' ASLAM RIAZ HUSSAIN, J.-This petition by Fazal Din etc. Is directed against the order of the learned Single Judge of the Lahore High Court (Multan Bench), dated 9-7-1983, dismissing their writ petition in a rent matter.
2. Facts of the case, briefly, are that the respondents filed an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, against the petitioners praying for their ejectment from Khasra Nos. 1207/1561, 1277/2 and 871 which, according to them (respondents) the petitioners had taken on lease from them. The grounds on which the respondents based their application were default in payment of rent and personal need of respondent No,
4. The petitioners, however, denied relationship of landlord and tenant between them and the respondents, stating that they had purchased Khasra No, 871 from the respondent, that Khasra Nos. 1207/1561 and 1277/2, were not in their possession. Instead, they stated that they were, in fact, in possession of Khasra Nos. 1256/1265, 1260/1165, 315/9 and 154, which they had purchased from some other persons. The allegations of default and the personal need were also denied.
2. The learned Rent Contoller framed only one preliminary issue on the question of relationship of landlord and tenant and decided it in favour of the petitioners' as a result of which he dismissed the ejectment application. The respondents went up in appeal before the Additional District Judge who remanded the case for ascertaining the question of possession of the parties in respect of the disputed plots of land. On remand the learned Rent Controller appointed a Local Commission who after inspecting the site in question submitted its report. The learned Rent Controller passed an order dismissing the ejectment application on 12-4-1981. After considering the report of the Commission and hearing arguments of the parties.
' The respondents then went in appeal again before the learned Additional District Judge who accepted the same vide a lengthy order dated 7-2-1983, Feeling aggrieved the petitioners filed a writ petition but the High Court after considering their contentions at length, dismissed it by a detailed judgment.
3. The petitioners still not satisfied and now want this Court to go into the question of facts already heard and decided by the Courts below in proceedings under the Rent Restriction Ordinance and by the High Court in its constitutional jurisdiction.
4. After hearing the learned counsel at considerable length we do not think it a fit case for this Court to go into the question of fact already considered by the three Courts. Leave is, therefore, refused.
5. If, however, the question of respondents' title in respect of the land in dispute is involved the petitioners, it is open to them to move the civil Court for that purpose.
Leave refused.
1984 S.0 M R 567 Present: Aslam Riaz Hussain, Muhammad Afzal Zillah and M. S. H. Quraishi, JJ EJAZ HUSSAIN AND ANOTHER-Petitioners versus SAEED AHMAD BUTT AND ANOTHER-Respondents Criminal Petition for Special Leave to Appeal No, 89-R of 1983, decided on 16th November, 1983.
(Against the order of the High Court of Baluchistan, dated 17-8-1983, passed in Criminal Appeal No, 21 of 1979).
Constitution of Pakistan (1973)- -- Art. 185(3)-Criminal Procedure Code (V of 1898), S. 350 (after amendment by Code of Criminal Procedure (Second Amendment) Ordinance (VIII of 1980)-Criminal trial-Witness-Recalling . And reexamination of witnesses-Sessions Judge/Additional Sessions Judge may order re-examination of witnesses and recommence trial but also permissible for him to act on evidence partly or wholly recorded by his predecessor and base his judgment thereon-Opinion of High Court, formed after considering . All relevant factors, that refusal to allow re-examination of witnesses' would not materially prejudice accused-petitioners upheld, in circumstances of case-Held, case not a fit one for grant of leave to appeal.---[Witness-Evidence]. [p. 5681A Prof. Muhammad Hanif Tahir v. The State PLD 1981 SC 106 ref. M. Bilal, Advocate Supreme Court with Khan. Imtiaz Muhammad Khan, Advocate-on-Record for Petitioners.
Nemo for Resp.Ondents. Date of hearing: 16th November, 1983.
' ASLAM RIAZ HUSSAIN, J.-The two petitioners who were under-trial prisoners in a murder case, seek leave to appeal against the order of the learned Acting Chief Justice of the High Court of Baluchistan, dated 17-8-1983.
2. Shorn of unnecessary details the facts giving rise to the petition are briefly, that a case under section , 302/34, P. P. C. Was registered against Ejez Hussain and Afzal Hussain (petitioners herein) on an F. I. R. Dated 19-8-1974, lodged by Saeed Ahmad Butt respondent. The case was finally sent up for trial before Mr. Muhammad Aslam Sessions Judge, Quetta, who framed separate charges against each of the two accused under the above-mentioned sections and the trial was commenced. Out of 13 witnesses sought to be produced by the prosecution only two had been examined when the learned Sessions Judge was transferred and was succeeded by Ms Muhammad Awais Murtaza. The petitioners' counsel moved an application on 15-8-1982, to the effect that the accused-petitioners had engaged a new counsel, therefore, the two witnesses already examined should be recalled and their testimony recorded afresh.. The learned Sessions Judge allowed this application on 4-4-1983 and observed that, in the interest of justice and to give a fair chance to the accused, charges be framed jointly against both the accused and evidence be recorded afresh of the witnesses already examined.
' Feeling aggrieved the complainant challenged this order before the High Court of Baluchistan through a criminal revision which was accepted vide the impugned judgment and the order directing the recall and re-examination of the above-mentioned two witnesses was set aside.
' Hence the present petition.
3. -The learned counsel for the petitioners did not object to framing of the charges against the two accused separately, as he felt that no prejudice had been caused to accused thereby. But he vehemently urged that order of Mr. Awais Murtaza, learned Sessions Judge, Quetta, dated 4-7-1983, had been passed in the interest of justice and should not have been set aside by the High Court. He argued that it was necessary for the learned trial Judge to re-examine the witnesses so that he could personally watch the demeanor of the witnesses so as to be able to assess their testimony correctly.
4. We have carefully considered the above-noted contention but are not persuaded to agree with it. According to section 350, Cr. P. C. As it stood originally only a Magistrate was empowered to act on the evidence recorded by his predecessor. But after the amendment of the said section by Ordinance VIII of 1980, a Sessions Judge/Additional-Sessions Judge, may order re-examination of the witnesses whose testimony has already been recorded and recommence the trial, but it is now also permissible for him to act on the evidence partly or wholly recorded by his predecessor and base his judgment thereon. See Prof. Muhammad Hanif Tahir v. The State (1).
' It is, however, provided that if the High Court is of the opinion that the accused have been materially prejudiced thereby, it may order a new trial or direct that some of the witnesses be examined afresh.
5. In the present case, the High Court after considering all the relevant factors, including the plea that a counsel had been engaged by the accused-petitioners, did not form the opinion that refusal to allow the re-examination of the two witnesses would materially prejudice them (i. e. The accused/ petitioners). After hearing the petitioners' counsel and going through the impugned judgment, we are inclined to agree with the view taken by the learned Judge in Chamber.
' We do not, therefore, consider it a fit case for grant of leave. The petition is consequently dismissed. {{FOOT NOTE}} (1)PLD 1981 SC 106