Ali Bahadar son of Jamal Shah was tried under section 302/114/34, P. P. C. By the learned Additional Sessions Judge, Bahawalnagar for causing murder of Ahmad son of Mamoon, resident of village Dhab Said Muhammad, Police Station Minchinabad, District Bahawalnagar. The learned trial Judge vide his judgment dated 16th February, 1981 convicted him under section 326, P.P. C. And sentenced him to imprisonment for life and fine of Rs. 3,000 in default of its payment to undergo R. I. For one year.
2. Ali Bahadur assailed the aforementioned order in appeal which was admitted to regular hearing on 28 March, 1981 and is pending decision in this Court since then. The appellant also moved an application seeking suspension of his sentence and release on bail pending decision of the appeal.
3. Learned counsel for the appellant while arguing in support of the above-noted application raised objection to the competency of the trial held by learned Additional Sessions Judge, Bahawalnagar resulting in appellant's conviction. It was submitted that the entire trial bad vitiated and addressed elaborately on this point.
4. Learned counsel for the appellant stated that in the instant case the learned Sessions Judge, Bahawalnagar recorded the entire evidence of the prosecution as well as of the defence but entrusted the case to the learned Additional Sessions Judge, Bahawalnagar for disposal as the former proceeded on earned leave for two months. The impugned judgment was passed by the learned Additional Session Judge, Bahawalnagar. It was contended that the learned Additional Sessions Judge had no jurisdiction to decide the case in which he did not record evidence as his predecessor did not cease to have jurisdiction for the trial of the case by proceeding on leave.
Learned counsel referred to section 17 (4), Cr. P. C. And con--tended that when a Sessions Judgeth was unavoidably absent or incapable of acting as Sessions Judge he could make provision for the disposal of any urgent application by the Additional Sessions Judge or even the District Magistrate.
It was submitted that in the instant case neither the learned Sessions Judge could assign the case to the learned Additional Sessions Judge nor the latter could assume jurisdiction and learned counsel referred to provisions of 528. Cr. P. C. And contended that the learned Sessions Judge, could withdraw the case from any Additional Sessions Judge before the commencement of trial and not otherwise He also referred to the provisions of amended section 350, Cr. P. C. And stated that no doubt the successor Sessions Judge could proceed with the trial from where his predecessor had left the trial and pass judgment on the evidence recorded by his predecessor. It was pointed out in the instant case the learned Sessions Judge only proceeded on leave and had not ceased to exercise jurisdiction permanently so as to enable the succeeding Judge to resume trial where the former had left. It was contended that the learned Additional Sessions Judge, Bahawalnagar was not competent to assume jurisdiction and pass the impugned judgment. It was lastly argued that in any case the impugned judgment of the learned Additional Sessions Judge, Bahawalnagar caused serious prejudice to the case of the appellant and on that ground alone this Court in exercise of the powers under section 350, Cr. P. C. Could set aside appellant's conviction and order re-trial of the case.
5. Learned counsel for the State assisted by the learned counsel for the complainant, on the other hand, stated that the Additional Sessions Judge, Bahawalnagar had the jurisdiction to pass the impugned judgment because his predecessor had ceased to exercise jurisdiction as such there was no irregularity committed in the trial of the case entitling the appellant to claim re-trial. It was pointed out that the entire evidence was recorded by the learned Sessions Judge and the learned Additional Sessions Judge had only pronounced the judgment on the evidence already recorded. It was next argued that no prejudice was caused to the appellant nor the trial had vitiated so as to justify re-trial of the case. The contentions raised by learned counsel for the appellant against the judgment of the trial Court showing prejudice could validly be agitated at the time of final disposal of the appeal on merits.
6. For proper appreciation of the point raised by learned counsel for the appellant, the reproduction of relevant provisions of the Criminal Pro--cedure Code is necessary. Section 350, Cr. P. C. Provides: "350. Conviction on evidence partly recorded by one Presiding Officer and partly by another.---(1)
Whenever any Sessions Judge or Magistrate, after having heard and recorded the whole or any part of the evidence in an inquiry or trial, ceases to exercise jurisdiction therein, and is succeeded by another Sessions Judge or Magistrate, who has and who exercises such jurisdiction, the Sessions Judge or Magistrate, so succeeding, may act on the evidence so recorded by his predecessor or partly recorded by himself or he may re-examine the witnesses and recommence the inquiry or trial : Provided that---
(a) where the conviction was held before a Sessions Judge, the High Court, and
(b) where the conviction was held before a Magistrate, the High Court or the Court of Session. may whether there be an appeal or not, set aside any conviction passed before whom the conviction was held, if such Court is of opinion that the accused has been materially prejudiced thereby, and may order a new inquiry or trial.
(2) Nothing in this section applies to cases in which proceedings have I been staved under section 346 or in which proceedings have been submitted to a superior Magistrate under section 349.
(3) When a case is transferred under the provisions of this Code from one Magistrate to another, the former shall be deemed to cease to exercise jurisdiction therein, and to be succeeded by the latter within the meaning of subsection (1).
Section 528, Cr. P. C. Relevant to the extent is reproduced here--under :- "(1) Any Sessions Judge may withdraw any case from, or recall any case which he has made over to, any Assistant Sessions Judge sub--ordinate to him ; (1-A) At any time before the trial of the case or the hearing of the appeal has commenced before the Additional Sessions Judge, any Sessions Judge may recall any case or appeal which he has made over to any Additional Sessions Judge ; (1-B) Where a Sessions Judge withdraws or recalls a case under subsec--tion (1) or recalls a case or appeal under subsection (1-A), he may either try the case in his own Court or hear the appeal himself, or --make it over in accordance with the provisions of this Code to an--other Court for trial or hearing, as the case may be ; (1-C)
Section 17 (4) reads as under :-- "The Sessions Judge may also when he himself is unavoidable absent or incapable of acting make provision for the disposal of an urgent application by an Additional or Assistant Sessions Judge or, if there be no Additional or Assistant Judge, by the District Magistrate, and such Judge or Magistrate shall have jurisdiction to deal with any such application."
7. The perusal of the above provisions of law makes it clear that the provisions of section 528, Cr. P.
C. And section 17 (4), Cr. P. C. Are not attracted to the circumstances of the instant case. Section 528, Cr. P. C. Empowers the learned Sessions Judge to withdraw any case at any time before the trial of the case has commenced before the learned Additional Sessions Judge. In the present case the learned Sessions Judge did not withdraw the case from Additional Sessions Judge rather recorded the evidence himself and directed to put up the case before Additional Sessions Judge for decision. Similarly section 17 (4), Cr. P. C. Contemplates provision for disposal of urgent applications by the Additional Sessions Judge when the Sessions Judge is unavoidably absent or incapable of acting The only relevant section in the matter is section 350, Cr. P. C. Which envisages that whenever any Sessions Judge after having heard and record--ed the whole or any part of the evidence in a trial, ceases to exercise jurisdiction therein, and is succeeded by another Sessions Judge, of concurrent jurisdiction, the Sessions Judge so succeeding may act on the evidence so recorded by his predecessor, and decide the case.
8. It is, therefore, imperative to interpret the words "cease to exercise jurisdiction therein" employed by the Legislature in section 350, Cr. P. C. The word "cease" was defined by Jeorge Grabb in his book titled "English Synonyms" to mean "to discontinue". Similarly, in "Black's Law Dictionary" the word "cease" has been shown to mean discontinuance or suspension''. In Kudratullah v. Emperor (13 Cr.L J 218) Division Bench of Calcutta High Court interpreted the words "cease to exercise jurisdiction therein" occurring in section 350, Cr. P. C. To imply cease to exercise---jurisdiction in the inquiry or trial and not in a particular post. It is, there fore, clear that the words "ceased to exercise jurisdiction" would imply discontinuance of work. In the instant case the learned Sessions Judge proceeded en two months leave and directed the case to be put up before the learned Additional Sessions Judge for decision. The Additional Sessions Judge was also directed by the High Court on 3rd January, 1981 to act as a Sessions Judge during the period, the learned Sessions Judge proceeded on leave. The Additional Sessions Judge therefore, had juris-e diction to decide the case in view of the amended provisions of section 350 Cr. P. C.
9. The last contention of the learned counsel that in any case serious prejudice was caused to the appellant by the decision given by the learned Additional Sessions Judge in his case and this Court is competent to set aside order of conviction and direct re-trial under section 350, Cr. P. C. All the arguments raised by the learned counsel for the appellant on this point can adequately be appreciated with reference to evidence on the record, which necessarily would be examined when main appeal is heard on merits.
10. In this view of the matter preliminary objection raised by the learned counsel for the appellant regarding the competency of Additional Sessions Judge to decide the matter is overruled.
11. There is no ground for suspension of sentence of the appellant at this stage because the contentions raised by learned counsel for the appellant require re-appraisal of evidence which cannot be undertaken at this stage. Consequently, his application for suspension of sentence is dismissed.
12. This appeal pertains to year 1981 and there is hardly any reason to accelerate its hearing, let it come for hearing in due course, but the appellant may repeat his application for suspension of sentence, in case the appeal is not heard by the end of this year.