions trial being protracted for months and years together. The general principle that one who bears the evidence alone may decide the case, was considered by the learned Chief Justice in the precedent case and it was observed as under :- "It is true that when a witness appears before a trial Court, the Court has the opportunity to look to the manner of the witness, his agitation, his doubts, his variations of language and his confidence, but if a trial Judge finds something special to note about the demeanor of the witnesses about which he has got to say something in the judgment, be is required under section 363, Cr. P. C. To make a note of the same on the record at the end of the evidence or as early as possible. In the absence of a note to that effect, he cannot be permitted to rely on his recollections at a later period. Apparently any other Sessions Judge, who proceeds with the case at a later stage and has to write the judgment will, therefore, have no difficulty in a proper appreciation of the evidence. If for any other reasons, there is any palpable miscarriage of justice, the error, if any, can always be corrected by the appellate or the provisional Court."
7. Section 350 of the Code of Criminal Procedure has been amended by the Code of Criminal Procedure (Second Amendment) Ordinance, 1980 which no makes Sessions trial within the purview of the aforesaid section and discern tin been given to the succeeding Judge either to act on evidence record by his predecessor or to rehear and examine witnesses and recommence the trial.
8. There is the further safeguard provided that a conviction based o evidence not only recorded by the Sessions Judge before whom the convict tin was held, can be set aside by the High Court if that Court is of the opinion that the accused has been materially prejudiced. The second amendment of section 350 of the Criminal Procedure Code has no effect on the impugned order but for the reasons given it was a matter for exercise of discretion by the learned Judge whether he should hold de novo trial or not, and since he had the benefit of hearing the arguments on behalf of the Stat and on behalf of the defense he should have given reasons for his decision which was open to revision by superior Courts. The impugned order, therefore, cannot be sustained and is set aside.
9. The learned Addition Sessions Judge, may rehear the arguments and exercise his discretion after taking into consideration all the facts including the one that there has already been too much delay in finalizing and deciding the case.