The fourteen petitioners along with one Nasrullah were convicted by the order of Raja Muhammad Ayyub Khan, a Magistrate exercising powers under section 30 of the Criminal Procedure Code, on 27th of April 1964, under sections 148 and 307/149, P. P. C. and were sentenced to undergo rigorous imprisonment for one year each on the first count and three years' rigorous imprisonment each on the second. On appeal, Mr. K. M. A. Samdani, the learned Sessions Judge, Sialkot, found that provisions of section 191 of the Criminal Procedure Code had not been complied with in respect of Buta and Ghulam i Muhammad petitioners who were not initially challaned by the police but were summoned by the learned Magistrate during the trial. The leamed Sessions Judge found that the trial had been vitiated because of the omission of the learned Magistrate to comply with the above provisions of law. He, therefore, allowed the appeal, set aside the conviction of all the appellants before him and ordered the retrial of all the accused in view of Pokhar Das Ganga Ram v. Emperor (1).
The case was then heard by Mr. Saeed Iqbal Shami. During this trial, Nasrullah the co-accused of the petitioners died. The evidence had been recorded afresh and the petitioners after the conclusion of their trial were convicted under sections 148 and 326/149, P. P. C. On both the counts they were awarded the same term of imprisonment as in the first trial. Their appeal was dismissed by Sh. Bashir Ahmad, learned Additional Sessions Judge, Sialkot.
3. A preliminary legal objection has been raised by Mr. M. A. Bajwa, the learned counsel for the.petitioners. He has invited my attention to the judgment of Mr. Saeed Iqbal Shami, wherein, the learned Magistrate in giving the narration of facts in para. 5 of his judgment has relied upon the statement of Muhammad Hussain, the first informant, dated 2nd of October 1963, which he had made in the Court of Raja Muhammad Ayyub Khan during the first trial. The objection of the leamed counsel is that after a retrial had been ordered, the evidence recorded by the first Magistrate had ceased to be legal evidence in the subsequent trial and could not be made use of except as a previous statement on the basis of which a witness could be cross- examined. The learned counsel in this case cited two authorities, namely, The State v. Bashir Ahmad (2) and Badiur Rehman and others v. The State (3). The first authority deals with section 350, Cr. P. C. and does not apply to the facts of this case. In the second authority, it was observed by the Dacca High Court that a case of retrial is not covered by section 350, Cr. P. C. Both these authorities are not directly in point. It is, however, clear that when a Court passes an order of retrial, the proceedings begin afresh and it will be legitimate to presume that the previous proceedings are washed off. It is a cardinal principle of law that a judgment must be delivered by a Judge who has heard the evidence. See Queen v. Rughoo Nath Das (4).
4. The learned counsel on both sides were not able to cite auy direct authority on this point. I have, however, been able to lay hands on a Single Bench case decided by Muhammad Jan, J. namely, Said Muhammad and others v. The Crown (5) which supports the contention raised by the learned counsel for the petitioners. In this case, a retrial has been ordered by the learned Sessions Judge but the learned Magistrate in view of the statement of the accused that he did not want the witnesses to be resummoned, proceeded with the matter and convicted and
(2) PLD 1960 Kar. 64
(4) 23 L R Cr. 59 sentenced the accused. Their appeal was dismissed by the learned Sessions Judge. On revision it was held that section 350, Cr. P. C. had no application to the case of a retrial. His Lordship held that the trial being vitiated, the evidence recorded in that trial could not legally form the basis of a conviction.
5. I have quoted above the view of the Lahore High Court. The Calcutta High Court has also held in Sasadhar Sarkar v. The State (1) that section 350, Cr. P. C. does not apply to the cases of retrial. It was however, held by our Supreme Court in Mrs. Akhtar Mwntaz v. The State and others (2) that the accused has a statutory right under section 350, Cr. P. C. to recall and re-examine all witnesses even if retrial had been ordered only from a particular stage. Section 350, Cr, P. C. was amended by West Pakistan Act XVII of 1964 whereby the right of the accused to ask for a de novo trial or transfer of case was taken away. The question whether or not section 350, Cr. P. C. is applicable to the cases where retrial has been ordered is, therefore, now only of academic nature so far as the Courts in this country are concerned. Since in the case before me no stage had been fixed at which the retrial was to start the whole trial had to be commenced from the beginning as it was done, but unfortunately the learned Magistrate placed reliance upon the evidence which could not have been utilised after the retrial.
6. In my view the evidence recorded in the previous trial could not be read as evidence in the present case even under any of the provisions of the Evidence Act. The previous statements made in the same case or at a previous stage of a same case are relevant if a witness is not to be found for reasons mentioned in section 33 of the Evidence Act, but there is no section of the Evidence Act which says that a previous statement made in the first trial can be used as a substantive evidence in the second trial. It was held in In re: K. K. Umar Haji and others (3) that the transfer of a statement of a witness made at the previous trial during the proceedings of the de novo trial without the witness having been examined de novo, was a procedure which vitiated the trial notwithstanding the consent of the accused to the adoption of such a procedure.
7. It is submitted that Muhammad Hussain, the first informant had appeared as a prosecution witness during the second trial but the learned Magistrate referred to his previous statement which had ceased to have any probative force except for the purposes of contradiction under section 145 of the Evidence Act. The objection raised by the learned counsel in my view, has force and is hereby sustained. The proceedings, are vitiated because of the use of the statement of Muhammad Hussain made at the previous trial and the conviction and sentence consequently become illegal.
8. The question is as to whether I should remand this case for retrial. The occurrence took place on 16th of August 1963, [1] on account of a dispute over water and there was a fight between Zafrullah the complainant party and the accused party during which some of the accused also received injuries. The petitioners and their a e co-accused Nasrullah who is no longer in this world, were con- Ataullah victed on 27th of April 1964. The appellate Court ordered their Sajjad, J retrial on 16th of September 1964. For about two years the de novo proceedings did not start and the second trial actually finished on 29th of October 1970. They were enlarged on bail by the appellate Court but their appeal was dismissed on 13th of January 1971. Since then they are in Jail except Zafarullah, Buta Mustafa Muhammad Alam son of Shah Muhammad, Barkat son of Shah Din, Safdar and Sadiq Masih who were ordered to be released on bail by this Court by order dated 9th of February 1971. It is, therefore, clear that the case started in 1963 and that after the order of retrial the petitioners were kept waiting for the proceedings to start for two years.
9. The state of evidence is also not very satisfactory, lt was the case of the first informant Muhammad Hussain that some members of the accused party had approached him at about peshiwela to give up the water when the complainant party had still 15 to 20 minutes time to irrigate their land. The members of the accused party went to the village and brought some other persons with them. Realising at the trial that during this interval 15 to 20 minutes must have expired, Muhammad Hussain changed his position and said that their turn was to enure till sun set. This was not the case unfolded in the first information leport and it is definitely an improvement. There is no warabandi in the village and both the Courts below have not squarely adverted to the question as to who was in possession of water at the time of the occurrence. They are perhaps impressed by a very large number of injuries which the complainant side received as compared with the smaller number of injuries received by the accused side. The first informant has tried to improve his story because he realised that by the time the fight started, the water vested in the accused party.
10. Then there is the inordinate delay in lodging the F. I. R. which was based on the statement of Muhammad Hussain made to the Sub-Inspector on 17th of August 1963, at 9 a.m. The accused had reached the hospital for medical examination at about 7 a.m. on the day of the occurrence i.e. 16- 8-63 and two of them had after their examination left the hospital. The doctor whose letter Exh. P. N. to the police informing them that the two accused had left the hospital but there is nothing on the record to show that any information was sent to the police during the night about the presence of the injured P. Ws. in the hospital. No police officer visited the hospital during the night although the injured persons from the complainant side had been brought to the hospital at about 9 p.m. and their medical examination continued till 1-25 a.m. Delay in lodging the F. I. R. therefore, remains unexplained and since a very large number of persons had been involved in this case, there is no guarantee that all of them B participated in the commission of the offence. There is likelihood, of false implication of at least some of the accused.
(VOL. V
11. In view of the inordinate delay which this case took to conclude itself and the state of evidence I do not think that this is a case for ordering retrial. I, therefore, set aside the conviction and sentences of all the petitioners and direct that Allah Ditta. Muhammad Alam son of Hasan Muhammad, Sardar Masih, Mona, Umar Din, Muhammad Hussain and Sharif shall be released forthwith if they are not lawfully required to be detained in connection with some other case.
Zafarullah, Buta, Mustafa, Muhammad Alam son of Shah Muhammad, Barkat son of Shah Din, Safdar and Sadiq Masih are on bail. Their bail bonds shall be discharged.
12. 1 had issued suo motu Notice to Muhammad Hussain and Alam son of Hasan Muhammad why their sentences should not be enhanced. 1u view of my above finding the suo motu notice is recalled. .